Graham v. Lockhart. be executed by those claiming the beneficial interest in the property, as well as by him who is invested with the title. 8. To let in a deed as evidence, it is not essential that the subscribing witness should remember its execution. His statement that his superscription as a witness was genuine, and that it would not have been placed there unless he had been called to witness it, is sufficient. 9. Where the intention is declared to attack a deed of trust for fraud, it is competent for the trustee to show that his action, with reference to the trust property, has been in accordance with the deed, for the purpose of rebutting any presumption which might arise from the acts of the grantor. 10. Where debts are described in a deed of trust, as the consideration upon which it is founded, a misdescription, either as to the names of sureties, dates, or sums, will not affect the validity of the deed, and evidence may be given of debts created by notes, &c. variant in some respect from those described in the deed. 11. Where notes and other written securities are described as the consideration of a deed of trust, parol evidence may be given of them, without producing them to the jury, when they are not within the control of the party offering the evidence. 12. The admissions of a trustee having no beneficial interest in the property conveyed to him, cannot be given in evidence to defeat a deed of trust executed solely for the benefit of others. 13. Where one of the trusts of a deed was to pay certain outstanding judgments, and afterwards these were superseded by writs of error bonds, it is competent for the trustee to show their payment by him, after their affirm ance. Writ of Error to the Circuit Court of Perry. CLAIM interposed by Lockhart to certain property levied by virtue of a writ of fi. fa. at the suit of Graham against A. B. W. Hopkins. The fi. fa. was issued the 6th of February, 1843. The claim bond was not executed by Lockhart, though his name is inserted in its caption as one of the obligors. At the trial the plaintiff moved the Court to dismiss the claim for this reason; but the Court refused to do so, deciding, that as the claimant was a mere trustee his name as an obligor was unnecessary, if the bond, in other respects, was sufficient, and executed by those beneficially interested in the trust. In the further progress of the trial, the claimant offered in evidence a deed executed by Hopkins and Lockhart, dated the 1st November, 1841. It recites that the indentiture is made by and between Hopkins of the first part, Lockhart of the second, Graham v. Lockhart. and Samuel G. McLaughlin, Henry C. Lea, and "other persons," of the third part, and purports to be in consideration of the sum of five dollars, paid by Lockhart, and the "debts as security," thereinafter mentioned. It then conveys to Lockhart thirtyfive slaves by name, 1080 acres of land, of which the several parcels are described. "And also all his stock of horses, mules, cattle, hogs and stock of any kind; his corn, cotton, at that time gathered or ungathered; his farming utensils, all his household and kitchen furniture, carriage, sulky, and three waggons, and harness of each; all his notes, actions, accounts, suits, judgments or claims, in or out of Court, after paying the expenses on the same; all books, papers, rights of action, so far as the same can be conveyed; all right or interest which he had, either at law or equity, to the same, whether interested as an individual or as one of the firm of Hopkins, McLaughlin & Co., or Hopkins & Tarrant; all interest which he had in a mortgage assigned to him on the tavern establishment in the town of Greensborough, called the Warrior House, formerly or now, with all its lots, appurtenances, &c.; all his real and personal property, after paying off the judgments heretofore rendered against him." It then proceeds to declare a trust in these terms: "All of which is in trust, nevertheless, for the satisfaction of my securities and other creditors, and on the following express conditions, to wit: that in the event that any one or more of the debts herein enumerated, or any part of any or all, should not be paid off, settled, or in some way, by me, or by my agent, or representatives, satisfied by the 1st day of January, 1843, then and in that event, the said Lockhart, or his legal representative, shall, after having given thirty days previous public notice, on the Court House door of Perry county, and in one or more newspapers, if any be published at the time in said county, put up and expose to sale, at public outcry, to the highest bidder, for cash, the whole, or any portion, of the previously described property, and pay off the whole or any portion of the said debts, which remain at the time unpaid. The undersigned, A. B. W. Hopkins to retain possession of the said property for the purpose of aiding all the time in effecting the object of this deed: and the proceeds to be applied as aforesaid, in the same way as the balance of the property-paying the incidental expenses-and the said Lockhart, as trustee as aforesaid, or representative, to have the right to Graham v. Lockhart. possession at all times, whenever he deems it necessary for the security of said debts." It then proceeds to enumerate the debts to be secured and paid. These are thus described: One note for the sum of $8,041 86, payable to George W. Johnson & Co., made by Hopkins, H. C. Lea, S. G. McLaughlin, A. B. Moore, and others; due 25th Dec. 1841. One note for between $2,500 or $3,000, being an extended, or part of an extended debt, with A. W. Fletcher and C. J. Philips, payable to the Bank of the State of Alabama. One note payable at the Bank of Mobile, but discounted at the Branch of the Bank of the State of Alabama at Mobile, made by Hopkins with A. W. Fletcher and R. B. Walthall as his securities, for near $2,000, due about the 1st February, 1841. One note made by Hopkins, with A. W. Fletcher as security, for about $450, payable to Jesse Crone. One note, due about the 1st of January, 1841; made by Hopkins, for $275, with A. W. Fletcher as security, payable to P. W. Sink, guardian, &c. One note made fer the benefit of Hopkins, by W. J. Johnson, with R. B. Walthall as security, for about $450, due about the 1st January, 1842. To pay to Mildred H. Williams, or her heirs, a note payable to her for $3,000, due the 1st January, 1843, made by Hopkins. One note made by Hopkins, payable to S. G. McLaughlin, for $1,000, or upwards, due about the 1st January, 1842. The balance of a note due Nancy Lea; due 1842, for about $1,300. One note payable to Wiley, Lane & Co. for $1,423 04, dated 15th April, 1840, due eleven months after date, with current rate of exchange when due, made by Tarrant & Hopkins. One bill of exchange, made by the same, for $1,007 51, dated 8th June, 1840, due sixty days after date, drawn on Wm. Stringfellow, Mobile, Ala.; provided these two last debts should not be paid off by a deed heretofore made by Hopkins to L. G. Tarrant, for that purpose, among other things. Four notes amounting in all to $1,000, payable to E. D. King. made by the same. It then proceeds thus: "And in order that the property and Graham v. Lockhart. effects above named, may produce the greatest amount for the purpose herein specified, the said Lockhart is hereby authoriz ed to order applied, or apply, the present crop to the payment of the executions or judgments now standing against me; for any of which any portion of said property is liable to be levied on, or sold; to control my books, papers, property aforesaid; to sell and do as herein directed; to sell and do any thing, and every thing, necessary to carry the object of this deed into effect." It is also required of said trustee, that should there be a deficiency in the payment of the debts of the late firm of Hopkins McLaughlin & Co., out of the effects of the said firm, then also to pay one-third part, which is my portion of said deficiency, or debts. The said property may be sold on the premises, or at the Court House door of Perry county, as may be deemed best by the said Hopkins. And $1,000 of the demands in the hands of Lea & Towns, may, under the direction of the said Hopkins, be applied by said trustee, to such other debts or demands as may be against said Hopkins." The claimant called as a witness, one Godden, whose name appears to the deed as a subscribing witness; he stated that his signature was genuine, as was also that of M. A. Lea, another of the subscribing witnesses, since dead, but that he had no distinct recollection of ever having seen the parties sign it, or execute it, or of ever having heard them acknowledge that they they did so; that he had a faint recollection that some such instrument had been signed by him as a witness, one afternoon, some time before, but except from the genuineness of his signature to the deed, he could not say that he knew any thing positive about it. The plaintiff objected to the reading of the deed; whereupon the claimant asked the witness, if he did not know it was not his custom to sign such instruments without having seen them executed, or having heard them acknowledgd by the the parties, and whether he was not confident, that one or the other had been done, before he put his signature thereto. The plaintiff objected to this question, but the Court allowed the witness to answer it. The answer was in the affirmative, and the Court allowed the deed to be read, notwithstanding the plain Graham v. Lockhart. tiff continued his objection. Afterwards the deed was proved by another of the subscribing witnesses. The claimant offered evidence of a notice and sale under the deed, as well as other proceedings under it, pursuant to its provisions, but subsequent to the levy of the plaintiff's fi. fa.; to this the plaintiff objected, but the Court allowed the evidence, on the ground that the notice of sale, if in accordance with the deed, might go to the jury as evidence to rebut the idea of fraud, for which the plaintiff declared it was his intention to assail the deed. The claimant offered to give in evidence an original execution, in favor of the Bank of the State of Alabama, against A. B. W. Hopkins, N. W. Fletcher and Charles J. Philips, from the office of the Clerk of the County Court of Tuskaloosa county, for $2,489 70, besides costs; for the purpose of sustaining that part of the deed which asserts the existence of a note described in the deed, as due that bank. To this the plaintiff objected, on the ground that the execution was not duly certified; and also, because it contained no sufficient proof of the identity of the debt to be levied, with that described in the deed. It was allowed to go to the jury. The claimant offered in evidence, a note due 1st June, 1841, to P. L. Sink, made by Hopkins and N. W. Fletcher, for $275, without any other proof of its identity with a similar note described in the deed, than such as arose from the genuineness of the signatures. This note was produced from the files of Perry Circuit Court, in a cause in which judgment had been rendered. He also offered to prove, by William J. Johnson, the existence and contents of a note made for the benefit of Hopkins, by W. J. Johnson, with R. B. Walthall as his security, for about $450, due about the 1st January, 1842, without produciug the note, or accounting for its absence, except that the note was delivered to its payee. The witness was allowed to testify, and stated that he himself had executed the note for Hopkins's benefit. The Claimant offered in evidence, a note made by Hopkins to Mildred H. Williams, or her heirs, for $3,000, due 1st January, 1843, dated — February, 1841, and proved Hopkins' signature. It was also in evidence that Mildred H. Williams, at the date of the note, and time of trial, was a married woman. |