
    Givens’ Adm’r v. Davenport.
    Where the defendant in a suit for the foreclosure of a mortgage on real estate or negroes dies» it is not necessary, under the 772 art. Hart. Dig., to make the heirs interested in the mortgaged property parties; otherwise, where the suit is commenced against the executors or administrators in the first instance.
    Where a deed of trust and mortgage provided that the trustee should proceed to sell, in a certain event, upon request of certain beneficiaries in writing, it was held that although it were admitted that the trustee could not not have proceeded to sell if the property had remained where the trust deed had left it, (in Alabama.) yet, when he was prevented by the acts of the defendant (running the property off to Texas) from executing the trust in the specific manner pointed out in it, and had to resort to a suit to foreclose the mortgage, it could be enforced by the direction and according to the rules of the forum to which the trustee had been compelled to resort to secure the trust reposed in him.
    Where a deed of trust and mortgage recited that the grantee stood “indebted to the estate of Joseph A. Mabry in the sum of sixteen thousand five hundred dollars, as executor, Ac., ■ subject to a final settlement with the County Court clerk” (of Knox county, Tenueesee,) and, “but if the said grantor shall, in good faith, pay the within-named debt and interest, or so much of it as may be found due on settlement, &c.,(as aforesaid.”)it was hold that in a suit to foreclose the mortgage it was not necessary for the trustee to introduce any further evidence of the amount oi the indebtedness than was contained in the deed of trust, and therefore that the question whether the transcript of a record of the County Court (of Knox county, Tennessee.) ascertaining the amount to be less than the amount named in the deed was properly authenticated, was immaterial.
    A person who has been guardian of a minor is a competent witness in a suit on behalf of the heirs against an administrator to prove that ho had never received any money from the administrator as guardian; the objection would, at most, affect his credibility.
    Article 1108 Hart. Dig., only applies to proceedings of the County Court, and does not affect article 772, which provides that where judgment is recovered in the District Court in a suit against an estate for the enforcement of a specific lien on personal property, tbo property subject to such lien shall bo seized and sold by the sheriff, if it can be found, &c.
    A trustee in a deed of trust made in another State may follow the trust property to this State and enforce the trust by suit without making the cestui que trusts parties.
    Appeal from Houston. On the 4th of January, A. D. 1847, the appellee brought suit against appellant’s intestate for tlie foreclosure of a mortgage made and executed to him in trust in the State of Alabama. The mortgage was in substance—
    “This deed, entered into on the 12th dajr of Juno, 1843, between William T. Givens, of the county of Benton and State of Alabama, of the first part, and Joseph Davenport, trustee, as appointed by the parties for the purposes hereinafter expressed, witnesses, that the said William T. Givens stands indebted to the estate of Joseph A. Mabry, deceased, of the county of Knox and State of Tennessee, in the just and full sum of sixteen thousand five hundred dollars, as executor of Joseph A. Mabry, deceased, subject to a final settlement with the County Court clerk of Knox county, Tennessee, for which payment, well and truly to he made, Alexander Campbell and William Morris, both of the county of Knox and State of Tennessee, stand my securities as executor of the said Mabry, deceased, and being desirous of securing and making certain the payment of the above-named sum when it shall fall due, and holding harmless the above-named Campbell and Morris as my securities, and having confidence in the said Davenport, trustee as aforesaid, and it being agreed upon by all the parties to this deed, the said Givens, for and in consideration as aforesaid, and the additional consideration of one dollar paid by the said Davenport., trustee as aforesaid, has bargained and sold to the said Davenport for the security of the said debt due as aforesaid, and pledges, puts in trust, and makes over to said Davenport the following-described property,” commencing with lands particularly described hut not necessary here to be inserted, and then Id-lowed the names of nineteen negro slaves and some other personal property, and then continued: “ under the express stipulations following, that is to say, that the property herein mentioned and conveyed in trust as aforesaid is to remain in the possession of the said William T. Givens, to provide and keep the same as if it were really his own until as hereinafter described; that if the said debt shall not be paid on or before the 25th day of December, A. D. 1846, then, whenever the said Alexander Campbell and William Morris, their agents or attorneys, shall require the said Davenport in writing to proceed in the execution of the trust herein reposed on him, the said Davenport sha*, immediately on such requisition being made, take possession of said property herein conveyed in trust, and shall sell the same under the following restrictions, viz, after advertising the aforesaid property for thirty days at three public places in the said county, one of which shall be at the court house of the said county, shall sell the same at public outcry at Alexandria, in the said county, to the highest bidder for cash, which property the said Givens agrees to deliver up when called for; and of the proceeds of the said sales the said Davenport is to pay, first, all necessary expenses attending the business; and secondly, to discharge the above-named debt of sixteen thousand and five hundred dollars and interest; and thirdly, if there should be any overplus, to pay the remainder to the said Givens, &e., &c. But if the said Givens shall, in good faith, pay the within-named debt and interest, or so much of it as may be found due on settlement with County Court clerk of Knox county, Tennessee, and also pay the expenses of this conveyance, then all and every part of this conveyance shall be null and void, and the right of property mentioned shall be in the said Givens.”
    The plaintiff in his petition alleged that there was a balance of the debt still due and unpaid, amounting to seven thousand nine hundred and eighty-five dollars, besides interest thereon, at the rate of six per cent., for which the said-slaves were liable for satisfaction; that in November, 1845, or about that time, the said Givens, without the knowledge or consent of the said plaintiff, removed the said negroes, and other personal property, or the greater part thereof, from the county of Benton aforesaid, and brought them to Houston county, in the State of Texas; that the said Givens refuses to deliver up the said property to be sold to satisfy the said debt, interest, and costs; prayed for process against the said Givens, and citation, and for a decree that the said slaves and other property be sold to satisfy the said debt, &c., &c.
    The defendants answered, setting up credits he was entitled to on account of insolvency of debtors of the estate; that the debt had been paid subsequently to the execution of the deed of trust by his co-executor; that this suit is not prosecuted at the instance of Campbell and Morris, his securities, but at the instance and for the benefit of the heirs of Mabry; and a general denial. After these answers the death of the defendant was suggested, and William H. Lawrence made a party as his administrator.
    At the April Term, 1849, the administrator had leave to amend his answer; and he pleaded the want of proper parties, set out the names of the heirs of Givens, and prayed that the suit be dismissed for want of proper parties. This objection did not seem to have been acted upon by the court; it was not interposed until after the trial had been put off by continuances on the affidavit of the defendant twice.
    There was a jury trial, and a verdict for the plaintiff, and a decree of the court for the seizure and sale of the mortgaged property.
    The defendant moved for a new trial, which motion was overruled.
    
      Ochiltree and Jennings, for appellant.
    
      Yoakum and Taylor, for appellee.
   LipscoMB, J.

In the progress of the case and on the trial there were a great many exceptions taken; but they will not be noticed except such as have been presented by the brief of the counsel for the appellant. These ve propose to dlsenss and decide in the order in which they have been presented.

The counsel for the appellant contends that the judgment cannot be sustained ou the ground of a want of tiie proper parties in the suit; that the heirs of Mabry and the heirs of Givens ought to have been made parties; and that without such parties there could be no legal foreclosure of the mortgage. This position is rested for support on the 772d art. of the Digest. The latter part of tiie article, to which reference is made, is thought by counsel to be material. The section is long and it will not be recited. We believe that a fair construction of tiie last clause in the section in relation to malting the heirs parties refers to the first part, in which suits are brought against executors, administrators, or guardians, and that a suit brought against the intestate, whilst living, does not come within its provisions; that a different construction would not be sustained by an adherence to the grammatical structure of the section; and we do not feel authorized to give it a more liberal intendment, so as to embrace a different suit than tiie one expressly mentioned; that this suit having been commenced against the intestate, and the pleading made up before the death of the defendant, there was no necessity imposed by the law of making his heirs parties. The objection is therefore believed to be not well taken.

The second position assumed by the counsel for the appellant is that the trustee could not proceed to foreclose the mortgage until he had received the written request of the cestui que trusts, and he assumes that Campbell and Morris were the only beneficiaries; that until they were heard to complain, nobody else could complain or ask the benefit of tiie trust. It might well be admitted, without prejudice to the rights of the heirs of Mabry, that the trustee could not have proceeded to sell the property conveyed in trust if it had remained where the trust deed liad left it; but when he was prevented by tiie acts of the defendant from executing tiie trust in the specific manner pointed out in it, and had to resort to a suit to foreclose the mortgage and make tiie trust property available to those intended to be the beneficiaries, it could then be enforced by the direction of and according to the rules of the forum to which he had been compelled to resort in securing tiie trust reposed in him.

It is a mistake to suppose that the principal object of the trust was the security of Campbell and Morris, the securities, hut its main object was to pay tiie debt due from' the defendant to the estate of Mabry, and thereby, as an incident, to secure Campbell and Morris, who were the defendant’s securities for liis faithful administration of the estate of Mabry.

Tiie payment of tiie debt acknowledged in the deed to be due and the payment of which was declared to be the object of the trust was its chief object. The trustee could at any time after tiie time agreed upon in the deed as the time of payment of the acknowledged debt, on tiie intervention of anything that prevented it from being executed in the manner stipulated, resort to the aid of the courts for a foreclosure of the mortgage and carrying out the object of the trust, the payment of the debt. The intervention here was conclusive in defeating tiie execution of the trust, in its terms, by the removal of the property conveyed before the day of payment, and before, by its terms, Campbell and Morris had authority to request the trustee to proceed in its execution. This act of the defendant, in violating tiie faith lie had pledged and removing the property from the jurisdiction aud place where alone it could have been executed in tiie terms stipulated, superseded the necessity of waiting the direction of Campbell and Morris; and a request that the trustee would proceed to sell as stipulated by the trust deed would have been idle and fruitless. Under such circumstances, the trustee having a due regard for the objects of the trust, not only liad a right but it was his duty to take such lawful measures as would most effectually aid in carrying out tiie objects of the trust by a suit on the mortgage. But the object of the trust being for the benefit of the heirs of Mabry, they could have resorted to it for payment liad there been a failure from any cause in its execution in 1,iie mode stipulated, and they could not be required to look to the securities on the administration bonds; and it is in this aspect wholly immaterial whether the suit was prosecuted at the instance of Campbell and Morris or not.

A direct refusal on their part could not have defeated the right, and it is true that the trust was merely for their security. A fair construction of the trust deed shows that that was only to be an incident that followed tlie payment of the debt in this way, for which they were bound.

Tlie third point presented isas to tlie authenticity and legal effect of the transcript of the record of the County Court of Knox county,'Tennessee, and a great portion of the argument of tlie appellants was directed to this point. We believe that this argument was based upon an entire misconception of the deed of trust. It is in the deed of trust admitted that the sum of sixteen thousand five hundred dollars is due from the defendant; there is, however, a provision in the latter part of the trust deed that evidently was intended for iiis benefit if, on a settlement with the clerk of the County Court of Knox county, Tennessee, it should appear that lie was entitled to credits that would diminish the amount, lie was to have the advantage of such allowance. It is in the part providing for a defeasance or satisfaction that this provision is found, viz: “But if the said Givens shall in good faith pay the within-named debt and interest, or so much of it as may be found due on a settlement with the County Court clerk of Knox county, Tennessee.” It is therefore very clear that tlie settlement with the clerk could not add to or increase the amount for which the security was given, but it might diminish it. This placed the laboring oar in the hands of the defendant; if he could show before the time of payment stated in the deed that it was less than the amount agreed to be paid, lie would be credited therewith; but if such showing was not made the deed could be executed. The plaintiff was not required to procure that settlement for him; and therefore, whether it was legally authoritative or not, or what was its legal effect, did not rest on the plaintiff to show, and, as offered, it did not increase the amount of defendant’s liability.

We have not given the question of tlie authenticity of the transcript as critical an examination as we would have done had we believed that it was in any way material to the plaintiff, or could have injuriously affected the defendant; but it docs not seem liable to tlie objections taken' to it, and iiad it been necessary to tlie interest of either party, it might have been used; but as it did not, and could not, under the construction we have given to the deed, affect the interest of the defendant, whether it was properly authenticated or not. we shall therefore refrain from expressing any decisive opinion on it.

The fourth point made is to the admissibility of the evidence, taken by interrogatories, of tlie witness Pate, on the ground that he had been the guardian of some of the heirs of Mabry, defendant’s testator. The witness, in iiis answers, says that he had been guardian, but had resigned in 1844; that he had never received any money from the defendant as guardian. The interest is supposed to be in this, that as guardian for the minors lie might be called upon to account for the money lie had received as such guardian, and it would be his interest to show that amount to be as small as possible; if he had received nothing he was liable for nothing. This is putting the interest of the witness upon too many contingencies, and all supported by mere remote possibilities. It would not affect Iiis competency; it would, at most, only go to his credibility, and there was no error in admitting- it to go to the jury.

The last point presented is that tlie court erred in awarding execution in this case.

The counsel seems to place great confidence in this position, and considers it conclusive, and supposes that he is fully sustained by Article 11GS of tlie Digest. It is as follows, i. e.: “That any creditor of tlie estate of a deceased person, holding a claim secured by a mortgage or other lien which has been allowed and approved or established by suit, may obtain at a regular term of the court, from the chief justice of the county where the letters testamentary or of administration were granted, an order for the sale of the property upon Which he lias such mortgage or other lien, or so much of said property as may be required to satisfy such claim, by making his application in writing, and having a copy thereof served upon the executor or administrator, with a citation requiring him to appear and answer such application.” This article is the 59th section of an act passed 20th March, 1848, entitled an act to regulate proceedings in the County Court pertaining to estates of deceased persons, and if it stood alone would seem to be broad enough to embrace all cases of specific liens; but when taken in connection with another statute regulating proceedings in the District Courts, it will be clear that it does not do more than it assumes in its title — regulate proceedings in the County Court.

Art. 772 of the Digest, which is the 118th section of the act called the District Court act, and is entitled “An act to regulate proceedings in the District Court,” passed May 13th, A. D. 1S4G, provides what shall he done when a suit is against an executor, administrator, or guardian, for the recovery of money due from or damages incurred by their testator, intestate, or ancestor, if tlie judgment should be against them- — that the judgment shall be, “that the plaintiff recover his debt or damages, as the case may be, and costs to be paid in due course of administration; and no execution shall issue on such judgment..” Tlie last clause of tlie section, and tlie one having a more particular bearing on the question before ns, is as follows, i. e. : “ When the suit is instituted for the enforement of a specific lieu on personal property, the judgment shall be that tlie plaintiff recover liis debt and damages and costs,'and" that tlie property subject to such lien shall be seized and sold by tlie sheriff if it can be found, and proceeds of such sale shall be applied to tlie judgment and costs, and if there be any excess after such payment, the same shall be paid to the defendant.”

Tlie provision of law expressed in each of the acts to which we have referred - and cited is in force, and both binding and obligatory if there is no repug-nancy, and we can perceive none. Both are binding and obligatory in their proper sphere of action, and tlie titles of tlie acts to which they belong clearly define what that is — one in the County Court and tlie other in tlie District Court. If the record from the District Court only Axes the debt or damage, and not the lieu claimed, then that lien will bo ascertained and enforced under the law regulating proceedings in tlie County Court; but if tlie proceedings in tlie District Court not only fixes tlie amount of the debt or damage but also tlie lien, then the lien is enforced under the provisions of tlie law regulating proceedings in the District Court. In this view of tlie two acts, which we believe to he correct, there is not the slightest repugnancy, and tlie judgment and decree of tlie District Court in tlie case before us is ill strict conformity of tlie law governing that court. The objection, therefore, is not sustained. 1 have never known a case presenting,so little difficulty in law in which there was so profuse an expenditure of paper and ink in tlie formation of tlie record ; it Alls two hundred and forty-six pages of foolscap, in a case where tlie deed of trust on which it was brought preseuts a plain and perspicuous chart for direction as to its objects, readily comprehensible to tlie most ordinary capacity. The judgment is affirmed.

Judgment affirmed.  