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in consideration of the execution of the said 9th day of January, 1809, execute and deliver to conveyance by this respondent, and of her the said Henry S. Turner, Thomas Blackburn, thereby relinquishing her dower in the said and Bushrod Washington, Jun., a deed for the Spotsylvania lands, and her right to the said said lands, in Fairfax County, whereby she conlands in Fairfax, the said Richard, on his part, veyed her right to the said lands last men agreed to convey to Edmund J. Lee, William tioned, to the said Turner and others, in trust, Maffit, and Richard Coleman, all the household to secure the payment of the said debt, due and kitchen furniture, carpeting, beds, bed from the said Richard B. Lee to the Honorable steads, bed furniture, plate, chinaware, glass, Bushrod Washington, in the manner provided tables, chairs, table linen, carpets, sideboards, by the said agreement. And that the bureaus, wardrobes, and all kinds of furniture, said Richard did on the same day, in execution then in their said dwelling-house and kitchen; of the said agreement on his part, execute and estimated to be worth sixteen hundred dollars; | deliver to the said E. J. Lee, William Maffit, and the following slaves, that is to say, John and Richard Coleman, a conveyance, whereby and his wife Alice, and their children Patty, he transferred and conveyed to them the said Betty, Henry, Charles, Johnny, Margaret, Milly, slaves and furniture before mentioned, to be and Frank; Ludwell, and his wife Nancy, and held in trust for this respondent, in the manner their children Caroline, Harriet, Frederick, Lud. and on the terms before stated, which said well, and Barbara; Henny and her child Elea- deed was duly proved and recorded, within nor, Rachel and her child Rachel; two sisters, eight months from the date thereof, in the Kitty and Letty, and their brothers, Alexander County Court of the County of Fairfax, in and "Alfred; George (a blacksmith), Harry (a which the said Richard and this respondent carpenter), Harry (a wagoner), Tom (a car. continued still to reside, and in which the said ter), Thornton (a cook), Samuel (a smith), and slaves and furniture still remained. And this John (a ploughboy), to be held by the said E. defendant herewith exhibits the said three J. Lee, William Maffit, and Richard Coleman, deeds severally, marked Exhibits No. 1, No. 2, and the survivors and survivor of them, and the and No. 3. This respondent avers that the executors and administrators of such survivor, said agreement before mentioned was made bein trust, for the use of this respondent during tween the said Richard and her, and the said her life, and after her death to pass to her deeds executed in pursuance thereof, fairly and beirs-at-law, provided she died intestate, or to bona fide, without any intention to defeat, desuch persons as she might bequeath the same to fraud, hinder, or delay any creditor of the said by her last will and testament, 80 as she Richard. She is advised and insists that they should make the same pass fully and com- were duly proved and recorded, according to pletely, and without limitation or condition, to the laws of the State of Virginia, and that, her heirs or legatees. It was further agreed by under the same, she is a bona fide purchaser the said Richard and this respondent, that the of the said slaves and furniture, according to said Richard should be authorized, at any time the terms of the said deed to E. J. Lee and during his life, to sell or otherwise dispose of others; and that the said deed fully protects any part of the said slaves and furniture, with her in the right to said property conveyed, the consent of a majority of the said trustees, according to the terms thereof, against all or of the survivors or survivor of them, or of creditors of the said Richard, and all purchasthe executors or administrators of the last ers *subsequently to the date there. (*115 114'] *survivor, provided the said Richard of. And this respondent has before herewith should convey to the said trustees, or to the exhibited, as part of her answer to the said survivors or survivor, or the executors or ad. deed, with the certificate of proof and record ministrators of the last survivor, other prop- thereof, by the clerk of the County Court of erty, real or personal, to the full value of the Fairfax County, marked Exhibit No. 3. said furniture or slaves so sold or disposed of. This respondent admits that no sale of the And it was further agreed that if the said Fairfax lands was made under the said deed to Richard should fully pay the said debt to the Henry S. Turner and others; she, therefore, Honorable Bushrod Washington, without sell. makes no claim to the slaves, Ludwell, Thorning any part of the lands to be conveyed to the ton, Henry, Butler, Tom, Samuel, Jack, and said Henry S. Turner, and others, in trust, as Eleanor; that none of the said last mentioned aforesaid, and then held in trust for the said slaves are in her possession or subject to her Elizabeth, then that the conveyance to be made control, nor were they so when the complainas aforesaid, to the said E. J. Lee, William ants issued out their writ of replevin in their Maffit, and Richard Coleman, should become bill mentioned, or at the time they instituted null and void as to the slaves Ludwell, Thorn- this suit. ton, Henry, Butler, Tom, Samuel, Jack, and In this case it is agreed that the following Eleanor.

facts be, and they are hereby admitted as true, And the said Elizabeth avers that in execu- reserving all objections to the admissibility of tion of the said agreement, and in considera- the facts as competent testimony in the case, tion of the conveyance of the terms thereof to viz., that Richard Bland Lee and his wife Eliza: be made to the said E. J. Lee, William Maffit, beth, one of the defendants, resided at Fairfax and Richard Coleman, for her use, in manner County, in the State of Virginia, on the 9th and on the terms aforesaid, she did, on the 16th January, in the year 1809, and said Richard B. day of July, 1809, in due form of law, with Lee then held the negroes and other personal the said R. B. Loe, execute and deliver to the property mentioned in the deed of that date, said Ludwell a conveyance in fee of the said from said Richard B. Lee, to Lee, Maffit, and lands in Spotsylvania, thereby relinquishing Coleman, filed with defendant Elizabeth's an. her claim of dower therein. And did, with swer, and marked Exhibit No. 3. the said Richard, in due form of law, on the That the said R. B. Lee and his wife Eliza. beth were housekeepers, and resided together, y equity, cannot deprive the wife of the slaves, in Fairfax County at the date aforesaid; that without doing equity to her, by restoring the the said negroes and other personal property lands now beyond our reach, provided the continued in their possession after the deed of transaction was bona fide. the 9th January, 1809, had been made, in like The other part of the consideration was the manner as such possession had been held before deed of trust" (of January 9th, 1809) by which said deed was made, and so continued until the Fairfax estates of Sully and Langley were they removed to Washington city, in the year pledged for the payment of the debt due to 1814 or 1815, when they brought said negroes Judge Washington. These estates were the and other property from Fairfax County with separate and sole property of Mrs. Lee, and them to the city of Washington. That from not being subject to execution by the laws of the period of said removal to Washington, said Virginia, the creditor had not the slightest personal property, as distinguished from the claim upon them, and it would have been most negroes, was assessed by the officers of the cor- unwise for Mrs. Lee to have onerated them poration as the property of the said Richard B. without ample indemnity. Lee.

Judging of the probabilities in 1809, from That four of the said negroes were, for the future results, between that time and the death first time, in the year 1818, assessed to said of Richard Bland Lee in 1827, and we are in. Richard B. Lee. That prior to the 9th day of clined to conclude that Mrs. Lee, with the arJanuary, in the year 1809, the said Richard B. dor common to her sex, mistook her true interLee was seized in fee of five undivided eighth est in making the exchange of her lands for the parts of 8,000 acres of land in Spotsylvania slaves and household goods: that she bas been County, in the State of Virginia, which was greatly the sufferer, is free from doubt. The conveyed by said Richard B. Lee and said Eliza- Virginia estates have passed into other hands, beth his wife, to Ludwell Lee in fee-simple. to satisfy her husband's creditors; most of the

The execution, due acknowledgment, and re, slaves have been sold to supply his improvi. cording of the deed and bills of sale, exhibited dence and necessities, and the little that is left with the defendant Elizabeth Lee's answer, is of the property secured to Mrs. Lee (down to admitted.

the humblest utensil), is now sought to be apThe execution and service of the notices ex propriated to the satisfaction of the judgment hibited with the answer of the defendant, on which the bill is founded. Edmund J. Lee, is admitted.

That the deed of trust to Henry S. Turner It is admitted that the deed of the 9th Jan. and others to secure Judge Washington's debt uary, 1809, was delivered to the trustees there- was executed in good faith, is not controverted; in named, and that they agreed to act, but the objection is that the debt was paid [*117 never took possession of the property therein by means independent of the lands mortgaged, mentioned, or of any part of it.

and the mortgage discharged. The considera. It is also agreed that the deeds referred to in tion, therefore, given by Mrs. Lee for the slaves 116*] E. J. Lee's, * Elizabeth Lee's, and Rich- and other property secured to her separate use ard Smith's answers, severally, were duly exe- is fully proved, and was ample when the con• cuted, acknowledged, and recorded, and are to tract was made; and this is all that rested up. be received and treated as parts of the record on the respondents to establish, to resist the in this case.

claim of the complainants on the first aspect of On these pleadings, exhibits, and admissions, the bill—that which alleges the deed to have various positions are assumed as grounds of re- been fraudulent in its inception. lief.

But an after circumstance is invoked as fur. The deed of January 9, 1809, recites that nishing evidence favorable to the complainants. Mrs. Lee had executed a deed to Ludwell Lee, In the interrogating part of the bill, the respond. relinquishing her right of dower to the 5,000 ents are required to answer whether the debt acres of land in Spotsylvania; whereas, the mentioned in the deed of 1809 as due to Judge deed to Ludwell Lee, relinquishing the dower Washington had ever been paid, by whom, interest, bears date subsequently, in July, 1809. and from what funds. Edmund J. Lee responds

It is insisted for complainants that the re- that he had no distinct recollection on the sub. cital was false, and that this part of the conject; Mrs. Lee admits that no sale of the Fair. sideration had must be rejected. We do not fax lands was made under the deed to Henry think so. The transaction is of nearly thirty S. Turner and others, but that the eight slaves, years' standing, and not so open to explanation who in such event were to be returned to her as a more recent one; it may be that a deed had husband had been disposed of by him, etc. If been executed by Mrs. Lee, as recited, to Lud. Mrs. Lee meant to say that the trustees had not well Lee, and that it was afterwards superseded sold by virtue of the deed of trust for judge by another: be this as it may, Richard Bland Washington's benefit, then she answered truly; Lee was estopped by the recital in his own if, however, she is to be understood as answer. deed, and Mrs. Lee's trustees, bound to per- ing that the estates pledged were not applied, formance on her part, supposing the recital to in part, to the extinguishment of the debt, then have been untrue. The substance of the con- she was mistaken. Sully, the homestead, was tract was that she should relinquish her dower sold to Francis Lightfoot Lee in February, 1811, interest to Ludwell Lee; and she did relinquish for eighteen thousand dollars; embracing the it, obviously in compliance with the agreement; five hundred acres which was Mrs. Lee's indi. and that it was done in July, instead of the vidual property, and including two hundred preceding January, is an immaterial circum- and seventeen acres in addition, out of which stance. The husband's alienee acquired the sum Judge Washington was paid seven thou. disencumbered estate in consideration of the sand four hundred and fifty dollars. The es. deed sought to be impeached; and in a court of 'tate was not conveyed by the trustees, but by

Richard Bland Lee, the respondent Elizabeth, the community in which they lived, and esand Bushrod Washington, with covenants of pecially to the complainants, wben within the title and warranty. The conveyance upon its wife's knowledge he was holding out her propface recites in the fullest manner that seven erty as his own, and using of it as his own, thousand four hundred and fifty dollars of the and obtaining credit upon the faith that he purchase money had been paid by Francis Light was the true and absolute owner. foot Lee to Judge Washington in discharge of That Richard Bland Lee did deal with and the balance of debt due to him. There can use the property in controversy as if it had be little doubt Mrs. Lee in her answer was mis- been his own whilst he resided in this city, and taken in admitting to her prejudice that the that the community did believe him the true Fairfax lands had not been appropriated to the owner, and give him credit on the faith of the payment of Judge Washington's debt. Her property, is no doubt true; and it is very probprincipal object seems to have been to disavow able that Mrs. Lee knew the fact, but conall claim of title to the eight slaves.

tinued passive and silent on the subject. She Suppose, however, that Judge Washington's denies, however, that she had any knowledge debt had been paid by other means, and the of the execution of the deed of trust to RichFairfax lands disencumbered of it; could the ard Smith until long after it had been made; fact influence this cause? That it could not is and the answer, being responsive to the allegamanifest. The complainants, by their bill, do tions in the bill, is conclusive of the fact denot seek to come in under the deed to Turner nied; there being no proof to the contrary. and others, nor under that to Edmund J. Lee Was it a duty incumbent on Mrs. Lee to adand others; if they had, and if the fact had vertise the community in which she lived that been established, that Mrs. Lee, by the pay- her husband had no title to the property on the ment of the debts from independent means, re- faith of which he was obtaining credit, but tained her lands, and the slaves also, then a that it was hers? This would have been charge court of equity would treat her as a trustee for ing her husband with fraudulent conduct; Richard Bland Lee, and let in the complain *for it cannot be denied that if a sells (* 119 ants as his assignees, to subject the slaves, etc., and conveys his slaves or lands, and then proto the payment or the bank debt. But the bill duces to another his previous paper title, and charges that the deed to Edmund J. Lee obtains credit upon the goods or lands by 118*] 'and others was fraudulent and void pledging them for money loaned, he is guilty in its inception, presenting no case founded on of a fraud; and if the true owner stands by and the subsequent transaction alluded to; and the does not make his title known, he will be court cannot notice it other than as evidence bound to make good the contract, on the printo fix the fraud on the respondents in executing ciple that he who holds his peace when he the deed sought to be set aside, which if ought to have spoken, shall not be heard now valid then, must be deemed so now. The ca- that he should be silent. He is deemed in pacity of the husband to contract through the equity a party to the fraud. How far the intervention of trustees, with the wife, and to principle applies in a case of the wife of a make a valid conveyance, founded on a bona | fraudulent vendor standing by, we

are not fide consideration paid out of the wife’s sepa- j called on to decide, and wish to be understood rate estate, has not been questioned, nor is the as not deciding. Mrs. Lee's is not that case; to doctrine open to controversy.

say the most, she was only passive and silent, That & liberal construction should be given in regard to her rights generally, although she to the clause in the Virginia statute for the may have had knowledge that Mr. Lee was obsuppression of fraud we admit; this is the well taining credit on the faith of her property; established rule in construing the statutes of and the question is, was it her duty to have Elizabeth, which the first section of the Vir. acted otherwise? All we need say is that a ginia statute substantially adopts. Heydon's court of chancery cannot hold Mrs. Lee responcase, 3 Rep.; 1 Black. Com. 88; Fitzhugh v.sible because of her silence. Anderson, 2 Hen. & Munford, 304.

Then as to the question of possession conOn the second ground on which relief is tinuing with the grantor. Leave the relation sought, it is insisted the complainants are en- of man and wife between Richard Bland Lee titled to have satisfaction out of the property and Elizabeth Lee out of view, and it would claimed by Mrs Lee.

be impossible that anyone could have been “I. Because the continued possession, use, misled by Mrs. Lee having the possession; she and enjoyment by said Richard Bland Lee, of having the sole and exclusive beneficial interest the said property, purported to be conveyed by and right of possession. The difficulty arises the deed of 9th January, 1809, was evidence of from a circumstance, the existence of which a continued ownership, and avoids said deed the statutes of Virginia contemplated and proas against subsequent bona fide purchasers and vided for. By the Act of 1785, it is declared creditors, without notice.

that where any reservation or limitation shall “II. That said deed so executed in Virginia be made of a use, or property, by way of conwill not validate the possession, use, and en- dition, reversion, remainder, or otherwise, in joyment of said property in the city of Wash- goods and chattels, the possession whereof ington."

shall remain in another, the same shall be The investigation of this assumed ground of taken, as to creditors and purchasers of the relief involves considerations affecting the persons remaining in possession, to be fraudu. nuptial relation.

lent, within the first section of the act, and that We are asked to deal with the conduct of a the absolute property is with the possession, wife living in harmony with her husband as if unless such reservation or limitation of a use, she was a third person, and to decree against or property, is declared by will or by deed, her because she did not expose her husband to proved by two witnesses in the General Court,

or the court of the county wherein one of the retaining the possession of the slaves. In 1806 parties lives, within eight months after the Brodhag removed to Alleghany County, Maryexecution thereof.

land, and continued in possession of the slaves, The statute of Virginia has been adopted in as apparent owner, until August, 1809, when Tennessee, where it has been holden that a deed the sheriff of Alleghany seized on them by vir. like the present, founded on a good consider tue of an execution against Brodhag in favor ation, and separating the title from the posses. of Deakin's executors, and Smith, the trustee, sion, was within the statute and must be re. sued Bruce, the sheriff, in trespass. In that corded; but when recorded, creditors and pur: case (as in this) Brodhag had given in the chasers of him who retains the possession must slaves to the assessor of taxes; and had sold take notice of it, and that the recording ex- part of them between 1804 and 1809. empts the property from liability to execution. The Court of Appeals of Maryland, in subCrenshaw v. Anthony, Martin & Yerger's R. stance, held that the Act of 1729 did not affect 110. The great object of the act was to secure the case, and the only proof required to sustain the settlement of slaves by the intervention the plaintiff's title was the bill of sale (as it is of executors and trustees, so as to retain them denominated), and that it lay on the defend. in the family, and this could be done by a ant to prove fraud in fact in order to avoid it. bona fide gift of a husband (not materially in. In 1804 the jurisdictions exercised in the Dis. debted at the time) to a wife or children; if | trict of Columbia and the State of Maryland the deed was duly recorded, to the exclusion were as distinct as those of Virginia and the not only of subsequent creditors, but subse. *District, so that the case of Burch v. [*121 quent purchasers also, contrary to the 27th of Smith was similar in respect to conflict of Elizabeth, whereby, in the language of the jurisdiction with the one before the court. Supreme Court of Tennessee, in Marshall v. The same point came up in Tennessee, and Broker, 1 Berger's R. 15, an extravagant, met the decision of the Supreme Court of that 120*] *spendthrift husband, may provide for State. his wife and children before they are overtaken The following are the material facts in the by ruin.” But we can say with Lord Hard Tennessee case: wicke, in Russell and Hayward v. Hammond, 1 In 1812, in Lunenberg County, Virginia, Dan. Atk., “that we have hardly known one case iel Crenshaw sold and conveyed certain slaves where a person conveying was deeply indebted to Richard Herring, who soon after contracted at the time of such gift, that it has not been for the purchase of a tract of land from Daniel deemed fraudulent." In Virginia, therefore, Crenshaw, lying in the same county; but the possession of Mrs. Lee was in accordance Nancy Crenshaw, the wife of Daniel, refused to with the established practice, and is in no de relinquish her right of dower; and to induce gree subject to imputation.

her to do so, Herring agreed with her and her It is insisted, however, that when Richard son, Cornelius Crenshaw, to convey to the latBland Lee removed into Washington city, the ter, in trust for his mother, and for her sepastatute of Maryland operated on the Virginia rate use, two of the slaves previously purtite of Mrs. Lee, and defeated it for the bene- chased from Daniel Crenshaw." The deed was fit of purchasers from her husband.

duly executed and recorded in Lunenburg: The statute declares that no goods or chat In 1814 Daniel Crenshaw and his wife re. tels whereof the vendor shall remain in pos. moved to Tennessee, carrying the slaves with session, shall pass, alter, or change, or any them, Cornelius, the trustee, continuing to reproperty thereof be transferred to any purchas- side in Virginia. er, etc., unless the same be by writing and ac In Tennessee, to all appearance, Daniel knowledged before one provincial justice, or Crenshaw was the true owner of the slaves, and one justice of the county where such seller acquired credit on the faith of the property. shall reside, and be within twenty days re He was improvident, for which reason, mani. corded in the records of the same county. | festly, the wife caused the slaves to be secured 1729, ch. 8, sec. 6.

to herself; and it may be remarked that similar The statute has no reference to a case where motives have led to many, not to say most the title has been vested by the laws of an of this description of conveyances in the States other State, but operates only on sales, mort. where the provisions of the Act of 1785 of Virgages, and gifts, made in Maryland. The ginia prevail. writing is to be recorded in the same county

In 1821 Stacy recovered a judgment against where the seller shall reside, when it is exe. Daniel Crenshaw in the county of his residence cuted. The seller, Richard Bland Lee, residing in Tennessee, by virtue of an execution, foundin Virginia, it was impossible for Mrs. Lee to ed on which Anthony, the sheriff, seized upon comply with the act. That the Virginia deed the slaves; and Cornelius Crenshaw, as his secured to Mrs. Lee the same rights here that it mother's trustee, sued the sheriff in detinue. did in Virginia, we apprehend to be, to some

The Circuit Court held the deed of trust void extent, an adjudged question. It has frequently by force of the statute of Tennessee (which is arisen in the State courts. The case of Smith very nearly a transcript of that of Virginia), v. Burch, 3 Harris & Johnson, was this: In because the deed had not been recorded in Ten1804, Brodhag, owed Jones, and gave a deed nessee; a verdict was rendered for the defendof trust on slaves to secure the debt (three ant, and the plaintiff prosecuted his writ of thousand dollars), executed to Smith as trustee. error to the Supreme Court, where the judg. The parties resided in Georgetown, where the ment was reversed. Act of Maryland of 1729 continued in force The court held that the deed made in Vir. after this district was separated from Mary- ginia, separating the title and possession, was land. The deed of trust was duly proved and of a character to be operated upon by the Act recorded in the District of Columbia, Brodbag of 1785 of Virginia; and had the deed not been

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recorded there, as to creditors and purchasers, prior

incumbrances on land to obtain the beneat of the title would have been deemed to be with the his, Judgment, may, by assignment, secure to him.

selt the rights of the incumbrances; and the same possession; but having been recorded there, a rule applies where a junior mortgagee is obliged to title fair and unimpeachable vested in the satisfy prior mortgages. He stands as the assignee trustee and cestui que trust, Nancy; that be of such mortgages, and may claim all the benefits ing valid in Virginia, the statute of Tennessee under the then that could have been claimed by his

But the effects of this principle may be could not affect it. Furthermore:

controlled by acts of the parties. The court refused to hold the wife responsible, because she had continued passive and silent in regard to her separate right to the O No appeal from the Circuit Court of the

United States for the County of Washingslaves, by which individuals might have been, ton, in the District of Columbia. and in all probability were, induced to believe

This case was argued by Messrs. Sergeant her husband the true owner, and to give him and Coxe for the appellants, and by Mr. Key credit on the faith of the property. In that for the appellees. case, as in this, the wife had done no affirma. tive act, designedly to draw in the creditor to trust her husband; and the court believed, by Mr. Justice M'Lean delivered the opinion of 122') remaining silent, *she had violated no the court: duty, nor been guilty of any deceit on which This is an appeal from the decree of the Cira forfeiture of her right could be pronounced. cuit Court for the District of Columbia.

The deed in controversy is also embraced by The facts out of which the controversy arises the 4th section of the sta ute of Virginia, are substantially as follows: which, amongst other things, provides for the At April Term, 1822, the Union Bank of recording of all deeds of trust and mortgages, Georgetown recovered two judgments against upon acknowledgment or proof according to George Peter, amounting, exclusive of costs, to the directions of the act; it having been holden the sum of seven thousand nine hundred and by the courts of Virginia and this court (3 Hen. thirty-four dollars. & Mun. 232; 3 Cranch, 150) that deeds con- On the 9th of April, 1824, George Peter exeveying chattels are included within the section cuted a deed of trust to Thomas Peter and referred to. And the deed vesting the property Robert P. Dunlop, which was supposed, at the in Mrs. Lee's trustees having been duly record - time, to include all the real property owned by ed in the manner required by the statute, it was George Peter within the District of Columbia. effectual according to the laws of Virginia, to The conveyance was made in trust to indemprotect the title against subsequent creditors nify Thomas Peter, who had become the of, or purchasers from, Richard Bland Lee. indorser of George to a large amount. A great

Upon the whole, we are, of opinion the decree number of debts were enumerated in the deed, below dismissing the bill should be affirmed. and among others, one to the Bank of the

United States of twelve thousand dollars; Mr. Justice Baldwin dissented.

which were designed to be paid in whole or in

part, by the sale of the property included in Mr. Justice Thompson did not sit in this the deed of trust. cause.

The judgments of the Union Bank, above This cause came on to be heard on the tran. stated, were not embraced by the deed of trust. script of the record from the Circuit Court of Before any act was done under this deed, the United States for the District of Columbia, Dunlop relinquished the trust to Thomas Peter, holden in and for the County of Washington, his co-trustee. and was argued by counsel; on consideration On the 19th May, 1824, the Bank of the whereof, it is decreed and ordered by this United States recovered a judgment of five court that the decree of the said Circuit Court thousand dollars against George Peter, as in this cause be, and the same is hereby af. indorser or drawer with John Peter. firmed with costs.

In September, 1829, the property conveyed in trust was sold by Richard Smith, cashier of the Branch Bank of the United States; who had been appointed by Thomas Peter, with the consent of the creditors, to act as agent in the

premises. The net proceeds of the sale, deduct123') *THE BANK OF THE UNITED ing certain charges,

$37,285.90, STATES, Appellants,

amount insufficient to discharge all the debts.

The judgments of the Union Bank, though GEORGE W. PETER et al., Appellees.

not included in the "deed of trust, con- (*124

stituted a lien on all the real property of George Payment of senior incumbrancer by junior- Peter in the district; and in order to give un. right of subrogation.

were

an

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encumbered titles to purchasers at the above

sale, Richard Smith, with the consent of the It is a well settled principle in equlty that a

creditors and Thomas Peter, paid those judg. judgment creditor, where he is compelled to pay or 'ments out of the proceeds of the sale; but sat.

NOTE:- Junior Incumbrancer, rights of, to bave | subrogation to the rights of the senlor mortgagee. prior incumbrances assigned to him, and to be Jenkins v. Continental Ins. Co. 12 How. Pr. N. Y. substituted. Right of subrogation.

66 ; Dauchy v. Bennett, 7 How. Pr. N. Y. 378 ; RusA junior incumbrancer is entitled to redeem a sell v. Howard, 2 McLean, 489. prior mortgage. And the redeeming party, who is After tendering to senior mortgagee the not himselt llable as a principal debtor, but who is amount due, and demanding an assignment of the compelled to redeem for the protection of his own senior mortgage, a junior mortgagee may, by bill in Hea upon the mortgaged premises, is entitled to equity, compel such assignment. Pardeer. Van

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