her bill and make parties to this suit the representatives of Benjamin Haley, the principal debtor, and of George Williamson, who was co-surety with Miles Turpin in the bond sought to be enforced by the plaintiff, and also joint trustee with the said Miles Turpin in the trust deed from the said Benjamin Haley, securing, among other debts, the said bond; and leave being then given to the plaintiff, as heretofore had been done, to amend her bill, and she, by her counsel in court, declining to do so, the said counsel alleging there were no such representatives in existence, the court decreed that the bill of the plaintiff should be dismissed with costs. From this decree Montague's executrix applied to this court for an appeal, which was allowed. Walter Harrison, for the appellant. Stanard & Bouldin and R. T. Daniel for the appellees. ALLEN, J. delivered the opinion of the court. The court is of opinion that as it appears that the appellant had obtained a judgment against the appellee, F. J. Turpin, administratrix of Miles Turpin, upon the joint and several bond executed to the testator of the appellant by the said Miles Turpin, together with Benjamin Haley and George Williamson, the said judgment was conclusive evidence of the validity of the debt as against the personal representative of said Miles Turpin. And it furthermore appearing from the record of the case of Turpin v. Sheppard & others, made an exhibit in this cause, and the exhibits filed in said cause, that said Haley and Williamson, who were jointly bound with said Miles Turpin, are both dead insolvent, and have no personal representatives, it was not incumbent on the appellant, under such circumstances, to have representatives appointed, and make them parties; more 1852. January Term. Monta gue's ex'x V. Turpin's adm'x & als. 1852. January Term. Monta gue's ex'x V. Turpin's adm'x & als. especially as the appellee, the administratrix of said Miles Turpin, did not, by her answer or in any other mode, object to the failure to make them parties. The court is therefore of opinion that the Circuit court erred in dismissing the bill because the appellant declined to amend her bill and make the representatives of said Benjamin Haley and George Williamson parties. The court is further of opinion that the evidence in the record does not shew that any part of the debt for which the judgment was obtained was ever paid by the said Benjamin Haley, and as the cause came on for final hearing it would have been proper as the case was presented to proceed to decree in favour of the appellant ; but as no decree was rendered upon the merits by the court below, and a decree by this court, proceeding to pronounce now such a decree as the court below should have done, might operate as a surprise on the appellees, it is adjudged and ordered that the decree be reversed with costs, and the cause remanded for further proceedings in order to a final decree. Richmond. PHIPPEN V. DURHAM & als. (Absent Cabell, P.) March 1st. 1. A deed which conveys all the property of the grantor in trust for the payment of his debts, is valid, though it contains a provision that no creditor shall take any benefit under the deed who does not, within thirty days from its date, signify his acceptance of its terms and conditions; and further agree to release and acquit the grantor from all further claim for the debt acknowledged therein. 2. The creditors named in such a deed, being dissatisfied with the trusts therein declared, it is agreed between each other On the 12th of May 1837 John Durham, a boot and shoe maker residing in the city of Richmond, having been sued for a debt which he considered he did not owe, and apprehending that a judgment might be recovered against him during the term of the court which 1852. January Term. 1832. January Term. V. Durham & als. had then commenced, executed a deed of trust on his property for the benefit of his other creditors by name; providing in the deed, however, that no creditor who should not, within thirty days from its date, signify his assent to, and acceptance of, its terms and conditions, and further agree to release and acquit the said Durham from all further claim on account of the debt acknowledged by said deed to be due to such creditor, should take any benefit under the deed; and that the surplus, after paying the debts of the accepting and releasing creditors, should be paid over to the said Durham. This deed appears to have been executed without the knowledge of the creditors for whose benefit it was made, and was never signed by the trustee. On the day after its execution it was acknowledged by Durham in the clerk's office. On the 10th of June 1837, the day before the expiration of the thirty days mentioned in the deed, it was signed and acknowledged by two of the creditors, to wit, Thomas Mieure and Phippen & Mallory, by B. W. Mallory. It was never signed by any of the other creditors. On the 17th of June 1837 Mallory & Phippen exhibited their bill in chancery against Durham, Pulliam the trustee, and Mieure; claiming that they and Mieure, as the only accepting creditors, were exclusively entitled to the benefit of the deed, and praying for an injunction, that a trustee might be substituted to the place of Pulliam, who declined to act, and that the trust might be executed. On the same day the injunc tion was awarded; and, under the order awarding it, the sheriff took possession of the property. On the 23d of the same month, June 1837, Durham confessed judgments in the clerk's office at the suits of his other creditors, and, being prayed in custody, took the oath of an insolvent debtor; surrendering in his schedule (besides some other subjects, apparently of little value) whatever interest he might have in the property conveyed by said deed of trust. At July rules thereafter, Stevens and others, the schedule creditors, exhibited their bill in chancery in the same court, against Mallory & Phippen, Pulliam, Mieure and Durham, and William D. Wren, sergeant of the city of Richmond, charging that after the execution of the deed, and before the expiration of the 30 days, it was agreed by all the parties, including Mallory & Phippen, that the recorded deed should not be adopted, but should become inoperative by the expiration of the 30 days, and a new deed should be made and different provisions introduced. That afterwards, to wit, on the 10th of June, the day before the expiration of the 30 days, Mieure, thinking that some benefit might result to Durham and his creditors by a mere formal signature of the deed by one or more of the creditors, proposed to Mallory to sign the deed, with the understanding that such signature should be for the benefit of all the other creditors, if it should become necessary to avail themselves of the same; with the design, however, that if no judgment should be obtained against Durham, as was apprehended by him, the deed should be cancelled, and another made carrying out the new agreement and understanding between the parties. That Mallory assented to these views of Mieure, and it was understood between them that, should a judgment go against Durham at the then term of the court, all the trust property should be sold and applied to the payment of all the debts mentioned in the deed, as if it had been signed by all the creditors. That with these views and this express understanding, Mieure and Mallory proceeded to the clerk's office to sign the deed; and at or about the time of getting there Mallory proposed to Mieure to sign the deed and claim the whole. amount of proceeds, (as the same would not very much. exceed the amount of their respective debts,) in exclusion of all the other creditors; that Mieure indignantly rejected this proposition as a fraud on the other credi 1832. January Term. Phippen V. Durham & als. |