
    Ross v. Norvell.
    Tuesday, March 18th, 1812.
    a. Continuances — Bill Recently Plied ior Discovery.~ A continuance ought not to he granted at law, on the ground that the party, a few days before that appointed for the trial, filed a hill in equity for a discovery of usury, as auxiliary tó his defence at law; unless he make affidavit, that the usury therein charged, had recently come to his knowledge.
    3. Same — Refusal—Appeal—Bill of Exceptions. — On a hill of exceptions to the opinion of the Court below refusing to grant a continuance; the Appellate Court ought not to reverse the judgment, for a ground of continuance not stated in such exceptions.
    3. Deed of Trust — Ejectment—Against Debtor — Witness-Trustee. — The trustee in a deed of trust, conveying property to he sold for payment of a debt, is equally the agent of the debtor and creditor, and a competent witness, in an action of ejectment against the debtor, in behalf of a purchaser from himself, (to whom he has made a deed with a warranty against himself and his heirs only,) to prove that the sale of the property was advertised, according to the terms of the deed of trust.
    In Quarles v. Lacy, decided by the Court of - Appeals, March 31st, 1814, it was again solemnly pronounced, that “trustees acting under private deeds of trust, as well as those acting under decrees of Courts of Chancery, should consider themselves impartial agents for both parties, and act in all sales for the interest of the debtor, as well as the creditor.”
    Thomas Norvell brought an action of ejectment in the Superior Court of law, for the County of Pittsylvania, against David Ross. The declaration was served the 16th of February, 1809. The defendant pleaded the general issue, &c. on the 25th of September following,, when, on the plaintiff’s motion, an order of survey was made; but whether it was executed or not, *does not appear in the record. The cause coming on for trial, September 28th, 1810, “the defendant, by his counsel, moved the Court, that the defence he relied upon was, that the debt for which the deed of trust, under which the lessor of the plaintiff claimed, was executed, originated in Usury; and that the lessor of the plaintiff was privy to the transaction, and supposed to be connected with it; that he had brought a suit in the High Court of Chancery, for the Richmond District, for the purpose of obtaining a discovery from them and others, touching the said transaction, as well as for general relief; a copy of the bill and the subpoenas, in which suit, (bearing date September 22d, 1810,) “with the schedules thereto annexed, marked A. and B., (one of which schedules was sworn to,) was exhibited to the Court; and that he was not able to establish the fact of usury, without the aid of a Court of equity. And this being all the reason offered for a continuance, he moved the Court to continue this cause until the lessor of the plaintiff, one of the defendants in the said suit in Chancery, had put in his answer. But the Court overruled the said motion, and ruled the defendant into trial; whereupon he filed a bill of exceptions.”
    On the trial of the cause, the plaintiff introduced a certain Edmund W. Rootes, (who was one of the trustees in the deed of trust aforesaid, and by whom, and the other trustee, the land in controversy was sold and conveyed to the lessor of the plaintiff, by a deed with special warranty against all persons claiming under them,) as a witness, to prove that the sale of the land was advertised, as required by the deed of trust; to which testimony the defendant, by his counsel, objected; “because the lessor of the plaintiff claimed solely under the deed from the said Edmund W. Rootes and Wilson Allen, trustees as aforesaid, and the said Rootes was interested in proving, that he had duly complied with the terms in the deed of trust, 
      and this was all the testimony offered to “prove that the land was duly advertised, except a paper purporting to be a newspaper published in Richmond. But the Court overruled the objection, and received the testimony of the said witness;” whereupon the defendant again excepted.
    Verdict and judgment for the plaintiff. The defendant appealed to this Court.
    Williams, for the appellant,
    made three points:
    1. The Court below ought to have continued the cause for the reasons stated in the first bill of exceptions. Ross moved for a continuance on the ground that he had filed a bill for discovery of usury. The affidavit annexed to the statement, showing the usury, was sufficient. I suppose it unquestionably true, that a man may go into equity to pray a discovery, in order to assist his defence at law. If it be objected that this bill in Chancery was filed only six days before the trial at law, several reasons may be assigned for the delay. Ross might have supposed, at first, that he could prove the fact upon the trial at law; and afterwards finding he could not, presented his bill in equity. The lessor of the plaintiff's obtaining an order of survey, induced the defendant to think that he did not intend to try the cause until the survey should be made. He therefore did not expect a trial. It should be considered, too, that the bill, being for a discovery, “'could have occasioned a delay for one term only, sines Norvell, who was one of the defendants in Chancery, might have answered it immediately. For the purposes of justice, then, one term should have been allowed; especially as the cause had never been continued for the defendant.
    2. Rootes, (the trustee,) was not a competent witness to prove that he had duly executed his authority. He was interested in establishing this; for if the jury had found a verdict for the defendant, on the ground that the advertisement, required by the deed, had not been made, that verdict would have been evidence in a suit against Rootes by Norvell, to recover back his purchase money. The case of Pollard v. Baylor, decided the 20th of October, 1808,  shows, that publication of the time and place is important, and essential to' justify the sale, and enable the trustee to convey. A mere conveyance from him, without a compliance with the terms of the deed of trust, under which he acts, cannot be effectual to transfer the legal title.
    3. The deed of trust did not authorize a sale without a decree of a Court of Chan-eery; such deeds being only a security for a debt. It has been decided, that where the deed is with power to the creditor to sell and pay himself, it is only a mortgage, under which he cannot sell without applying to a Court of Equity. And what is the difference between such a deed, and one which authorizes a third person to sell by direction of the creditor? The trustee has no right to determine what balance is due to the creditor. The creditor cannot be his own judge. The Court of .Equity would direct an account to be taken, before it would decree a sale. Suppose Ross had paid the whole of the money, (and there is nothing in this record to enable the Court to presume the contrary,) would it be reasonable that he should be turned out of possession by his own trustee, without being allowed a previous opportunity to prove that fact? The Court of law should not permit the trustee to sell and “turn his cestuy que trust out of possession. He could not convey such title to the purchaser as would enable him to maintain ejectment.
    Hay, for the appellee.
    The appellant was not entitled to a continuance. The motion was addressed to the sound discretion of the Court; and, on this occasion, that discretion was correctly exercised. I admit the superintending power of the appellate Court, and approve the decision in Hook v. Nanny, 4 H. & M. 157. I do not set up the decision of the Supreme Court of the United States, against it; but it is sufficient to show that the appellate Court ought not to set aside the judgment of the inferior Court on the ground that a continuance was refused, unless it plainly appear that injustice was done. The deed was executed in February, 1807; the sale took place in the month of May following: the suit was commenced in February, 1809; and in September, 1810, a bill for discovery of usury is filed. This unreasonable delay was, of itself, sufficient to preclude the defendant from a continuance on that account.
    But what advantage could arise to Ross from a continuance in this case? The fact relied on, the institution of the suit in equity, led to the conclusion that there was no defence at law. Why then delay the judgment? He could only be entitled to an injunction upon the terms of confessing judgment at Jaw.
    This bill was for relief in equity, as well as discovery; not for a discovery as auxiliary to defence at law. Where a motion is made on special grounds stated by the party, he is bound by the terms in which he chooses to. state his motion, 
    
    The proposition, too, was unreasonable. If the ground alleged for a continuance was good Jor .that term, it was equally good for continuing the cause until the suit in Chancery should be decided, however long it might last.
    *2. Rootes was a good witness to . prove that the sale of the land was duly advertised by him. In Goss v. Tracy, 1 P. Wms. 289, ‘ ‘it was declared that a grantee, when he appears to be .a bare trustee, is a good evidence to prove the execution of a deed to himself;” and with very good reason; for such a trustee has no beneficial interest, but the legal right only,  Abrahams v. Bunn, 4 Burr. 2254, and Peake’s Cases at Nisi Prius, p. 153, are cases similar in principle to this.
    If Rootes had acted improperly, (being trustee for both parties,) he was liable in equity only,  The verdict given in that case could not operate in his fa-vour, if Ross impeached his conduct in equity. Besides, if he had done wrong, he was liable to Ross, and was thus aggravating that wrong. Of course, he was swearing against his interest. But, at any rate, his evidence was superfluous, and unnecessary ; for the title passed to Norvell by the deed from the trustees. Whether the sale had been advertised, or not, was immaterial as to the legal title. The error of the Court on this point was therefore immaterial, if there was an error. The rule is, that if improper evidence bearing on the issue be admitted, however unimportant it may be, it is error ; but it is otherwise, if it be totally irrelevant to the issue,  as well as unimportant. For example; in debt on bond, if the plea be payment, and the Court, on the plaintiff’s motion, admit the assignor as a witness to prove that the defendant executed the bond; this, though an error, is immaterial.
    Wickham, on the same side.
    Usury, or not usury, the Court did right in trying the cause. On a motion for a continuance, the party must show that he has endeav-oured to be ready, and was guilty of no laches. There must be good ground for the continuance, taken in the abstract, and the party must have used due diligence and been prevented by circumstances not within his control. In Hook v. Nanny, 4 H. & M. 157, both these ^points were attended to: the materiality of the testimony wanted was sworn to: due diligence on the part of Hook appeared, and a recent discovery of the witness, who lived in North Carolina. But in this case, attention to dates will show that Ross had not used due diligence. On the contrary, he was guilty of the grossest and most palpable negligence, nay, of contrivance, to delay the trial unfairly. No fact is stated, or reason assigned, for not filing his bill sooner.
    The argument of Mr. Williams concerning' the order of survey, is far fetched. It does not appear that the cause was not tried upon the survey; for it was not said in the second bill or exceptions that all the testimony exhibited to the jury is spread on the record. Neither is the circumstance, that the order of survey had not been executed, alleged in support of the motion for a continuance.
    It is not sworn that Norvell was privy to the usury; or that he had notice of it at the time of the sale. The man who executes a usurious deed of trust; and stands by, permitting a sale, cannot have any remedy against the purchaser. This is not a bill for discovery, more than every bill in Chancery is. It prays relief in equity, and puts the plaintiff’s whole case upon the event of the suit; declaring that he is remediless at law. So far from being a ground for a continuance, such a bill was the strongest reason against it. Ross, indeed, carefully steers clear of the prayer for an injunction ; because the rule in granting injunctions is to do it upon the condition of confessing a judgment at law; which he wished to avoid: but an injunction might at any time have been granted on, motion. Whenever a man is charged at law, he is not to be permitted to pray relief in equity without waiving his right to relief at law. Besides, the plaintiff in equity has not a right, under the Act of Assembly against usury,  to avail himself in a Court of law, of the defendant’s answer to his bill for a discovery.
    *2. I had supposed the question, whether Rootes was properly admitted as a witness, settled by the remarkable case of Baring v. Reeder,  He was a mere trustee; an agent chosen by both parties; and not responsible in the event of Norvell’s being cast in the suit; for he warranted against himself and his heirs only. If Norvell should recover of Ross, and thereupon Ross should sue him for selling without advertising, he could not give this verdict in evidence in his de-fence, but would be driven to prove that he had not advertised. If interested at all, he was, therefore, interested against Norvell, and swore in opposition to his interest.
    But the most that can be said, is, that he was equally responsible to both parties: and if so, he was a good witness, standing indifferent between them,  The position’ in Busby v. Greenslate, 1 Stra. 445, that 1 ‘a vendor who does not covenant for the title, or enter into any warranty, is a good witness,” must be understood to mean any warranty bearing on the case; that is, any such warranty as would subject him if the plaintiff failed to recover.
    3. As to the right of the trustee to sell, I had thought it unquestionable that a deed of trust conveys the legal title to the trustee, and that a sale and conveyance by him passes the legal title to the purchaser; though the sale, if improper, may be set aside by a Court of equity. This is the first attempt to establish the doctrine that the trustee cannot sell without being authorized by a decree in Chancery. The practice has been uniformly otherwise, at least ever since the Revolution ; and I believe before. In Pendleton v. Wyld, (MS.) Call v. Scott, (MS.) and Wells’s heirs v. Winfree, 2 Munf. 342, sales made by trustees, without the sanction of a decree, were not attacked on the ground now taken, and were evidently considered valid by this Court. The same opinion has prevailed, without a single exception, in the Courts of Common Law and Chancery', and in the Federal Courts. In England it has not been customary until *lately, to give deeds of trust to secure the payment of debts. The fashion there has been, where the borrower of money wished to allow the- lender a more speedy remedy than he couLd have upon a mortgage, to give him a bond for a title and power of attorney to sell. But deeds of trust have been executed for many other purposes, and sales by the trustees have been good without any previous application to a Court of equity. It appears from 5 Bac. p. 5, that of late the practice is to make such deeds instead of mortgages; and no reason can be assigned for denying the trustees the power to sell, where the deed is to secure a debt, and allowing him that power where it is to raise money for payment of legacies, or for other purposes.
    If it be said that the trustee might sell, when nothing was due; the answer is, get your injunction, or give notice, and forbid the sale. The want of a previous account is no argument; or, if it be, the debtor, before he agrees to the deed, ought to consider that. One of the rights of property is that of parting with it; and he has full power to make such a contract, however improvident it may be. The argument, that an account should be taken, proves too much; for the same argument would equally apply, after an account taken and decree for a sale. It might still be contended, that subsequent payments had been made, and that a further account was needful, before the sale should take place.
    But this question is foreign to the subject in controversy; for even if the deed of trust had only the effect of a mortgage, the debtor’s remedy would not be at law, but in equity; since the legal title passes by the deed. Besides, the point concerning the legal effect of the deed, and the power of the trustee, is not reserved in either of the bills of exceptions.
    As to the materiality of the advertisement of sale; it was not decided in the case of Pollard v. Baylor, 4 H. & M. 229; but only that the jury ought to have found *the fact, and not evidence merely. That circumstance being immaterial, the error of the Court in receiving testimony concerning it, was unimportant. 
    
    Williams, in reply.
    If there was any contrivance in this case, it was on the part of Norvell, who lulled Ross into security by obtaining the order of survey; of the time of executing which he was to have notice. Insisting upon the trial without the survey, was a surprise upon him. The rule, that a judgment must be confessed at law, when application is made to equity for relief, is not universal. The casé of Bong v. Colston,  is a direct authority to the contrary. The grounds for a continuance, were full as strong as in Hook v. Nanny. Whenever the discovery called for should be made, there would be no pretepce for any further continuance.
    2. As to the competency of Rootes to be a witness; the cases cited by Mr. Hay do not apply. In Goss v. Tracy, 1 P. Wms. 289, the question was, whether a deposition, taken before the witness became interested, could be afterward read in his favour: and the Chancellor determined that it could: the reporter adds, that “in the principal case it was declared, that a grantee, when he appears to be a bare trustee, is a good evidence to prove the execution of the deed to himself. ” This is a mere obiter dictum: and at any rate, does not justify the admission of such a trustee to prove the propriety of his own conduct in making the sale.
    In Abrahams v. Bunn, 4 Burr. 2254, the Court state a case in which “the witness, having administered under the first will as agent to the executor, or as executor de son tort, was admitted to prove a codicil subsequent to the second will, setting up again the first will.” There it was said, the objection went to the creditor, and not to *the competency. The judges, however, were divided in opinion. But that case is not like this; for since he was only an agent to the executor, (there being an executor,) he was equally disqualified to be administrator, whether the first or second will was established. The case of Mabank v. Metcalf, 3 Atk. 96, merely states, that there is an established difference in the Court of Chancery between a trustee having only the mere legal right, and an .executor, with respect to admissibility to give evidence: but how far such a trustee is admissible is not stated. In Weller v. The Governors of the Foundling Hospital, 6 Peake’s N. P. Cases, p. 153, the objection was not on account of interest, but because the witnesses offered were, in form, defendants on the record. The objection was overruled, because they were sued in their corporate, and -not in their natural and individual capacities.
    Baring v. Reeder, and the other cases cited by Mr. Wickham, are, also, not like this case. It is a rule that a man is not to be received as a witness to prove that he has himself done what he ought to have done. He has no right to justify his own conduct by his own testimony. It is not true that Rootes bound himself for nothing, by the warranty against himself and his heirs only. He bound himself to comply with the trust, and to pass by the deed whatever he could legally pass. According to the authority of Pollard v. Baylor, he could pass nothing without advertising. If he failed to advertise, and his deed passed nothing, he was liable to Norvell for damages. He could not, therefore, be a witness to prove the fact of advertisement.
    If his evidence was illegal, it is error sufficient to reverse the judgment, upon the authority of Bee v. Tapscott, 2 Wash. 281; even admitting it were immaterial.
    3. Notwithstanding the formidable phalanx of all the lawyers on both sides of the water, I shall still contend that a sale by the trustee in a deed for securing the, payment of a debt, cannot, with propriety, be añade, -without a previous decree of a Court of equity.
    *The rule in equity is, that no act of the trustee can vary the right of the cestuy que trust. And even at law, in Doe, Lessee of Gibbons, v. Pott and others, Doug. 710, it was decided, that if the mortgagee convey the legal estate in trust for the mortgagor, upon his paying ■off the mortgage, such conveyance shall not, in ejectment, prevent the devisee of the mortgagor fiom recovering; the rule being, that ‘ ‘in a clear case, the trust estate shall not be set up in an ejectment to defeat the cestuy que trust. ’ ’ The case of Pollard v. Baylor, before cited, shows this at any rate; that a mere deed from the trustee to a third person, does not transfer the legal estate, so as to enable the plaintiff in ejectment, claiming under •such bargainee, to recover.
    In this case, Ross was, equally with Hancock, a cestuy que trust; perhaps, I should say more so. But, certainly, he was as much so as Baylor was. They stand on the same ground.
    If, then, a mere deed be not sufficient; but it was necessary to prove the advertisement of the sale; this proof should be •established by matter of record; for which a decree in equity is necessary. Again; according to Pollard v. Baylor, the question whether the debt has been paid, ought to be determined before a sale. This .proves that the trustee is not authorized to settle the accounts. If so, who is empowered to make the settlement? Surely, the Court of equity; not the creditor; for, •as well might the mortgagee claim a right to settle the accounts between himself and the mortgagor.
    This question, having never been decided by this court, ought now to be considered and met upon principle, without regard to a practice which, in this country, has been acquiesced in without discussion. It is admitted, that in England there has been no such practice, until lately, as Hr. Wick-ham contends. But, with respect to the recent practice, he appears to be mistaken; for the invention mentioned in 5 Bac. p. 5, is only for the benefit *of the mortgagor; not of the mortgagee. I suppose that, at all times, a mortgagor might sell his lands, pay off the debt, and pocket the balance. What I contend for is, that the mortgagee cannot sell, by himself, or his agent, the trustee; that the creditor cannot compel a sale, without resorting to a court of equity.
    Hay referred to the case of Moore’s Executor v. Aylett, 1 H. and M. 29, as showing clearly that, by agreement, a mortgagee might be empowered to sell.
    Curia advisari vult.
    
      
      Continuances. — See monographic note on “Continuances" appended to Harman v. Howe. 27 Gratt. 676.
    
    
      
      Bill of Exceptions. — See monographic note on “Bills of Exception” appended to Stoneman v. Com., 26 Gratt. 887.
    
    
      
      Deed of Trust. — See monographic note on “Deeds of Trust” appended to Cadwallader v. Macon, Wythe 188.
      Same — Due Advertisement of Sale — Onus Probandi.— In Fulton v. Johnson, 21 W. Va. 108, it was alleged by counsel that there is no presumption in favor of the regularity of a trustee’s sale and Pollard v. Baylor, 4 Hen. & Munf. 223, Ross Norvell, 3 Munf. 170, and Gibson v. Jones, 6 Leigh 870, were cited to sustain the allegation. But in passing on the point, the court said “These Virginia authorities have been considered by this court, some of them on more than one occasion. The conclusion reached by this court is, that after a trustee has made a deed to the purchaser, and it has been recorded, it will be presumed, that it was made in accordance with the terms and conditions of the deed of trust, and that it was properly advertised. Burkv. Adair, 23 W. Va. 139.”
    
    
      
      Note. The deed of trust empowered Wilson Allen and Edmund W. Rootes, the trustees therein mentioned, to sell the tracts of land on Staunton and Bigg river, thereby conveyed, (not conditionally, in the event that Ross should fail to pay the debt, intended thereby to be secured to Hancock, the cestuy que trust, but.) positively whether he should pay that debt or not; "such being declared to be the true intent and meaning of the parties; and that the whole, or the surplus, as the case might ge, should he applied to the discharge of a debt due to Gallego and Gibson, for the exoneration of a tract of land called Howard’s Neck, from their debt, and the bettering the security on the deed of trust, on that tract, for the benefit of the said Hancock and others.” The sale was to take place as soon after the 1st of April ensuing, as the trustees, or either of them, or the survivor of them, or the heirs of such survivor, should think proper, or the said Hancock should require, for ready money, at public auction, at the Eagle Tavern, in the City of Richmond or elsewhere, as they might think proper, after giving three weeks' previous notice, of the time and place of sale, in one or more of the Richmond newspapers. — Note in Original Edition.
    
    
      
       4H. &M. 229, note (1.)
    
    
      
       Woods & Bemis v. Young-, 4 Cranch, 237.
    
    
      
       Buster v. Wallace, 4 H. & M. 89.
    
    
      
       Mabank v. Metcalf, 3 Atk. 96.
    
    
      
       Sturt v. Mellish, 2 Atk. 612.
    
    
      
       Smith, and others v. Carrington and others, 4 Cranch, 70; Lee v. Tapscot, 2 Wash. 281.
    
    
      
       Turner v. Kendall, 1 Cranch, 118.
    
    
      
       Revised Code, 1st vol. p. 267.
    
    
      
       1 H. & M. 164.
    
    
      
      
         Meade v. Tate, 2 Call, 231: Dixon and others v. Cooper, 3 wils. 40; Bell v. Harwood, 3 Term. Rep. 308; 2 Bac. 586; Peake on Evid. 170.
    
    
      
      Note. Judge Bbooke observed, that his impression of the decision in that case was different. The Court considered the circumstances important, which should have been found by the jury. — Note in Original Edition.
    
    
      
       2 H. & M. 550, Faulcon v. Harriss.
    
    
      
       1 H. & M. 111.
    
    
      
      Note. See Craft v. Pyke, 3 P. Wms. 181, accordant.
    
    
      
       Selby v. Alston, Vesey, jun. 344.
    
   On Tuesday, November 17th, 1812, the following opinion of the court was delivered by

JUDGE ROANE.

“The court is of opinion, that the appellant, not having stated, in his first bill of exceptions, that the usury therein charged, or spoken of, had recently come to his knowledge, there was a negligence in his failing to file his bill to establish the same, until a period so near to the time of trial, which ought to bar him from alleging the same as a just ground of continuance: and as to the allegation of the appellant’s counsel, that the appellant may have been deceived and lulled into security by the order of survey made in the cause, at the instance of the appellee; while it is not perceived that this circumstance, so common to all causes in which the title or bounds of land may come in question, could have had that effect, it is a conclusive circumstance, in this case, in favour of the judgment of the superior court, that this was not stated as a ground of continuance at the time of trial, as appears by the bill of exceptions; which, if it had, the adverse party might possibly have shown that he had done away that inference, or undeceived the appellant in that particular.

“As to the second bill of exceptions: as the witness, Rootes, was a mere trustee and agent for the parties, and as the verdict in the case before us could not be used by *him in a subsequent action brought against him for the same cause, the court is of opinion, that he was a competent witness, and that therefore, there was no error in permitting him to give testimony in the cause.

“With respect to the general question, supposed by the appellant’s counsel to have arisen in this cause, touching the necessity of the trustee having the sanction of a court of equity to enable him to sell, the court is of opinion that it either does not necessarily arise in this case, or that, under the particular circumstances thereof, it ought to be adjudged against the appellant in a court of law; and, upon the whole, that the judgment should be affirmed.”  