1851. October Term. King & als. lars 73 cents. By the agreement of lease, King was to pay Ott the sum ascertained by the valuers, and on the payment Ott was bound to surrender the property at the ott's ex'x end of the term. It seems that King was unable to comply with his obligation to pay the value of the buildings. He proposed to Ott to execute two bonds of 2500 dollars each, dated April 1st, 1823, each bearing interest from date, and payable one in four, the other in five years; the residue of 3159 dollars 73 cents payable as King conveniently could after the 1st April 1823. King at various times paid the 3159 dollars 73 cents. He executed his two bonds for 2500 dollars each, according to his proposition, and Ott released possession of one of the houses, and King agreed to execute a deed of trust on the two. Ott retained the possession of one of the houses until his death, as a security for the two notes of 2500 dollars each, and it still is in possession of his executrix and devisee. By an agreement between Ott and King, the rent of the retained tenement was set off against the interest accruing on the bonds; so that only the principal remained due. In 1831 Ott died, and devised his real and personal estate to Jane Ott, his wife, and appointed her his sole executrix. Miles King had become much embarrassed in 1835, and executed various assignments on separate portions of his real estate, in which deeds his interest in the land and appurtenances occupied by Mrs. Ott was not conveyed. But by a deed bearing date the 8th day of July 1835 he appointed Newton C. King his trustee for the purpose of receiving all his estate, real and personal, not before conveyed, for the benefit of all his creditors, and added, "I hereby convey the same to him in trust for the purpose aforesaid, he first paying me ten dollars, which I hereby acknowledge to have received." In July 1840 Mrs. Ott, as executrix of George Ott, filed her bill in the Circuit court of the city of Norfolk VOL. VIII.-15 1:51. October against Miles King and his wife and N. C. King, in which she set out the foregoing facts and asked that the Ott's ex'x said two bonds might be decreed to be paid, and in default of payment that a sale of the premises in her possession might be decreed for satisfaction thereof. V. King & als. Miles King answered the bill, admitting the lease and the agreement by which he was to execute the two bonds, but alleging that they had been nearly paid off; and concurring in the prayer that for the balance due on them they might be held to be a lien on the premises in the possession of the plaintiff. N. C. King answered, averring his ignorance of the matters stated in the bill, except that he had been appointed by Miles King, by his deed of the 8th of July 1835, the trustee and receiver of all his estate not before conveyed, for the benefit of his creditors; and he supposed that by this deed the premises mentioned in the bill passed to him, and whatever rights the creditors had under that deed he submitted to the protection of the court. In the progress of the cause an account was directed and reported by a commissioner of the court, but when the cause came on to be finally heard in June 1845, the court, being of opinion that the plaintiff was not enti tled to the relief prayed for, without acting on the report, dismissed the bill with costs. Whereupon the plaintiff applied to this court for an appeal, which was allowed. The Attorney General and Cabell, for the appellant. 1. The agreement between Ott and King should be executed as between them. That agreement is not only fair and certain, but if it had not been reduced to writing, it would have been enforced, because Ott is in possession. 2 Story's Equ. Jur. § 751. 2. If the agreement will not be enforced, then Ott held adversely to King. He held the property as a pledge to secure another contract: and in that state of facts King's deed passed nothing. Hopkins v. Ward, 6 Munf. 38. 3. Independent of the written agreement, Ott had a vendor's lien on the houses. He built them, and they were valued and sold to King at the valuation. And Ott held possession of one of them to secure the pay ment. 4. The deed of King is a nullity, and cannot affect Ott's title to specific execution of the contract. The deed contains no words of conveyance sufficient to pass real estate or any interest in it. The deed, too, names no property and no creditor. It is all the property for all the creditors. Harvie v. Wickam, 6 Leigh 236; Galt v. Carter, 6 Munf. 245. In the case of Wilkins v. Gordon, 11 Leigh 547, the deed was sustained; but there, although the debts were only described as being about so much, the property was properly described. It has been frequently held in England that a deed made without the assent of the cestuis que trust is revocable at the pleasure of the grantor, and void as to creditors. Walwyn v. Coutts, 5 Cond. Eng. Ch. R. 7; Garrard v. Lauderdale, Id. 1: Acton v. Woodgate, 8 ld. 97; Page v. Broom, 3 Id. 543. We have a decision of our own seemingly in conflict with these cases, Skipwith v. Cunningham, 8 Leigh 271. This case is, however, shaken by the later case of Spencer v. Ford, 1 Rob. 648. The case has been depending for years, yet no attempt has been made by creditors to set up the trust as against the property claimed by Ott. There is no authority in and the cestuis que trust the deed to the trustee to sell; 5. King did not by his deed to his son, Newton King, either convey or intend to convey any property but such as he had a right to dispose of. And as he had no right to dispose of this property until Ott's claim was satis 1851. October Term. Ott's ex'x King & als. 1851. October Term. fied, it is only the remainder after paying that debt that passed by the deed. Lacon v. Mertens, 3 Atk. Ott's ex'x R. 1; 2 Story's Equ. Jur. § 759; 3 Woodeson's Lect. King & als. 281. There was no counsel for the appellee. MONCURE, J. delivered the opinion of the court. The court is of opinion that the appellee, Miles King, having agreed, by contract in writing signed by him, to give a deed of trust on the lot of land and buildings in the bill mentioned, to secure the payment of his two bonds to George Ott, the testator of the appellant, for two thousand five hundred dollars each, dated the first day of April 1823, payable four and five years after date, with interest from the date; and the said George Ott in his lifetime, and the appellant, as his sole devisee, legatee and executrix, since his death, having retained possession of a part of the said property, to wit, the western tenement, since the said contract was entered into, under an agreement with the said Miles King that an annual rent of three hundred dollars should be allowed therefor and set off against the annual interest on the said two bonds; the said contract constituted an equitable lien on the said property for the amount of the said two bonds, which lien a court of equity ought to enforce not only against Miles King and his heirs, but against Newton C. King and the creditors, if any, claiming under the general assignment exhibited with the bill, whether the said assignment be invalid or not, a question which the court deems it unnecessary, in this case, to decide. And the court is further of opinion that the Circuit court, instead of dismissing the plaintiff's bill, should have proceeded to ascertain the balance due upon the said bonds, and then have decreed that unless the said balance so ascertained, with interest and costs of suit, should be paid by the defendants, or some of them, within a reasonable time thereafter, the said property, or so much as might be necessary, commencing with the western tenement aforesaid, should be sold for the purpose of paying the same. Therefore it is considered that the said decree of the Circuit court be reversed and annulled, and that the appellant recover against the appellee, Miles King, her costs by her expended in the prosecution of her appeal aforesaid here. And the cause is remanded to the said Circuit court to be proceeded in according to the foregoing opinion. DECREE REVERSED. 1851. October Term. Ott's ex'x King Richmond. Ross's adm'r v. REID & wife. (Absent Cabell, P. and Moncure, J.*) November 17th. A party having obtained an injunction to a judgment at law, upon the usual condition of a release of errors, omits to execute the release. Pending the injunction suit, he obtains a supersedeas to the judgment at law, but does not perfect the appeal by giving the security. There are repeated applications by him for a renewal of the supersedeas, which are granted, but he does not perfect the appeal. The injunction is proceeded in and decided against him; and he afterwards, more than ten years from the date of the judgment, asks that he may have a writ of error to the judgment at law, without giving security, except for costs, which is granted. His laches in perfecting his appeal being wilful, deliberate and repeated, and the application for the appeal having been, under the circumstances, improper, the Court of appeals will, upon motion by the appellee, dismiss the appeal. * Judge Moncure had been counsel in the cause. |