Vol. IV.]

ROBERTS v. COCKE.

[No. 12.

mission of interest was authorized by reason of the existence of the war. But the mere existence of war does not abrogate debts, nor does it ordinarily stop the running of interest on debts, except, as before stated, between alien enemies. To make the war, therefore, the occasion, under all circumstances, for the remission of interest on antecedent debts and contracts, would be giving it a controlling character as a fact in determining the rights of parties which it did not have under the law at the time. such contracts were entered into, and would thus substantially impair the obligation of such contracts.

In the case of Me Call v. Turner, 1 Call, 133, there are expressions in the opinions of several of the judges which might indicate that, under the law as it then stood, they thought that the juries were invested with discretion to abate interest in all cases during war. But these expressions are mere dicta, and have no controlling influence as authority. The case decided was a controversy between parties who were considered as occupying the relation to each other of alien enemies during the Revolutionary War, and the interest during the war was therefore properly abated.

Ambler's Ex'ors v. Macon, 4 Call, 605, decided in 1803, contains a dictum of Judge Pendleton, that "interest during the war ought not in justice and equity to have been allowed on debts due to domestic creditors no more than to foreign; but since it has not been attended to, either in practice or judicial decisions, until so much business has been otherwise adjusted, it would be unjust at this late era to introduce it in a particular case, unless in one attended with peculiar circumstances." Afterwards, in 1804, came on the case of Hawkins' Ex'or v. Minor, &c. 5 Call, 118, which was an appeal from a decree pronounced by Chancellor Wythe in the high court of chancery. One of the errors assigned on the appeal was, that the chancellor had disallowed interest for the period of the Revolutionary War in a case where both creditor and debtor resided, during the war, in Virginia; and this court unanimously held that the disallowance by the chancellor of interest for said period was erroneous.

In the case of Crenshaw v. Siegfried, 24 Gratt. 272, one of the questions decided by this court was, that it was error in the court below to deduct interest during the war on a bond given before the war for the payment of a sum of money with interest from date. As the decree by which this deduction was made was pronounced prior to the passage of the act of the legislature, the validity of which is drawn in question in the cases now before us, this court did not in that case pass upon the validity of said act. But Judge Moncure, in delivering the opinion of the court, said: "Certainly the use of money is a valuable and legal consideration for a promise to pay legal interest thereon; and even an act of the legislature passed to annul or impair such a promise would be unconstitutional and void. Of course a decree declaring such a promise to be void, even in the absence of such an act, must therefore be erroneous.'

Our conclusion is, that the act of the general assembly, approved April 2, 1873, entitled "An act to amend and reenact section 14 of chapter 187 of the Code of 1860, in relation to interest," so far as said act confers upon courts and juries, in the suits therein mentioned, a power to remit interest, as therein provided, on contracts entered into prior to the 10th day of April, 1865, which said courts and juries did not have under

Vol. IV.]

ROBERTS v. COCKE.

[No. 12.

the laws in force at the time such contracts were entered into, is repugnant to the Constitution of the United States, and to the Constitution of this state, and is so far null and void. And we are further of opinion, that the mere existence of the late war between the United States and the Confederate States does not alone furnish any legal ground for the abatement of interest on debts upon contracts during the time such war lasted. We do not mean to say, however, that there may not be special cases, attended with circumstances connected with or growing out of the war, which would furnish legal cause for abatement of interest. When, such cases arise, they must be decided according to the law applicable to the peculiar facts and circumstances of each case. We can only lay down the general rule.

It follows from what has been said, that, in our opinion, the judgment of the circuit court of Fauquier County, in Roberts' Adm'r v. Cocke, &c., the first of the cases considered by us, based as it is solely on the act of the legislature aforesaid, is erroneous, and should be reversed and annulled.

Our reasoning in the first case leaves us but little to say in the second. Blackstone, in his Commentaries, divides contracts of debt into three classes debts of record, debts by special and debts by simple contract. "A debt of record is a sum of money which appears to be due by the evidence of a court of record. Thus when any specific sum is adjudged to be due from the defendant to the plaintiff in an action or suit at law, this is a contract of the highest nature, being established by the sentence of a court of judicature." 1 Chitty's Black. book 2, side p. 455.

With us decrees for money are of the same nature and dignity as judg

ments.

Judgments and decrees for money being contracts of the highest character, of course, and for the reasons before stated, to abate any portion of the interest included in them would necessarily impair their obligation. Moreover, by such judgments and decrees the rights of the parties, in whose behalf they were rendered, to the money ordered to be paid, whether principal or interest, have become vested, and cannot be divested, as provided by the act of the general assembly. Griffin's Ex'or v. Cunningham, 20 Gratt. 31.

We therefore conclude, that so much of the act aforesaid as empowers the courts to review judgments and decrees upon motion, and abate interest, as in said act provided, is repugnant to the Constitution of the United States and to the Constitution of this state, and is therefore void; and it follows that the judgment of the circuit court of Fauquier County in the second case, Murphy v. Gaskins' Adm'r, based upon said act, is erroneous, and must be reversed and annulled. Judgments reversed.

Not sitting Anderson and Staples, JJ.

GOOD FAITH AND DILIGENCE ON THE PART OF A TRUSTEE SETTING

ASIDE TRUSTEE'S SALE. INADEQUACY OF PRICE.

BANK OF COMMERCE v. LANAHAN.

A deed dated the 17th of November, 1874, from Edwin Walters and wife to Thomas M. Lanahan, trustee, contained the following recital: "Whereas, the said Edwin Walters stands justly indebted unto sundry persons in various sums and amounts of money which he is at this time unable to pay; and whereas, he has asked an extension of his creditors of their several claims of nine, twelve, fifteen, and eighteen months, with interest from the day of the execution of these presents; and whereas, said request has been granted to said Walters upon the condition that he shall execute these presents for the purpose of securing the payment of their respective claims in the manner, upon the conditions and with the priorities hereinafter provided, as the same shall fall due and mature. Now, for the purpose of securing the payment of his said creditors their respective claims, as above set forth, these presents are executed." The deed then continued: "Now, in consideration of the premises, together with the sum of five dollars, &c.," the said Edwin Walters and Virginia Caroline Walters, his wife, do hereby bargain and sell, assign, transfer, and make over and convey to the said Thomas M. Lanahan, his heirs, executors, administrators, and assigns, all and singular their right, title, interest, and estate, both at law and in equity, jointly and severally, in and to all and singular, those several pieces or parcels of land and improvements, situated," &c. [Here followed a description of the property intended to be conveyed.] "To have and to hold, &c., unto the said Thomas M. Lanahian, his heirs and assigns forever. In trust and confidence, nevertheless, and for the purposes following, that is to say: That if the said Edwin Walters shall pay each and all of his said creditors, having claims against him on the day of the date of these presents, the amounts due and owing to them, with interest, as the same shall fall due and mature, as above set forth and provided for, in nine, twelve, fifteen, and eighteen months, then this deed of trust shall be void, and the said Thomas M. Lanahan, trustee as aforesaid, shall reconvey the above described property to the said Edwin Walters, his heirs or assigns." It was further provided that in case of default in the payment of any one or more of the said creditors, any instalment or portion of their claim as the same should mature, it should be lawful for the said Lanahan to take possession of the said property, and to sell the same in his discretion at public or private sale, and for the most money that could be realized therefor, &c. The proceeds of such sale to be applied: 1st. To the payment of all expenses, including commissions to the trustee. 2d. To the payment of a judgment in favor of said Lanahan of $30,000, with interest. 3d. The balance to be applied to the payment of the other creditors of said Walters, who were such on the day the deed was executed, and if anything remained, the same to be paid to the said Walters or his assigns. It was covenanted in the deed that until default the grantor should retain the possession and use of the property. The instrument was duly acknowledged, and the grantee made affidavit that the consideration was true and bonâ fide as therein set forth. Held :

1st. That the foregoing deed was not a technical mortgage within the contemplation of section 5 of article 64 of the Code, but a deed of trust, clearly denominated such by section 55 of article 24 of the Code.

2d. That being a deed of trust, and not a mortgage within the meaning of section 5 of article 64 of the Code, it was not necessary to the validity of a sale under the deed that it should be made in the county where the property was situated, and advertised in a newspaper printed in said county.

Bad faith or negligence on the part of a trustee in the sale of trust property will not be presumed, but, on the contrary, the presumption is that he has discharged his duty

Vol. IV.]

BANK OF COMMERCE v. LANAHAN.

[No. 12

faithfully, and that presumption prevails until it is made to appear otherwise by those seeking to impeach the sale.

The fact that a sale of trust property took place on the day of the general state election does not, of itself, constitute a sufficient ground for setting it aside.

Inadequacy of price alone is not sufficient to vacate a sale, unless it be so gross and inordinate as to indicate some mistake or unfairness in the sale, for which the purchaser is responsible, or misconduct or fraud on the part of the trustee.

APPEAL from the circuit court for Baltimore County, in equity.

The appeal in this case was taken from an order of the court below. passed on the 3d of January, 1876, finally ratifying a sale of certain real estate, situated in Baltimore County, made by Thomas M. Lanahan, trustee, by virtue of the following deed:

This indenture, made this 17th day of November, 1874, between Edwin Walters and Virginia Caroline Walters, his wife, of the city of Baltimore and State of Maryland, of the one part, and Thomas M. Lanahan of the same place, trustee, as hereinafter stated, of the other part, witnesseth: whereas the said Edwin Walters stands justly indebted unto sundry persons in various sums and amounts of money which he is at this time unable to pay; and whereas, he has asked an extension of his creditors of their several claims of nine, twelve, fifteen, and eighteen months, with interest from the day of the date of the execution of these presents; and whereas, said request has been granted to said Walters, upon the condition that he shall execute these presents for the purpose of securing the payment of their respective claims, in the manner, upon the conditions, and with the priorities hereinafter provided, as the same shall fall due and

mature.

Now for the purpose of securing the payment of his said creditors their respective claims as above set forth, these presents are executed.

Now in consideration of the premises, together with the sum of five dollars in hand paid by the party of the second part to the parties of the first part, the receipt whereof is hereby acknowledged, the said Edwin Walters and Virginia Caroline Walters, his wife, do hereby bargain and sell, assign, transfer, make over, and convey to the said Thomas M. Lanahan, his heirs, executors, administrators, and assigns, all and singular, their right, title, interest, and estate, both at law and in equity, jointly and severally, in and to all and singular those several pieces or parcels of land and improvements, situated in Baltimore County, in the State of Maryland, and likewise in the parishes of St. Martin and St. Mary, in the State of Louisiana, and severally described as follows: [Here followed a description of the property.]

Together with all the buildings and improvements situated upon each and all of the above described tracts of land situated in Maryland and Louisiana, and all the rights, privileges, and appurtenances thereunto belonging, and together with all and singular the personal property of every kind and description now upon the premises above described, in the states of Maryland and Louisiana.

To have and to hold all of the above described property, real and personal, situated as aforesaid, in the states of Maryland and Louisiana, unto the said Thomas M. Lanahan, his heirs and assigns forever. In trust and confidence nevertheless, and for the purposes following, that is to

VOL. IV.]

BANK OF COMMERCE v. LANAHAN.

[No. 12.

say: That if the said Edwin Walters shall pay each and all of his said creditors, having claims against him, on the day of the date of these presents, the amounts due and owing to them, with interest, as the same shall fall due and mature, as above set forth and provided for, in nine, twelve, fifteen, and eighteen months, then this deed of trust shall be void, and the said Thomas M. Lanahan, trustee as aforesaid, shall reconvey the above described property to the said Edwin Walters, his heirs or assigns. But in case the said Edwin Walters shall fail to pay at maturity any one or more of his said creditors any instalment or portion of their respective claims or demands against him, as the same shall mature, then it shall be lawful for the said Thomas M. Lanahan, trustee as aforesaid, to at once take possession of all of the above described property, and to sell the same in his discretion at public or private sale, and for the most money that can be realized therefor, and upon such terms as to the credit payments as he shall think best calculated to promote the interests of all parties concerned in this trust, and the proceeds of all such sales shall be applied and appropriated by the said trustee as follows, that is to

say:

First. To the payment of the expenses incurred in the creation and execution of this trust, including such commissions to the said trustee, for his trouble and responsibility in the premises, as is usually paid to receivers for like services by courts of equity in the State of Maryland.

Secondly. To the payment of Thomas M. Lanahan, of Baltimore city, his personal representative or assigns, the full amount of a judgment recovered by said Lanahan against said Edwin Walters, in the circuit court for Baltimore County, in the State of Maryland, on the 21st day of August, 1874, for thirty thousand dollars, with interest until paid, and

costs.

Thirdly. The balance remaining in the hands of the said trustee is then to be applied to the payment of all the other creditors of the said Edwin Walters, to whom he is indebted on the day of the date of the execution of these presents, in full, if sufficient therefor, and if not sufficient, then ratably and proportionably, and if then there shall remain a balance in the hands of the said trustee, the same shall be paid over to the said Edwin Walters or his assigns. It is distinctly understood and agreed that until default be made by the said Edwin Walters, in payment of some one or more of his said creditors, existing at the time of the execution of these presents, it shall be lawful for the said Edwin Walters to retain the possession and use of the property herein before described, provided he shall keep said property sufficiently insured in the mean time, with a provision in the policies of insurance that if any loss is sustained by fire, the insurance money is to be paid over to the said trustee for the benefit of the creditors of said Walters, as provided for in this instrument. But if said Walters shall fail to keep said property insured as aforesaid, then it shall be lawful for said trustee to take possession of the same and sell it for the benefit of the creditors as above provided. It is also agreed that it shall be lawful for the said trustee, if he shall deem it advisable and for the interest of the creditors, at any time after the execution of these presents, and before the maturity of any of the payments due by said Walters to his said creditors, and before any default