
    *Daniel Gilbert v. Calvin G. Sutliff et al.
    Where A had transferred his store of goods to B, upon certain trusts, in one of which the complainants below were beneficially interested, and had also assigned to B a contract for other property, for the express purpose of indemnifying said complainants, they had a right to call B to account in chancery; and it was not necessary, before doing so, to obtain a judgment against A.
    If, in a bill filed in such a case as that supposed, on an averment that B fraudulently holds in his possession, in trust for A, a large amount of real and personal estate, and is also largely indebted to him, it is sought to subject this property and indebtedness to the complainants’ claims, the objection to the bill, that it should have followed a judgment against A, should be taken at the hearing, if not before. It comes too late after final decree.
    A court is not bound to dismiss a bill on account of a misjoinder, where the defect is not specially pointed out. It may do so, swa sponte, or it may not. Whether it shall do so or not, rests in its sound discretion.
    As a general rule, a trustee is not entitled to compensation, in the absence of an agreement to pay. He may claim for expenses, but lie must render his account, and, if not admitted, must clearly establish it. If he maladminister, and refuse to account, both compensation and expenses may be refused.
    A trustee may not be accountable for an honest mistake, but where his duty is so plain that no man of ordinary intelligence could mistake it, he is responsible, if he has that intelligence. He can not shield himself from responsibility by doubts that he takes no measures to either verify or dispel
    Bill of review, reserved in Summit county.
    The object of the bill is to reverse a decree of the court of common pleas for Portage county, to which the case had been certified from Trumbull county. The original bill was filed by Ruell Miller, Levi Sutliff, and Calvin G-. Sutliff, against Garry Lewis, Daniel Gilbert, and others. It alleged that in December, 1834, the complainants, together with Chauncey H. Wilcox (since deceased), Matthew Acheson, and Samuel H. Sutliff, became sureties for said Garry Lewis to the Western Reserve Bank, on a bill of exchange, discounted for Lewis at the bank for the sum of $5,000, on which two judgments, one against maker, and the other against indorsers, were obtained at the November term of the Trumbull common pleas, 1835. The bill further alleged, that the property of complainants, or some of them, had been seized and sold on the judgment against them, and two-thirds of its appraised *value, [130 and at a large amount of costs, to apply in satisfaction of said judgment, and had been sacrificed, and that complainants were then liable to have their property taken to satisfy said judgment, etc. The complainants averred that the said Garry immediately after procuring them to indorse, as aforesaid, fraudulently divested himself of all his property, both real and personal, without making any provision, either for paying the draft, or indemnifying complainants, and had been ever since bankrupt, and worthless, having no property subject to levy on execution at law. They further represented that Daniel Gilbert, at the time of the indorsement of the draft aforesaid had, and held in his possession, “ and still holds the same” fraudulently, as against complainants, lands, tenements, goods, chattels, and property, and choses in action of the said Garry Lewis, and in trust for him, the said Garry, or is indebted to the said Garry for the same in case he, the said Gilbert, claims title thereto. The bill proceeds to describe a tract of 140 acres, east of Warren, for which Gilbert agreed to pay Garry Lewis $100 per acre. And the bill alleges, that about the same time, the said Gilbert took a conveyance from the said Garry of another farm, known as his homestead, in Howland township, containing about 400 acres of land, and agreed to pay Lewis therefor $30 per acre. The bill further alleges, that at the time last aforesaid, Gilbert hold, and that ho still holds, the equitable interest of said Lewis in a certain lot in Warren, with buildings thereon, known formerly as the Lowe property. It is averred that the said Lewis, about the time that complainants and the said Chauncey H. Wilcox indorsed for him, assigned said equitable interest in the Lowe property to Gilbert, in trust to indemnify said indorsers, and Gilbert was. by the terms of the assignment, to surrender said interest to the indorsers on demand, or cause the same to be sold, and the avails to be applied to indemnify them. It is further averred, that after indorsing, as aforesaid, and being ajoprehensive that they should have said draft to pay, complainants demanded of Gilbert said equitable interest, 131] and performance *of said trust, according to its true intent and meaning; but Gilbert refused to surrender said equitable interest, nor would he either sell the said interest himself, or suffer the same to be sold, but still holds the same in violation of his trust. It is also alleged that had Gilbert performed his trust in good faith, on demand by complainants as aforesaid, or within a reasonable time thereafter, the said trust property would have been amply sufficient to indemnify complainants and the said Chauncey H. Wilcox; but, in consequence of Gilbert’s refusing to perform the trust in good faith, the property has been so deteriorated in his. hands, by changing in its value, and by neglect thereof, as well as by natural decay, that it is at this time but of little value. It is averred, that by reason of his broach of trust, Gilbert should be compelled to indemnify complainants and the said Chauncey H. Wilcox against their said indorsement.
    Complainants further state, that Lewis, on or about the 19th day of January, 1836, assigned to Gilbert, in trust, a large store of goods in Warren, worth, at the time of assignment, more than seven thousand dollars, and at the same time Lewis assigned to Gilbert about four hundred tons of hay, worth more than two thousand dollars; for all which store of goods and hay, Gilbert is still indebted to Lewis.
    Complainants further state, that when said judgments were rendered against them, Gilbert had, and that he still retains, a vast amount of other property, “ both real, personal, and mixed,” amounting to more than $30,000, which justly belongs to Lewis, and which Gilbert holds in trust for him; or, if the title is vested in Gilbert, that he is indebted to Lewis for the same. It is averred that said property or its avails ought, in equity, to be subjected in Gilbert’s hands to pay and indemnify complainants and Wilcox’s administrators for what they have been compelled to pay and sacrifice by reason of their indorsement. Complainants aver that Gilbert is otherwise justly indebted to Lewis in more than $12,000; and they further represent *t-hat Lewis is possessed of an equitable [132 interest in a lot of land in the town of Vienna, in Trumbull county, being the west part of lot 47 — being the same upon which he now resides — and also an equitable interest in a lot in Warren, known as tb.e academy lot; but the complainants are ignorant of the true nature of said Lewis’ equities in said Vienna land and said academy lot, and they therefore ask that Lewis disclose his true interest therein, etc.
    The prayer of the bill is, among other things, that on the final hearing, the property aforesaid may be subjected to the payment of the said indorsers, and to make them good for all their losses, payments, disbursements, and liabilities, incurred by reason of said indorsement, in case the said property remains in the hands of said Gilbert, in specie; or, if he has disposed of the same,, then that from his own moneys he pay the same, etc.
    An amended bill made parties Matthew Atcheson and Samuel H. Sutliff, as joint indorsers with other complainants, and made other new parties not necessary to be named in this statement' of the case.
    The answer of Gilbert, among other things, sets up that he purchased the farm, lying near Warren, containing 140 acres, of Garry Lewis, in the spring of 1836, for $100 per acrethat he has'a title thereto, and is not indebted for any part thereof; that he purchased the farm in the township of Howland, known as Lewis’ homestead, in the month of February, 1836, for the sum of $11,500; that he now has a title to the same, and is not indebted to said Lewis for any part thereof. It also avers that about the time Calvin G. Sutliff and the other indorsers indorsed the draft for which they are liable,, Lewis had about two hundred tons of hay, which he was about to send to a southern market, and respondent understood that it was agreed that Calvin G. Sutliff should go to the South with the hay, Bell the same, receive the avails, and, upon his return home, apply the same in payment of the said §5,000 draft. It further states, that on the 19th day of November, A. d. 1835, Lewis assigned, in 138] *blank, a. written contract, between himself and Leicester King, for the sale of the Lowe property in Warren, then owned by said King, upon which contract Lewis had paid §538. Said contract and property was to be held by respondent, in trust, to secure and indemnify said indorsers, if they should be compelled to pay any moneys in consequence of having indorsed the draft for Lewis. The answer denies that the complainants called upon him, and demanded of him said equitable interest in the said property, and that he should perform the trust; but it admits that Milton Sutliff, as attorney for some two or three of complainants, •called upon respondent some time after the assignment was made, .•and demanded said contract, stating that he would deliver the same to the sheriff to be sold as personal property. But as he did not exhibit, nor offer to deliver up the receipts which respondent had ,given when the contract was assigned and delivered to him, he •refused to deliver up the samé; and also because he believed that •if he did so deliver up the said contract, himself and the other indorsers and bail for Garry Lewis would lose the security which ■they held by virtue of said contract, without materially lessening •their liabilities; and because respondent doubted whether the .sheriff could sell the said contract, under the assignment, without the intervention of a court of equity. The answer also states that respondent had become surety for the payment of the §5,000 draft by giving bond for §10,000 to the bank, conditioned on the payment of said draft by the drawees, drawer, or indorser. Respondent further says that if he had given up the assignment, and allowed the property to be sold for the benefit of complainants and Chauncey H. Wilcox, or sold the same himself, it would have :sold but for little more than sufficient to pay King his demands .against the same ; and instead of having suffered the property to • deteriorate and decay, by neglect, etc., large and valuable improvements have been made upon the same by Garry Lewis, in whose • care it has been ever since the assignment; and that said property 134] is *now more valuable than it was when Milton Sutliff demanded the contract and assignment of respondent.
    The answer further avers that the respondent purchased the .stpre goods mentioned in the bill, for a valuable consideration of Lewis; that the purchase and sale were, in all respects, a bona fide business transaction; and that he does not now, nor never did, hold said goods in trust for Lewis; but that, after the sale apd transfer of the said goods, the complainants, or some of them, broke open respondent’s store-room, and caused said goods to be seized and sold by the sheriff as the goods of Lewis; and afterward respondent prosecuted complainants and one Henry W. Smith for the trespass; and recovered damages against them for carrying off and injuring his goods.
    The answer also states that Garry Lewis, being indebted to respondent in the sum of $1,200 upon a judgment bond, respondent purchased of said Lewis a quantity of hay to secure said debt, and took a bill of sale therefor; that afterward the complainants caused said hay to be seized and sold by the sheriff under an execution against Lewis and others; and that respondent instituted a suit against complainants for the trespass, which suit was afterward amicably settled before trial.
    The answer denies that respondent holds property to the amount of $30,00.0 in trust for Lewis, or any other amount; and it also denies that respondent is indebted to the said Lewis- in the sum of $12,000, or any other amount.
    ' The answer admits that Lewis has an equitable interest in the land in Yienna township; but respondent holds a mortgage upon said land — in which other land is included — formerly given by Lambert W. Lewis to Calvin Cone and others, as security for himself for claims he holds against Garry Lewis, and for having become security for said- Lewis; and also as security for others who have claims against the said Lewis, whose claims are in respondent’s hands.
    The answer admits that Lewis has an equitable interest in the-academy lot in Warren; but respondent avers that he *has [135 a lien upon Lewis’ interest in the lot to secure him for money advanced upon a judgment in favor of John "W. Seely, upon which respondent was security — said academy interest having been conveyed to respondent to secure him for so becoming surety.
    (The terms of the transfer of the Lowe property sufficiently appear in the opinion of the court.)
    . At April term, 1843, the cause was referred to Horace Wilder, Esq., as special master commissioner, with power to take Testimony of witnesses and to examine the parties, and to report: 1. Whether the complainants, or either of them, were the sureties of the said Garry Lewis, as alleged in the bill; and if so, whether said Garry Lewis has saved them harmless; and if not, wherein, and to what extent they, or either of them have been damnified; how much they, or either of them, have paid, or are liable to pay, by reason of becoming such surety ? 2. Whether said Garry Lewis is now, and was at the commencement of this suit, insolvent or otherwise? 3. Whether said Daniel Gilbert, at the time said complainants became sureties as aforesaid, or at any time thereafter, held in his hands any property, real or personal, for the security of said complainants, or either of them; and if so, what property, and what were the terms on which he held it ? Whether said property, has been applied for the indemnity of said indorsers, and if not, whether said property, or any of it, has been demanded by said' indorsers, or either of them, of said Gilbert, and if so, at what time, and whether said Gilbert refused to have said property so applied, and at what time, and what was the value of said property at the time of said refusal, and what is its present value, and whether the same, or any part thereof, or the proceeds thereof, is now in the hands of said Gilbert; and if not, what disposition has been made of it; and whether said Gilbert has received from said trust property any rents or profits of any kind, and if so, how much ? 4. Whether said Daniel Gilbert, at the commencement of this suit, had in his hands 136] any property, whether real or personal, ^belonging to said Garry Lewis, or in any manner held any such property in trust for the use or benefit of said Lewis, and if so, what property, and what was its value? 5. Whether said Daniel Gilbert, at the commencement of this suit, was indebted to said Garry Lewis in any amount, for any cause or consideration whatever, and if so, what amount? And that he state fully an account between said Lewis and Gilbert, specifying, if any, the property, received by said Gilbert from said Lewis, and the price paid, or agreed to be paid for the same, together with any indebtedness of said Lewis to said Gilbert, and any payments made by said Gilbert for any such property.
    The report of the master embraced the following facts: That the complainants, together with Chauncey H. Wilcox, Samuel H. Sutliff, and Matthew Atcheson, did indorse for Garry Lewis as sureties for him, a bill of exchange for $5,000, which Lewis procured to be discounted; that no part of said bill having been paid, the holders, the Western Reserve Bank, instituted suits thereon, and recovered a judgment, first, against said Lewis for $5,461.34, besides costs; and, second, against all said indorsers, except Samuel H. Sutliff, who had not been served with process, for the same amount of damages and costs.
    An execution upon the judgment against Lewis, was issued in January, 1836, and by the direction of the complainants it was levied, together with others, upon a large quantity of goods, and merchandise, and hay, as the property of Lewis; but which were afterward claimed by Gilbert under bills of sale, executed by Lewis, to him, January 19,1836. The said property was sold, on the executions, for the sum of $3,135.73, to apply to said judgment and costs, leaving, after the deduction of the increased costs, the net sum of $3,028.07 to be so applied. Nothing further was ever paid on the judgment by Lewis, and the balance still remains due, except so far as there should be a credit thereon for moneys collected of the indorsers. That balance, deducting said credit, is found to be, including interest, the sum of $2,277.09, *with which [187 amount Gilbert is credited as the assignee of the Western Reserve Bank.
    On the 19th of May, 1838, on an execution issued against the indorsers, the land of Calvin G. Sutliff was sold for $1,198. Said land was appraised at the sum of $1,796.66, and the same appears to have been the fair value of the land. Crediting the sureties with the amount thus made and applied, and also with the sum of $3,028.07, the amount made on the judgment against Lewis, over and above the costs, there will remain due on said judgment against the sureties, computing interest to October, 1843, the sum of $2,292.52, which the complainants are liable to pay.
    Before the discounting of the draft by the bank Gilbert became responsible for its payment, by executing a bond so conditioned. In March, 1839, at the instance of-the bank, Gilbert assumed, and paid to the bank, the balance then due on the judgment ($1,972.12), and took assignments from the bank to himself of both said judgments.
    On the 10th of July, 1838, Calvin G. Sutliff purchased back his land of the bank, for the sum of $1,280.66.
    At the August term of the Supreme Court, 1839, in Trumbull county, Gilbert obtained judgment against complainants, Chauncey H. Wilcox, and Henry W. Smith, (sheriff,) in an action of trespass; damages, $5,354.61, and costs; the said damages being the estimated value of the goods and merchandise seized and sold as. the property of Lewis, as before mentioned, with interest. That judgment has been paid in full to Gilbert, the complainants having each contributed one-fourth part. But, though the payment thus made by complainants was a remote consequence of their having indorsed the draft, the master is of opinion that a court of equity can give them no relief, and that they have not thereby been “ damnified ” within the meaning of the interlocutory decree in the cause.
    Lewis, therefore, has not saved the complainants harmless for be-138] coming sureties for him. The sum paid by Galvin G. *Sutliff in consequence of becoming such surety, by the sale of his land will, with interest to the first day of next term, amount to $1,589.75. The conqplainants arc still liable to pay the balance of said judgment, amounting,'with interest to the first day of next term, to $2,292.52.
    The master finds that the proper rule for estimating the damages of Galvin G. Sutliff, is the amount for which the land sold; but if the court should be of opinion that the rule ought to be to estimate the value of the land so sold, then said Sutliff would be damnified, including interest, the sum of $2,384.71; and if the rule shall be the rate he paid the bank for his land when he repurchased it, then it amounts to $1,688.54.
    Lewis was insolvent at the commencement of this suit, and has been ever since. Said Lewis had, on the 19th of November, 1835, a written contract from Leicester King for the purchase of the' Lowe property. On that day Lewis assigned and delivered said contract to Gilbert, and at the same time Milton Sutliff, as attorney for indorsers, received from Gilbert a writing acknowledging the receipt of such assignment and contract. The object of said assignment, in substance, was to secure the indorsers of the draft, and also to secure Gilbert for his liability to the bank on the bond. The contract was to be held by Gilbert for the security of the indorsers, and if any execution should be issued against any of them by which they should be compelled to turn out property to the sheriff, and Lewis, having been informed thereof, did not immediately pay the amount demanded, or turn out sufficient property to satisfy the execution, then and in that case said contract was to be delivered to tho sheriff, on such execution, and sold to satisfy the same. The said contract and property have not been applied for the indemnity of said indorsers, or either of them.
    In January, 1836, the sheriff called upon the indorsers for property to answer the execution aforesaid, on the judgment for the bank; and Milton Sutliff received from them, but not from Acbeson, an order on Gilbert for said contract. He ^thereupon de- [139 manded the contract of Gilbert, who refused to surrender it to the sheriff, or to the indorsers. In April or May, 1838, and while his land was under the levy by which it was afterward sold, Calvin G. Sutliff requested Gilbert to surrender said contract to the said indorsers, but he refused. There is no evidence to show whether his ■ receipt for the contract was produced and tendered to Gilbert at the time when the contract was demanded of him. The said contract is still in the hands of Gilbert, but the property embraced in it has been taken back by the vendor, Judge King (under what arrangement does not appear), and there is no evidence that Gilbert has ever received any rents or profits from said property. The said property consisted of an acre of land and a large house' and out-buildings. About $10,000 was expended in the erection of said building and other improvements on the lot. The interest of Lewis was derived from a contract to purchase the same of King for $4,000, to be paid, $1,000 in goods, on demand, and the balance in nine equal annual payments, with interest, the first of said annual payments to be made 24th of September, 1836. There was paid by Lewis, in goods, and indorsed on the contract, $538, and within two years from the date of said contract, September, 1834, there had been paid, including said $538, about $1,000; but whether any payment, other than that first mentioned, was made, prior to February, 1836, does not appear. On the 1st of May, 1838, there was due, and to become due to King for the property, about the sum of $3,800, of which there was then due about $1,360. Subject to King’s lien for said balance of the original purchase money, Lewis was the equitable owner of the property.
    According to the estimates of thirteen witnesses for complainants, the said property would have sold, in 1836, for from $10,000, to $12,000. In 1837 or 1838, Lewis, according to his statement to •King, was offered $10,000 for it, but refused to sell for less than $12,000. On the other hand, seven witnesses for respondent estimate the said property at from $3,000 to $4,500 value. The complainant’s witnesses ^admitted, on re-examination, that at [140 ' forced sale, the property would not produce more than $5,000 or $6,000. The master, in view of all the evidence, reports, that in February, 1836, the equitable interest of Lewis, in the property, would have sold readily for $2,500 in money; and, that in 1838, that sum waB a fair estimate of the value of said equitable interest. The price of property had declined somewhat, but improvements had been made to the amount of the difference.
    The property having been taken back by the vendor, the interest of Gilbert at the time of the report, if any, was of little value.
    The master finds, that at the commencement of this suit, Lewis had an interest in the academy lot in Warren, but the said interest was of little or no value, it being burdened with liens to Gilbert, and conveyed to him to secure money paid, and liabilities assumed.
    The master further finds, that at the commencement of this suit, Gilbert held in trust for Lewis, a mortgage upon the fifty acres of land in Yienna, and other lands, given by Lambert Lewis to Calvin Cone and others, to secure them for indorsing for him a note to the Western Reserve Bank for $1,700. At the date, October 1, 1832, said debt to the bank had been reduced by Lambert Lewis, by payments, to $715.88. In 1827, the said Cone and others, had assumed the debt to the bank, giving their own notes for it, and they instituted suit to foreclose the mortgage, by Roswell Stone, their attorney. Said Stone paid to the bank, October 1, 1832, the amount, $715.88, then remaining due. At the joint instance of Lambert W. Lewis and Garry Lewis, Gilbert had purchased the said mortgage and the debt it was given to secure, in September, 1829, and on the 29th of that month, he received an assignment of said debt and mortgage from the mortgagees. Gilbert, in consideration, was to pay the amount due the bank, and the costs of the suit to foreclose — nothing was to be paid to the mortgagees. The balance of the debt, and the costs of the suits to foreclose, 141] *could not have exceeded, in the judgment of the master, $800 ; and if more than that was paid by Gilbert, it was probably paid to Lambert W. Lewis. For some unexplained reason, however, Lambert Lewis and Gariy Lewis, at the time of the purchase of the mortgage by Gilbert, and subsequently, treated said mortgage as if the whole amount of the debt it had been given < to secure, was due and unpaid. Lambert W. Lewis, at the time of the purchase, acknowledged the whole amount to be due, in a writing given to Gilbert; and in the receipt given by Stone to Gilbert, the consideration is expressed as $1,900.
    As an inducement to Gilbert to purchase said mortgage, Garry Lewis promised to pay it, if Lambert did not do so; and in fulfillment of said promise, he bought the mortgage of Gilbert and executed to him his note therefor, bearing date January 3, 1833, for $2,884.14. “ This,” says the master, “is extraordinary, and the reason therefor unexplained, There was but about $800 due on the debt for which the mortgage was originally given, including costs of suit to foreclose. Gilbert, in September, 1832, paid, at the most, but $1,900; yet, in January following, Garry Lewis, it is asserted, paid Gilbert for the same $2,884.14.” This note for $2,884.14 was afterward paid in part, by two notes of $1,000 each, executed by Lewis to Gilbert in December, 1833, and amounting, with interest, in February, 1836, to $2,265'.93, which was then credited to Gilbert on the purchase money of Garry Lewis’ homestead farm in How-land township.
    The mortgage was never assigned to Lewis, and the master reports that Gilbert has liens upon it, amounting to $2,411.88, for notes he holds against Lewis, debts of Lewis, and liabilities assumed by Gilbert for him, The value of said mortgage does not appear.
    The master further reports that Gilbert paid Lewis in full for the homestead farm, by giving up to him 23 notes of hand, by assuming and paying to Green and Pear $1,857.84, due them by Lewis, by a note against David Aeheson, and *by an in- [M2 dorsement on a note held by Gilbert against Lewis, amounting in all to $11,500.
    Also, that Gilbert paid Lewis in full for the Wheeler Lewis farm; by paying Leicester King $.3,039.68, part of the purchase money of said farm, due frbm Lewis to King; by giving Lewis a farm in Rossetta, 155 acres, at an agreed price of $2,650; by giving up notes against said Lewis ; by paying off liens upon part of said farm; and by giving to Lewis his (Gilbert’s) own notes for the balance, together with $1,000 for the rent of said farm and the homestead farm for one year after the sale.
    The master reports that the'value of the goods and merchandise sold to Gilbert by Lewis, in January, 1836, was 'estimated at $4,500. That the object of the sale was to secure him for indorsement for Lewis, amounting to $3,350, and for the further purpose of securing him for his liability to the bank, for the ultimate payment of said $5,000 draft. That by the terms of said conveyance, the said Gilbert was to have the liberty of selling said property, and applying the proceeds to satisfy certain debts of the said Lewis. Also, that on the 19th day of January, 1836, Lewis conveyed to Gilbert a quantity of hay, to secure the payment of' a certain bond for $1,200, with interest, made June 5, 1832, by Lewis, in favor of Gilbert; and also to secure Gilbert for the bond given to the bank for said $5,000 draft. Said hay, estimated to be about 350 tons, was to be in the control of Gilbert, to be removed as he might see fit, and sold for not less than $5 per ton, the proceeds to be applied to the payment of said bond for $1,200, held by Gilbert, and the remainder to be paid by Gilbert to the bank on the $5,000 draft. The master also recites the seizure and sale of said hay by the sheriff, at the instance of complainants, and the action thereupon, brought by Gilbert, which was settled, upon what terms does not appear, except as to costs, and there is no evidence to show that Gilbert ever realized anything upon account of said hay.
    M3] *The master then states an account between Lewis and Gilbert, in which, among other things, he allows Gilbert $750 for his trouble in collecting and disbursing, etc.; and from which it appears, that at the commencement of this suit,' Lewis was indebted to Gilbert, including said allowance of $750, the sum of $2,765.72.
    The exceptions of Gilbert to this report were, in substance, as follows: 1. The master has reported the judgment in favor of Gilbert against Smith and the complainants as paid and satisfied; 2i The master has wrongly estimated Lewis’ equitable interest in the Lowe property; 3. The master has found a balance in favor of Lewis, and against Gilbert, arising from the merchandise transferred to Gilbert, of $745.68, applicable to the payment of the bank debt, while the testimony shows that Gilbert has paid more than $2,000 of said debt; 4. The master allowed Gilbert only $750 compensation, which is loss- than one-half of what he is entitled to receive.
    The complainants excepted in substance as follows: 1. The master reported that complainants had been damnified only to the amount of $1,589.75, in consequence of their becoming sureties on the draft for Lewis, whereas, it is apparent, from the evidence, that complainants have been damnified, in consequence thereof, to an amount, including interest, exceeding $5,000; 2. The master has reported that the equitable interest of Lewis in the Lowe property was, in 1836 and 1838, only worth $2,500, when it was, in truth, of the value o'f $4,500; 3. The master has allowed to Gilbert, in the account relative to the goods and merchandise transferred to him by Lewis on the 19th of January, 1836, -a credit for payments made to certain creditors of Lewis, of $5,105.82, when he is only entitled to a credit of $4,914.45 ; 4. The master, in the same account, has allowed Gilbert $750 for services and expenses in converting said goods into money, and paying the same over, which allowance is unreasonable, and made without any evidence or vouchers to sustain the same.
    *The decree in the original cause overruled all Gilbert’s ex- [1M ceptions to the report, and likewise overruled the third exception taken by the complainants. The complainants’ other exceptions were sustained, and the court found that the complainants had been damnified, in addition to the amount found by the master, including interest to October 1, 1833, in the sum of $4,425.79, making the whole amount of their damnification, including interest, $6,015.54. The court further found that the value of the equitable interest of Garry Lewis in the Lowe property, in February, 1836, and May, 1838, at the times when the contract for the same was demanded by said sureties of Gilbert, was of the value of $4,000; and the court further ordered that the sum of $750 allowed by the master to Gilbert for converting the merchandise into money, etc., be disallowed, thereby,,leaving in the hands of said Gilbert, .including interest to the 31st of October, 1843, of said trust fund, arising from said goods, the sum of $1,494.68; and it ordered that the master’s report be corrected and reformed accordingly, and when so corrected and reformed, the said report be confirmed; and the cause was continued. At the October term, 1844, the cause was further continued. At the April term, 1845, on the motion of the complainants, the cause was certified to the Supreme Court, there not being a quorum of disinterested judges in the court below, by reason of Eber Newton, president judge, having been of counsel in the cause, and Frederick Kinsman, associate, being a party defendant. At the December term, 1845, the cause having been remanded back by the Supreme Court, it was certified to the county of Portage, there being no quorum to try the cause for the reasons before stated.
    In the court of common pleas of Portage county, a decree was rendered on the final hearing, confirming the decree of October, 1843, and finding that the complainants have been damnified by indorsing the said draft for Garry Lewis, in the total sum of $7,627.65, including interest to the date of this final decree. The court decrees that Gariy Lewis pay said sum to the complainants, 145] within twenty days from the rising *of the court, and find that it ought to be shared among the complainants and the administrators of Chauncey H. Wilcox as follows: First, the sum of $2,011.40 to be paid to Calvin G. Sutliff as the amount with interest for which his lands were sold; and that the residue of said fund be equally divided and shared between all the complainants and the administrators of said Chauncey H. respectively. The court further find that Garry Lewis is insolvent; and the court also find that Daniel Gilbert was made trustee by said Lewis, and that the said Gilbert, while holding the trust property, the land contract executed by King to Lewis, in February, 1836, and in May, 1838) wrongfully, and in violation of his duty as trustee, and in disregard of the terms of his trust, refused to suffer said trust property to be subjected to the benefit of complainants at their request, and when the complainaets had a right to have the same so subjected; and the court find that the complainants were, in February, 1836, and in May, 1838, damnified by reason of his said disregard and violation of his duty as trustee by said Gilbert, in the sum of $4,000, which the court find that the complainants are justly entitled to with increase of interest upon the same from the, last day of May, 1838, from the said Gilbert, after deducting therefrom, as a partial payment thereof, the sum of $2,015.72, as of October 31,1843, which the court find due the said Gilbert as the amount of principal and interest from the said Garry Lewis at that date, including the payment of the residue of said $5,462.34, judgment to the Western Reserve Bank by said Gilbert, thus leaving due from said Gilbert, as of the 31st day of May, 1838, to the complainants upon an account then stated between them, the sum of $3,304.28, which sum, with interest to this time, amounting to $4,154, the court find that the complainants are justly entitled to have, and demand, from said Gilbert. And the court further find that the judgment of $5,462.34, rendered against the complainants and said Aeheson and Wilcox, as indorsers for Lewis has been fully paid; and decree that the complainants be discharged from all further liability upon 146] the same. The *court ordered that Gilbert pay the said sum of $4,154 to the complainants within twenty days from the rising of the court, and that the sum so to be collected of Gilbert inure to the credit of Lewis upon the decree rendered against him. And the court ordered said sum to be shared by the complainants and the administrators of said Chauncey H. as before directed. And that said Gilbert do pay the costs of this suit.
    This bill of review was filed April 27,1849. For errors it assigns as follows : 1. The court disregarded the testimony in finding that the Lowe property, in the years 1836 and 1838, was worth $400 over the amount due King on the contract of sale; 2. The court refused to allow Gilbert the reasonable compensation which the master allowed for turning the goods into money, etc.; 3. The court overruled Gilbert’s exceptions to the report, and sustained those of the complainants; and moulded the report into such form as complainants desired; 4. The court find, in the absence of proof, and in opposition to positive testimony, that the complainants, by reason of having been sureties for Lewis, were damnified, up to October 31, 1843, in the sum of $6,127.65, whereas, in fact and in truth, the damage complained of was occasioned by their forcibly breaking and entering Gilbert’s store and carrying away his goods; 5. The court decreed that Gilbert had no right, though co-surety, and liable with others, to hold on to the contract for the Lowe property; but ought to have surrendered it up to be sold on execution, at the bidding of any of the sureties; 6. The court decreed that the Lowe property had depreciated $4,000 since 1838, though several thousand dollars had been expended on it in improvements; and the court further decreed that Garry Lewis was insolvent, and therefore, that Daniel Gilbert was accountable for the depreciation of the Lowe property, when the testimony showed that he never was in possession of it, and never exercised any control over it; “ but merely had possession of the paper for safe keeping, merely because he had a safe to keep it in,” and the co-sureties holding his receipt therefor, never offered to surrender it up; 7. The *court or- [147 dered that Gilbert should refund to the complainants the amount which they were condemned to pay as trespassers, in a suit at law wherein Gilbert was plaintiff, and they were defendants; 8. The court rendered a decree against Gilbert, when, by the law of the land, and the established principles of equity, it should have been rendered in his favor.
    August 21,1849, Calvin G. Sutliff filed a general demurrer to the bill; at the September term, 1849, the cause was heard, the demurrer sustained, and the bill dismissed with costs. Gilbert appealed. At the May term of the district court of Portage county, 1852, the cause was certified to Summit county, there not being a disinterested quorum of judges to hear it. From Summit county it was reserved to Cuyahoga county, and from the latter county it was reserved for decision here.
    
      J. Crowell, and Swan & Andrews, for complainant in this bill of review.
    
      Sutliff & Tuttle, Wade & Ranney, and M. Burchard, for respondents.
   Thurman, J.

The assignments of error in the bill of review are numerous, but may all be comprehended under a few heads.

I. It is said that the bill of the complainants below should have been dismissed, because they have recovered no judgment at law against Lewis.

This proposition rests up>on an assumption that the bill was a creditor’s bill, under the chancery practice act, to reach equities. This is a mistake. It, was, for the most part at least, a bill to enforce the execution of trusts, or to make a trustee account. Lewis had transferred his store of goods to Gilbert upon certain trusts, in one of which the complainants below were beneficially interested. He had also assigned to Gilbert the contract for the Lowe property for the express purpose of indemnifying said comjdainants. They 148] *had a right, therefore, to call him to an account in respect to these matters, and it was not at all necessary, before doing so, to obtain a judgment against Lewis. The jurisdiction' of courts of equity over trusts' and trustees is plenary. ’ It is true that the bill contained other allegations besides those relating to the trusts, of which the complainants were beneficiaries. It averred that Gilbert fraudulently held in his possession, in trust for Lewis, a large amount of real and personal estate, and was also largely indebted to him, and it sought to subject this property and .indebtedness to the payment of the conxplainants’ claims. But the decree complained of does not rest upon these averments. It is founded solely upon the trusts, of which the complainants wore beneficiaries. It matters not, therefore, whether the property and indebtedness, in which they had no interest as cestui que trusts, could or could not have been reached without a judgment being first recovered against Lewis. It is sufficient that they.were not reached.'

But let it be-supposed that the decree had subjected them, would it bo reversible because no judgment had been recovered ? We are not prepared to say so. Lewis neither objected to the jurisdiction, , nor denied his liability7. Gilbert, instead of demurring, answered fully. Both. parties took testimony, the cause was referred to a master, the parties appeared before him and exhibited their proofs, first an interlocutory, and then a final deed was rendered, and yet, at no time during the litigation, although it lasted many years, was an objection raised to the jurisdiction, at least none appears in the record. Nor does it appear that, at any time, the point was made that no judgment had been recovered; nor, indeed, is that point specifically made in the bill of review. It first makes its appearance in the argument of counsel in this court. Under these circumstances, we think it comes too late. It should have been made at least in the final hearing in the common pleas, if not sooner, and if not made, the court were not bound, saa sponte, to notice it.

*11. It is said that Calvin G. Sutliff alone was damnified, [149 and his injury gave no right of action to the other complainants.

Were this admitted, it would only show a misjoinder of parties. Bui a court is not bound to dismiss a bill on account of a misjoinder, where the defect is not specifically pointed out. It may do so sua sponte, or it may not. It rests in its second discretion, which it shall do.

It is not true, however, that Calvin G. Sutliff was the only person damnified. We have decided, at this term, in Acheson v. Miller, that by the judgment and satisfaction thereof in the action of ,trespass, the title to the goods that were levied on, vested, in the complainants, and the decedent, Wilcox, and that their title related to the time of the trespass. It was their goods, therefore, that went to pay Lewis’ debt, and to the extent to which the debt was satisfied by them, they were damnified, and acquired a just claim upon him. Now it was this sum, precisely, that the court found in their favor, dividing it between the four, and in favor of Calvin G. Sutliff alone, it found the additional sum for which his farm sold. This was entirely correct.

III. It is next assigned as error, that “ the court refused to allow Gilbert any compensation for turning the goods into money, when the master allowed him, on proof, #750.”

We can not say that the court erred in this. As a general rule a ¡trustee is nor entitled to compensation, in the absence of an agree.ment to pay ; he may claim for expenses, but he must render his’ account, and, if not admitted, must clearly establish it; if he maladminister, and refuse to account, both compensation and expenses may be refused. Now, in this case, Gilbert did maladminister, and also fail to account, and it was only at the end of a long litigation, and by the decree of a court, that he was made to responds He, doubtless, caused the beneficiaries of the trusts much more expense than he incurred in their execution. Under all these circumstances appearing in the case, we think the item was properly rejected.

150] *Lastly. It is claimed that the court erred in charging Gilbert with §4,000 as the value of Lewis’ interest in the Lowe property at the time he (Gilbert) refused to have it sold.

Lewis held an equitable interest in that property, under a contract of purchase from Leicester King. He transferred it to Gilbert to secure payment of the bank debt, and save Gilbert and his indorsers harmless. The transfer was evidenced by a blank indorsement upon, the contract, and a separate written agreement, both which were delivered to Gilbert, and constituted but one transaction. Their effect was to vest in Gilbert the equitable eitate tipon the trusts declared in the agreement, and to create a power to sell, to be exercised by the sheriff. As the estate was but equitable, it might well be assigned, and such a power created, without the formalities of a deed. The clause, creating the power and directing a sale, is in these words:

“ It is further expressly understood by me, Garry Lewis, that if an execution should bo issued against any of the persons above mentioned, whereby they, or either of them, may be bound to turn out property to the sheriff, in consequence of their liability to said bank on said debt of $5,000, above named, and that I, Garry Lewis, am informed of the same, and do not immediately pay the amount demanded by said sheriff, or turn out sufficient property to satisfy said execution, then the King contract, which is given as security, is to be delivered to the sheriff on said execution, and sold to pay said debt.”

» Now this contingency did occur. An execution was issued against the indorsers, among whom were the complainants and Wilcox. Lewis was informed of it, but failed to make payment, or turn out property. These facts were communicated to Gilbert, by the attorney of some of the indorsers, and he was required to deliver the King contract to the sheriff, that the latter might exercise his power to sell. He refused to do so, and thereby prevented a sale. To justify this refusal, various excuses are now offered, some of which seem to be after-thoughts, for nothing was heard of them at the time.

¿¿First. It is said, that the demand upon him was not made [151 by all the indorsers. It was not necessary that it should be. Any one of them had a right to make it.

Secondly. A receipt which he had given to the indorsers, showing the terms on which he held the contract, was not redelivered to him. But he did not ask its delivery. He said nothing, about it. If that was the reason of his refusal he should have so stated, and it would doubtless have been obviated. But we have no idéá that he refused upon any such ground.

Thirdly. He says that he doubted the power of the sheriff to Sell. Suppose he did, what right did that give him to hold on to the contract? The trust he had undertaken required him to deliver it up. There could be no doubt of that. When he refused, he did so at his peril. True, a trustee, may not be accountable for an honest mistake, but when his duty is so plain that no man of ordinary intelligence could mistake it, he is responsible if he has such intelligence. Besides, if Gilbert had such a doubt, why did he not take some pains to have it solved ? It surely can not be that a trustee can shield himself from responsibility by doubts that he takes no measures to either verify or dispel.

Fourthly. It is said that the sheriff could not have sold the estate upon an execution, and, therefore, the direction to deliver it to him, upon the execution,' was nugatory. It is true, that he could not have levied upon it, but the power authorized him to sell it, and this power was not defeated, or prejudiced, by the expression that the contract should be “ delivered ” to him on said execution.” If anything more than a sale and a delivery of the contract, indorsed as it was to the purchaser; would have been necessary to pass title, it would have been supplied by an assignment by Gilbert, to whom the estate had been transferred upon trusts, one of which was that it should be thus sold. And it would have been his duty to make such assignment, especially as he could have done so without incurring responsibility.

*Fifthly. It is urged that the property would have been sac- [152 rifieed by a sale. There is not a tittle of evidence that warrants this assumption. Besides, Gilbert had mo discretion given him to determine when or how a sale should take place. The agreement was unconditional, that if the contingency should occur, which did occur, the contract should be delivered to the sheriff in order that it might sell.

Sixthly. It is said that the complainants might have filed a bill in chancery, and thus effected a sale. We do not see how this excuses Gilbert. He had no right to require them to do so. If he doubted the power of the sheriff to sell, or thought that the property would be sacrificed, unless sold under a decree of court, why did he not file a bill himself? He was trustee, and also a cestui que trust. If he wished to make tho property available for the purpose for which it was assigned, and especially if he considered it necessary for his own indemnity, as he pretended, why did he not take the steps which he now says were necessary; instead of this, he would do nothing but hold on to the contract; he neither suffered the property to be sold by the sheriff, nor effected a sale in any other way. He so managed, that out of a valuable estate that would, probably, almost or quite have saved Lewis’indorsers harmless, and which was assigned to him for that purpose, not one cent was realized by them.

Lastly. It is claimed that Gilbert had a right to retain the contract for his own security; and, strange as it may seem, after the numerous excuses we have been considering, this is the only reason he gave, at the time, for refusing to deliver it up. He did not, indeed, expressly assert a right, but said “ that he must retain it for his own security.” This was a plain and palpable violation of his duty, he being bound to deliver it up on the happening of the contingency before mentioned. Indeed, it is impossible for us, upon the testimony, to reconcile his conduct with a disposition to. act fairly. He not only prevented a sale at the time of which I have been speaking, which was in the early part of 1836, but moro than 158] two years afterward, in the spring of 1838, when *Oalvin G. Sutliff’s farm was under execution, and after he had had the most ample time to ascertain his duty, if he were in doubt about it, he again refused to surrender the contract. And, finally, King, tho vendor, was allowed to repossess himself of the property, but by what arrangement, the master was unable to report, as it was not explained; and the whole security became lost to the indorsers. Under all these circumstances, we can not say that the court erred in holding Gilbert accountable, as they did, and we do not think they estimated the value of Lewis’ interest in the property too high.

But if the charge for the Lowe property were rejected, still the decree could not be reversed unless, upon the whole case, the sum decreed was too great. That, even rejecting that item, it was not too great, is, we think, manifest. Gilbert, in September, 1832, purchased a mortgage, called the Cone mortgage, executed by one Lambert W. Lewis, the debt secured by which, had been reduced by payments until not over $800 were due, including the cost of a bill to foreclose. We are satisfied he paid not over that sum for it; yet, in the January following, he made a sale, or pretended sale, of the mortgage, to Garry Lewis, for $2,884.14, and took his notes for that amount. Two of these notes, amounting to $2,000, exclusive of interest, formed part of the consideration of the purchase of one of the farms which Garry Lewis, about the time of his failure, at the beginning of 1836, conveyed to Gilbert; and they are so credited to Gilbert in the master’s report. Now, we are satisfied that this transaction, so far as these notes are concerned, was a sham. We do not believe that Lewis ever, in good faith, agreed to pay $2,884.14 for a mortgage, upon which he knew that but about $800 were due. The testimony shows that for some years before his failure, he was largely indebted, that his transactions with Gilbert were very numerous, and that, in the end, Gilbert became possessed of nearly the whole of his real and personal estate. That he was disposed to cover up his property we are well satisfied, and that he looked to Gilbert-to aid him *is more" [154 than probable. At all events, as Gilbert was allowed to retain the farm, he might well have been charged with said $2,000, and the interest thereon, forming a pretended, but not real, payment toward its purchase.

Again, the assignment of the goods to Gilbert was to indemnify him as surety for Lewis, to Henry Wick, John W. Seeley, Francis Freeman, and George Parsons, respectively, and also a surety upon the bank debt. By a provision of the assignment, Gilbert was authorized to sell the goods, and ap ly the proceeds, first, to satisfy Freeman ; next, Wick; then the bank. But the master, and the court below apparently overlooked this, and allowed the bank debt to be postponed, not to Freeman and Wick only, but also to Seeley and Parsons. The consequence was, that $1,569.95 was credited to Gilbert, as having been paid to Seeley and Parsons, which should have been paid on the bank debt. This sum, and the $2,000 and interest before mentioned, approximate the amount, $4,000, charged for the Lowe property. Other items might be shown that would more than make up the difference. Suffice it to say, that we are fully satisfied, after a careful examination of the testimony, that the decree was not for too large a sum, even were the charge for the Lowe property rejected. In any aspect of the case, the bill must be dismssed.

Eanney, J\, having been of counsel, did not participate in the decision of this cause.  