Berry v. Bacon et al.

suit must be considered as commenced at the time when the amended bill was filed.

It appears that in Archer v. Jones, 4 Cushm. 583, the court have decided that the statute of limitations can only be relied on in equity, where it is assigned as a ground of special de

murrer.

The counsel who filed this demurrer, were also counsel in Ingraham & Read v. Regan, 1 Cushm. 213, and Patterson v. Ingraham & R. Ib. 87. In the former, which is the leading case on the subject, the demurrer was general, no special causes being assigned, and the defence was sustained. In the case of Patterson there was a pro confesso, and the court would not allow this defence. But they say, "where a demurrer is interposed, the party professedly stands on all his legal rights, and cannot be deemed to have waived any."

Both these cases were decided at November term, 1851, and pursuant to the practice sanctioned in them, the counsel filed a general demurrer in the present case, to raise the same defence. The case was argued below, and again in the chancery court, on the ground of the statute of limitations, and it was brought to this court before the decision in Archer v. Jones was made.

Under these circumstances, it is hoped the court will not apply the rule of Archer v. Jones to this case, which was brought here under the decision in Ingraham v. Regan. If the court declined to consider the question of the statute of limitations, it is submitted that the first ground of demurrer is well taken, namely, that the proper parties are not made.

On this head we desire simply to add, that if the creditor's bill can be maintained, this bill is still defective.

The amended bill does not contain the proper averments to make it a creditor's bill. It simply prays that the original bill may be considered, and taken as filed on behalf of, &c. Now it is not a creditor's bill in its frame, nor is the amended bill a creditor's bill. It cannot be made such by a prayer that it may be considered and taken to be a creditor's bill, for it cannot be considered and taken to be what it is not.

It should state that it is filed as well on behalf of complainant, as of all other creditors, &c.

Berry v. Bacon et al.

It is very clear, however, in our apprehension, that it is not a case for a creditor's bill at all.

George Yerger, for appellees, filed no brief in the record.

Mr. Justice FISHER delivered the opinion of the court. Thomas Berry and others, on the 20th of May, 1840, executed their promissory note to the Planters Bank for the sum of $6,258.85, payable on the 15th day of December following.

On the 23d day of May, 1840, Berry executed a deed of trust to one George W. Tharpe, on certain lands and slaves therein named, for the purpose of securing sundry debts, among others the one now in controversy. The deed of trust provides that upon the said Berry's failing to pay at maturity, one fourth of the amount of each of the debts secured, and renewing for the balance, the trustee might proceed to sell a sufficient amount of the property to pay the said fourth; and that he might proceed in like manner to sell annually, on default to pay a fourth part of the said debts, and to renew for the balance, until the whole debt secured should in this manner be paid. The deed further provides, that if any creditor should sue on his debt, before all of the said instalments became due, he should be considered as having waived all rights or advantages under the trust; and that the property should be appropriated to the payment of the debts of those who accepted this provision of the deed, and complied with the same.

The bill alleges two reasons for the complainants coming into a court of equity for relief. First. The death of the trustee, and the necessity of the appointment of another to execute the trust. Secondly. The judgment of forfeiture pronounced against the Planters Bank, the note having been transferred to the complainants merely by delivery.

The defendants below filed a demurrer to the bill, relying upon two grounds, as we understand from the briefs of counsel. First, the statute of limitations; and second, want of proper parties.

If the complainants were compelled to rely upon the note, as counsel suppose, for a recovery, the statute of limitations would

Berry v. Bacon et al.

doubtless apply to the case, and operate as a complete bar. But so far as the trust property is concerned, the note may be treated as out of the question, except for the purpose of ascertaining the amount of the principal and interest of the debt due. The note was made on the 20th of May, 1840, and payable on the 15th of December following. The object of the deed of trust was to modify this contract, and instead of paying the money on the 15th of December, 1840, to pay it by instalments of one, two, three, and four years. The deed of trust was a proposition, made by the debtor under seal to change the original contract, and to pay by instalments. When the creditor accepted the proposition, he accepted it as it was submitted by the debtor, as a specialty, and agreed to be bound by it as such, in consideration of the additional security. The debtor first promised to pay the whole debt at a specified time, but afterwards said to his creditor, I will bind myself by an obligation of superior dignity, and will give you additional security, if you will permit me to pay by certain instalments; and the creditor accepts this proposition. This is briefly the contract, as consummated by the deed of trust; the effect of which was to modify the original contract between the parties, and to convert that which was a simple contract into a specialty, so far as it related to the trust estate.

Thus viewing the question, the statute of limitations constitutes no bar to the relief prayed by the bill. Hutch. Code, 830, § 7.

It is next objected, that the several beneficiaries in the deed of trust, are not made parties to the bill. The bill as amended, is filed on behalf of the complainants, and all others who choose to come in and prove their debts. This, according to the authority, is sufficient. Story's Eq. Pl. § 102.

Decree affirmed, and cause remanded to the superior court of chancery.

Carter v. Carter.

DAVID L. CARTER VS. OPHELIA CARTER.

In cases like this, whenever the chancellor shall ascertain from the increase of the property, failure of the security, or other cause, that the bond is deficient, he may at any time direct another bond to be given.

On appeal from the superior court of chancery; Hon. Charles Scott, chancellor.

The opinion of the court contains all that is necessary to a proper understanding of the case. In Carter v. Carter, 14 S. & M. 59, this case has been before adjudicated by the court.

Carnot Posey, for appellant.

This cause has been fully discussed and adjudicated by this court in the case of Carter v. Carter, 14 S. & M. 59, wherein this court reversed the decree of the chancellor of the southern district vice-chancery court at Natchez, because, First, the husband (Carter) was not protected from disturbance on account of the debts of his wife, contracted after the separation; Second, because the decree was not so framed as to protect the rights of those interested in the event of her death. That the decree was erroneous in awarding the whole property to the wife, without providing any security against her debts, and without requiring that the property should not be removed beyond the jurisdiction of the court, to the prejudice of ulterior interest. The cause was reversed for the above reasons, and remanded to said vice-chancery court for further proceedings, in accordance with the opinion of this court, purporting to comply with the mandate of this court. The chancellor of said vice-chancery court at the December term, 1851, thereof, rendered another decree, from which decree an appeal was prayed to the superior court of chancery, which latter court affirmed the decree of the vice-chancellor with cost, &c. Hence this appeal was prayed from said superior court of chancery, affirming the decree of the court below. For a reversal of this decree we contend, that though the vice-chancellor apparently complied with the decis

Carter v. Carter.

ion of this court, he did not do so in substance and effect. One of the reasons for reversing the first decree of the vice-chancellor was, that ulterior interest in the property in controversy was not protected. How is this interest to be protected? By taking a bond with good security commensurate with the amount or value of the property in controversy. The vice-chancellor then should have ascertained by commissioners of his court, or otherwise, the exact value of the property, and required a bond to the full amount of its value at the time of rendering the decree. The chancellor ordered a bond of $5,000 only to be given by Mrs. Carter, without any proof or evidence of the true amount or value of the property to direct him in his decision; so far as this court is, or the vice-chancellor was advised, the property may be worth $20,000. If, then, the property is of greater value than the amount of the bond, what protection or security will there be for the ulterior interest? The parties may forfeit and pay the bond, and dispose, squander, or run off the property, and thereby defeat the meaning and intention of the courts. There should be some data to fix the amount of the bond for the protection of the property, and the vice-chancellor should have taken proper steps to ascertain the amount of the property before entering the decree.

W. T. Martin, on the same side.

J. Winchester, for appellee.

The chancellor committed no error. The bond is sufficient to secure D. L. Carter against the debts of Ophelia Carter, and the ulterior interests of others in the negroes. No debts are shown, and the interests of others are entirely contingent.

Mr. Justice FISHER delivered the opinion of the court.

The vice-chancellor in decreeing the property in controversy to the complainant, directed her to enter into bond with security in the sum of five thousand dollars.

The counsel for the appellant insists that the cause should have been referred to a commissioner to ascertain the value of the property, and that the bond should have been directed to