
    PATRICK MURPHY vs. DANIEL C. MOORE & AL.
    A bill cannot be brought by one, who indemnifies another, upon an equity of the principal, without making the principal himself a parly.
    Though, in an action of detinue for slaves, juries generally and properly, when their verdict is for the plaintiff, find the value of the properly higher than it really is, in order to enforce the delivery of the slaves ; yet, that is not the case, where it is known that the defendant cannot discharge himself by a delivery, as if the slaves be dead or owned by another person.
    Appeal from an interlocutory order of the Court of Equity of Sampson County, at tlie Fall Term, 1845, liis Honor Judge Caldwell presiding, which order directed the inj unction heretofore granted in this case, to be dissolved.
    The following case was presented by the Rill and answers.
    The plaintiff, as the equitable assignee of a judgment for about #800, interest 'and costs, which had been recovered by Samuel Houston against William McGee in his life-time, issued an execution on the same, and indemnified the Deputy Sheriff of Duplin, (one Hussy,) to levy on and sell five certain slaves, as the property of William McGee, to satisfy said execution. Thomas McGee, one of the present defendants, brought an action of detinue for the said slaves against the Deputy Sheriff, and obtained a judgment for them. And their value, in tolo, was. assessed by the jury at $1,600, and damages for their detention, at $30. Thomas McGee issued a distringas, with a fieri facias clause, against Hussy, for the production of the said five slaves, damages and costs. Murphy then filed this bill in his own name, and as the administrator of William McGee, who had recently died, praying the Court to enjoin Thomas McGee’s execution against Hussy. The bill alleges, that Thomas McGee, Sen., was the father of Thomas McGee, Jun., Elizabeth McGee, (now the wife of Daniel C. Moore,) and William McGee, (the plaintiff’s intestate) ; that he, in the year 1842, conveyed a number of slaves to his daughter, Elizabeth McGee, by an absolute deed of gift, but upon a secret trust and promise on her part, that she would convey a certain portion of the said slaves to his son, William McGee, (who w.as then insolvent and a fugitive from justice,) whenever it was safe for her to do so. Afterwards, the bill alleges, the father procured Elizabeth to deliver up the said deed to him, and place it in the hands of one Gillaspie, in order that two other deeds might be drawn, to be executed by the father, one conveying absolutely a portion of the said slaves to her, Elizabeth, and the other conveying the balance of the said slaves to her upon trast for William McGee. But that, before Gillaspie could prepare the said two draughts of deed for' execution, the father died. The bill further states, that afterwards Elizabeth applied to Gillaspie for the .original deed, which had been deposited with him for the purpose aforesaid, and that she received it, and that she has since set it up, and is now claiming under it; that, afterwards, in the year 1843, the said Elizabeth conveyed by deed to Thomas McGee, (the plaintiff in the action of detinue) in trast for William McGee, tbe slaves now in controversy ; that either through mistake or fraud, no words of perpetuity were inserted in the trust for the representatives of William McGee: whereby the plaintiff is advised, that an interest for life only was created in William, leaving a resulting trust for the benefit of Elizabeth, the maker of the deed. The bill further charges that, at the Sheriff’s sale, the negroes were purchased at the price of $ 1,025 by one Bowden, as the agent of the defendant Moore, and that Moore has them in possession, and therefore ought not to enforce or require the trustee to enforce the judgment at law, at all events, for more than he paid for them. The bill furthermore seeks of the trustee an account at least of the rents and hires of the said slaves during the life of William McGee. The-injunction was granted.
    The defendants answered tbe bill -, and tbey deny any knowledge of any trust, secret or otherwise, created by the father, Thomas McGee, Sen. in favor of William McGee. Elizabeth, now the wife of Daniel C. Moore, another defendant, answers and says, that her father shortly before bis death, did convey to her, bjr a deed of gift, certain slaves ; but she denies, that the said deed was made and executed upon any condition, that she should convey any of the said slaves to William McGee her brother, or a trustee for him, or that any promise or agreement was ever made by her to her father, that she would hold any portion of the said slaves, in trust for William. She states, that the said slaves were conveyed absolutely to her by her father, by his own free will for her own benefit. She admits, that some time after the execution of the deed, her father, in a conversation with her, remarked — “ My daughter, you must provide, or I know you will provide, for my son William”; when she desired her father to make some provision for William, by conveying a portion of the slaves given to her, for his benefit. And to this end, she delivered the deed to Gillaspie, with instructions to prepare other deeds. But she denies that she surrendered the deed to Gillaspie,- upon - any request made by her father, to carry out any previous agreement made with him at the time of its execution. She states that her father lived several weeks after she placed the deed in the hands of Gillaspie. This defendant states, that she has reason to believe, that her father had ad- , vanced to William several slaves, and had paid debts for him, equal to the share of his estate given to her. This defendant admits, that she did, in the year 1843, convey to Thomas McGee, (another defendant) certain slaves in trust, for the support and maintenance of her brother William for his life ; but she denies, that the same was done with any fraudulent intention to evade any engagement she had made with her father. She knew that her brother William was in very indigent circumstances, and she desired to make some provision for him for his lifetime, and to this end, just before her marriage with Mr. Moore, she applied to Dr. Gillaspie, a man of integrity, to write a deed conveying certain of her slaves to Thomas McGee, in trust for the support of her brother William for his life-time ; which was accordingly done. She admits that William lately died, and that the plaintiff is his administrator, and that she and her husband' claim a resulting trust in the said slaves. The answer of Moore denies, that he purchased the negroes at the Sheriff’s sale, or that Bowden purchased them for him, or sold them to him afterwards. He says that Bowden bought for himself ; that for a short time after the sale, he, Moore, had the negroes in his possession for Bowden, but that he did not claim them, and that Bowden now owns them and has them in his possession.
    Thomas McGee, the trustee, after denying any knowledge of any trust made by his father for William his brother, as stated in the bill, says that he has paid $400 since the date of the deed to him, for his brother William’s maintenance and support, and that he has promised to pay $80 more, for his medicine bill in his last illness. That he has never received but $50, as rents and hires for the said slaves; and that he has nothing now in his hands to account to the administrator of William McGee.
    On the answers coming in, the Court dissolved the injunction ; from which the complainant appealed.
    
      W. H. Haywood, Strange, and Warren Winslow, for the plaintiff.
    
      D. Reid-, for the defendants.
   Daniel, J.

The defendants have denied, in their' answers, any knowledge of any trust in the slaves for William McGee, created by Thomas McGee, Sen. either bjf any secret or public agreement with his daughter Elizabeth, or any one else. They furthermore deny any belief that such a trust was ever created or intended. Elizabeth Moore, (formerly McGee,) denies positively, that her father ever requested her, before or after he executed the deed of gift of the said slaves, that she should hold any portion of them in trust for her brother, William McGee. Thomas McGee, the trustee under the deed executed by Elizabeth, denies that he hás one cent for rents and hires, to account to thé administrator of William McGee. He avers that he had advanced about $400 for his, William’s, support, after the date of the deed from his sister to him, in trust; and that he had promised to pay $80 more, the medicine bill in his last illness ; and that he had never received, or was entitled to receive, more than about $50 for rents and hires of the slaves he had charge of for the use of William McGee. Hussy, the defendant in the judgment at law, should regularly have been á party plaintiff in that bill. A bill cannot be brought by one, who indemnifies another, upon an equity of the principal, without making' the principal himself a party. But in looking into the case, we thought the merits so plain in favor of the defendants to the bill, that we concluded to decide the causé, upon the strength of the answers themselves. As for the equity, which the bill sets up by reason of the purchase of the negroes by or for Moore at the Sheriff’s sale ; there are two answers to it. First, the fact is positively denied in the answer. Secondly, if it were true, the plaintiff could not be relieved on it. If he had thought proper to have gone into the Court of Equity, in the first instance, to obtain satisfaction out of the negroes as the equitable property of William McGee for life, the life estate been sold, and then, the plaintiff, as the creditor, would have got whatever that would have brought iu the market — the purchaser running the risk of W. McGee’s life. That sale would not have disturbed Moore’s interest in remainder, nor been wrongful to the trustee ; and there would have been no cause of action to any one. But the plaintiff and the Sheriff did not adopt that course, but sold the negroes out and out, as the absolute property of William, liable to execution under the Act of 1812. That made it the duty of the trustee to bring the action at law, in which, as the case turns out, the recovery is in. money. Now, pending that action, William McGee died, and the plaintiff insists, that he ought to have a deduction from the judgment proportional at least to the value of his life estate, at the time of the sale, compared with the value of the remainder. But we think clearly, that he cannot. For, by the plaintiff’s own act, the negroes have been turned into money in the hands of the trustee ; and the only right the plaintiff could elaim therein would be the interest of the fund during William’s life. That, in truth, he has ; for the value of property recovered in detinue does not hear interest, and, therefore, there is not and will not be, when the judgment at law is collected, one cent, as regards the sums recovered for the value of the negroes, in the hands of the trustee, which ought to belong to William McGee, or to the plaintiff as his administrator. Thomas McGee is the trustee as well for Moore as for his brother William; and it is not against conscience that Moore should claim, upon the falling in of William’s life estate, the capital or full value of the negroes — for he ought to have had them specifically, and may therefore rightfully claim the whole value of them. It is not intimated in the bill, that the verdict, found the value higher than it truly was. It cannot be presumed that it did; for although juries often and properly so find in order to enforce the delivery of the slaves, yet that is not the course, where it is known that the defendant cannot discharge himself by a delivery, as if the negro be dead or is owned by another person. From that circumstance, and the sum found compared with the number of slaves, and the silence of the bill on the point, we must take it, that only the true value was given. Now, it is manifest that there is no reason why Moore should not have that. If he bought at the Sheriff’s sale for-less, it was his good fortune and the plaintiff’s fault; and, as he would have lost the whole of his purchase money, if William McGee’s title proved defective, he may justly claim any advantage from a purchase at less than the real value. It is true, the verdict includes also the hires of the negroes while the suit was pending, and that they do belong to William McGee, as the profits in his time. But that cannot avail the plaintiff upon these pleadings, because the trustee swears, that he was in advauce for William a much larger sum, besides his expenses in this litigation. There is, therefore, nothing in this part of the case on which the plaintiff can have relief.

We are unable to see any ground, for the reversal of the decree ; and it must be affirmed with costs.

Per Curiam.

Ordered to be certified accordingly.  