16. The bringing the action of trover waives the tort. Ibid. 17. When in trover for a slave against two, the plaintiff to show his right of property, offered the record of an action in detinue, determined between himself and one of the defendants—it was held first that the court could not reject the evidence, it not appearing but that it was intended as the foundation of proof of the identity of the slave in both suits, and that the record was admissible in this view, notwithstanding the first suit was against but one of the defendants. Reed v. Brasher, 3 P, 375. 18. Trover may be brought to recover back notes contained in a sealed letter. Moody v. Keener, 7 P. 218. 19. To maintain trover there must be property in plaintiff, and a conversion by defendant, and it seems that conversion may arise from a wrongful taking by an illegal assumption of ownership-by an illegal use or misuse, or by a wrongful detention. And in the last case alone, where the conversion arises from a mere wrongful detention, is proof of a demand and refusal Glare v. Mc Milion, 7 P. 279. St. John v, O'Connell, 7 P. 466. necessary. 20. When there is no proof that the possession was obtained unlawfully, evidence of a demand and refusal, are essential to authorize a recovery, for it seems that the bare possession will not be presumed tortuous. Ibid. 21. No objection can be taken in point of law to a declaration in trover against joint traders for the unlawful conversion of notes or other property, and the joint effects of the copartnership are jointly chargeable with the reparation of the injury. St. John surv. v. O'Connell, surv. 7 P. 466. 22. Generally a defendant in trover will not be allowed to give in evidence his answer to the demand for the chattle in suit, as it would countervail the general rule of evidence, though it would seem this rule has its exceptions, as when the demand is made by an agent, and defendant insists upon his authority, and evidence of the excuse for not complying would be admissible. Dent & Cade v. Chiles, 5 S. & P. 383. 23. And a temporary conversion will render a defendant liable; for a conversion which once has taken place, cannot be cured. Though a redelivery after a conversion might go in mitigation of damages. Ibid. 24. Trover lies to recover for the conversion of notes deposited as collateral security, when the debt for which they had been deposited is satisfied, and the amount of the notes with interest to conversion, and interest on the aggregate sum from that time to time of verdict, is the measure of damages. Ibid. 25. In declaration upon the false warranty of a slave, counts in case on the warranty and in trover, may be well joined. Caldwell v. Wallace, 4 S, & P. 282. 26. In an action of trover full costs are recoverable, notwithstanding the amount of the damages. Johnston v. Sims, 4 S. & P. 330. 27. When an attorney takes, in satisfaction of a judgment obtained by him for a client, a bond, which he afterwards transfers to his own use, in trover against the assignee by the client, evidence is admissible to show a ratification of the act of the attorney in taking the bond by the client, after the transfer of the bond; and the fact of the ratification of the transfer of the bond in such case, is one for a jury to determine, from all the circumstances of the particular case. Kirk v. Glover, 5 S. & P. 340. 28. The courts of law are authorized to investigate the justice and equity of the particular case upon similar principles by which the defence of partial failure of consideration is sustained. McGowan v. Young, 2 S. & P. 160. 29. It is a well established rule that in trover the defendant can defeat the plaintiff's action by shewing an outstanding paramount title in a stranger. 30. In trover by mortgagee, the legal measure of his damages is the amount of his mortgage debt, and the law recognizes no distinction in this principle, whether against a mortgagor or a stranger, but the recovery will be limited to the extent of the mortgage debt actually due. 1bid. 31. A having borrowed money of B, on an agreement to place in his hands a slave, whose services were to discharge the interest until the sum borrowed was returned, afterwards, on payment, got possession. Introver by B to regain possession-held that proof of the value of the services of the slave, by way of shewing that the whole amount borrowed had been discharged, was incompetent. Hamer v. Harrell, 2 S. & P. 323. 32. In an action of trover full costs are recoverable, notwithstanding the amount of damages was assessed at $1. Johnson v. Sims, 4 S. & P. 330. 33. The mere refusal to deliver property in the legal possession of one, is not of itself a conversion in law, though an absolute, unconditional, and unqualified refusal would create such inference of conversion as to authorize the action of trover. Dent & Cade v. Chiles, adm. 5 S. & P. 383. be met 34. A demand of one having the lawful possession of goods may by such qualified refusal as to rebut the presumption of a conversion sufficient to maintain trover, and evidence of declarations made at the time of demand by defendant, shewing a reasonable qualification of excuse for his refusal, founded on fact, would be admissible, if the court were first apprised that such declarations tended to establish the fact that such qualifications or excuse were made. Ibid. TRUSTS AND TRUSTEES. 1. The president of a bank may be a trustee under a deed of assignment executed by the bank for the benefit of its creditors, although the president execute the deed as one of the grantors. Pope v. Brandon, 2 S. 401. 2. The acts or omissions of trustees cannot defeat the right of the assenting creditors to the deed of trust, unless they contribute to the wrongful act. Ibid. 3. When A paid B a sum of money to be vested in personal property for the use of B's child, and B, instead of purchasing property, set apart a portion of his own with the consent and approbation of A-B considered as a trustee of his child, and the possession deemed good, so as to vest in the child a title against either A or B's subsequent acts. Hardwick v. Robinson & Wife, 1 S. & P. 99. 4. When a deed of trust has been made to secure the payment of money, and the trustee sells real estate in pursuance of said deed, and the cestui qui use, becomes the purchaser, but afterwards abandons the purchase, gives no credit in pursuance of it, and accepts of no conveyance, but procures a resale of the property by the trustee, such first sale will not be set up and sustained by a court of equity in opposition to an application to redeliver the property by the payment of the money with interest, which the deed was made to secure. Hogan & Wife v. Lepetric, sur. Stone & Co.. 1 P. 392. 5. If after such abandonment of the first sale the cestui qui use procures a second sale to be made of the same property by the same trustee without any renewal of his authority, at which the property is purchased at half the amount for which the first sale was made, the nominal purchaser in this last case being merely the medium of transfer to the cestui qui use, such second sale would be void. Ibid. 6. The analogy between a mortgage and a deed of trust, holds thus farthey are both conveyances to secure the payment of money, and the right to redeem before the sale is effected, is allowable at any time in either, but in neither afterwards. Ibid. 7. A sale to trustee by one having an interest therein of the trust property, induced by want of information as to the value of the article sold, and which is within the knowledge of the vendee, but not disclosed by him at the time, is fraudulent and void. Adm'r. Spencer v. Whittaker, et. al, 3 P. 297. 8. So when the active trustee of an association, having within his own peculiar knowledge and control, the condition of the company transactions, induced the holder of certain certificates, to believe that they were of little value, whereby a sale was made of part of them to the trustee, it was held that the sale was fraudulent and void. 1bid. 9. A stockholder, who acts as the agent and active trustee of a company, is entitled to a reasonable compensation for his personal services, while regulating the business of the association. Ibid. 10. Chancery will pursue and appropriate to its legitimate object, a trust fund in the hands of a stranger, to whom it has been paid by the trustee in satisfaction of his own debt. Swoope v. Trotter, 4 P. 27. 11. When a deed of trust is taken to secure an accommodation indorsement of a bill of exchange, and the bill not being negotiated, a new bill was taken, with an agreement that a new deed should be executed, and on application to the trustee, the date of the original deed was altered for that purpose, and duly recorded; and afterwards, the trustee, upon assurances of the debtor, that the debt was paid, took a deed of trust to himself on the same property-held that chancery would decree the sale of the property so as to secure the lien of the first cestui qui trust. Garrard et al. v. Webb, 4 P. 73. 12. A trustee employed to sell real estate, cannot, either directly or indirectly, effect a purchase of the property sold, for himself. Thus, when a commissioner appointed by the orphan's court to sell real estate, entered into an agreement with another to purchase the estate and divide the same-on the refusal of the purchaser to convey the half, under his agreement, chancery refused to enforce the agreement. Saltmarsh v. Beene, 4 P. 321.* 13. It is not essential to a deed of trust that the cestui qui trust should execute it or express his assent to it, as in the absence of proof to the contrary, the assent will be presumed. Wiswall v. Ross & Earle, 4 P. 321. 14. When a grantor in possession, executes a conveyance to one, as trustee, the title of the latter after a sale under the trust deed, cannot be defeated by evidence adduced by a subsequent purchaser from the grantor, that he was in the adverse possession of the estate when sold and conveyed by the trustee. Ibid. 15. One taking a mortgage of lands previously conveyed by deed of trust for the payment of a debt, would under a foreclosure, take only the interest which remained after the trust had been discharged. Ibid. * See the case of Braman, et al. v. Oliver, 2nd Stewart, 47, reviewed which is the case of a purchase by an administrator, 16. A sale made by a trustee would not be void because the advertisement of the sale omitted to specify the amount of the debt for which the property was sold. Ibid. 17. When deed was made in trust to secure a debt, and after several efforts to settle, which were resisted by the creditor and trustee, the latter endeavored to force a sale, which was prevented by an injunction; the trustee exerted himself to prevent the debtor from procuring security on the injunction bond, and the sale took place, and the trustee demanded specie and refused United States bank bills at 25 per cent discount, and became the purchaser at said sale-held: 1. That equity has power to set aside such a sale, so as to prevent a party from benefitting from his own fraud; and as in this case, the debtor was prevented from litigating his rights by the interference of the trustee in preventing him from giving the necessary security, the sale was set aside, and the slaves held as security for the amount due upon the debt secured by the trust deed. Driver v. Fortner, 5 P.9. 18. A payment of money made to a trustee under these circumstances, without any particular instruction from him, may well be applied by him to the extinguishment of a debt due to him by the payor, but not included in the deed of trust. Ibid. 19. That one has become the surety of another on his bond as executor, is sufficient to support a deed of trust. Perkins & Elliot v. Mayfield, 5 P. 182. 20. Whether money paid in pursuance of a parol agreement to purchase lands in co-partnership, would authorize relief in chancery, as a resulting trust must depend upon the certainty of the evidence; and although in this country parol evidence is admissible to raise a resulting trust, yet it is to be received with caution, and must establish the cause with clearness and certainty. Larkins v. Rhodes, 5 P. 195. 21. Chancery will assist and protect trustees in the performance of trusts whenever they seek the aid and direction of the court, as to the establishment, management, or execution of them. Trotter, adm'r. v. Blocker & Wife, et al. 6 P. 269. 22. Equity subjects trusts to the same construction that a court of law gives to legal estates, and a donee must have capacity to take, whether it is attempted to convey title directly to the party himself, or to another in trust for him. Ibid. 23. Chancery will relieve when trustee refuses to exercise his trust, and to do what is necessary thereto. Duncan & Lane v. Simmons, 2 S. & P. 536. See Chancery-Deeds-Detinue-Debtor and Creditor. TRUSTEES UNIVERSITY ALABAMA. 1. Trustees of the Uuniversity of Alabama, compose a public corporation entirely within the control of the Legislature, and such statutes of the Legislature, are not unconstitutional. Trustees University v. Winston, 5 S. & P. 17. 2. The question, of the right of the trustees to sustain an action upon a bond given for lands, may properly arise upon demurrer to the declaration, it containing no averment of any fact which would authorize the suit. Ibid. 3. The act of 1821-2, providing for a sale of the University lands, imposed an absolute forfeiture of the lands, as a penalty for failing to make punctual payment of the purchase money; so that bonds, given under the provisions of those statutes for University lands, are not recoverable, unless put in suit within three months after due. Ibid. 4. The vendee of such land, under these statutes, would have no right to pay the purchase money at any time within three months after the payment became due, and thus prevent the consequences of a forfeiture. Ibid. 5. The title of a purchaser of these lands is purely equitable, and the fee-simple remains in the trustees, until the whole purchase money is paid; so a failure to discharge the instalments on the day due, creates an absolute forfeiture, and vests the whole title immediately in the trustees, and discharges the vendees bonds. Ibid. 6. An election of the trustees to sue, upon the bonds of the vendee, must be made within three months after they fall due, and they must be sued within that time or not at all—and when it is made within that time, the equitable title of the vendee, which has been divested by a forfeiture, becomes revested by the suit and continues until a failure to collect the money by suit. Ibid. 7. In such case, a judgment and execution, the result of such suit, cannot be continued in force with intention of procuring their satisfaction in future —but in the event of a ca. sa. returned non est, or a fi. fa. returned nulla bona, the land being protected from execution becomes forfeited, and when resorted to under the law satisfies the whole judgment. Ibid. 8. When a commissioner, appointed by the governor to rent the University lands, had collected the rents, which he had never reported; it was held, that a bill for discovery and account was properly cognizable in equity, and the suit was well brought in the name of the governor, and there being an evident default in the non-payment of the money collected as rents, the chancellor properly decreed interest on the account. Bullock v. Governor, use of, 2 P. 484. |