Galt v. Dibrell

• Decision Date: 31 December 1836
• Citation: 18 Tenn. 146
• Parties: GALT v. DIBRELL and others.
• Court: Tennessee Supreme Court

18 Tenn. 146

GALT

v.DIBRELL and others.

Supreme Court of Tennessee.

December Term, 1836.

OPINION TEXT STARTS HERE

The facts of this case are stated in the opinion of the court.

J. Campbell and W. E. Anderson, for complainant.

R. J. Meigs and J. Rucks, for defendants.

TURLEY, J., delivered the opinion of the court.

Randolph Ross, a citizen of White county in the state of Tennessee, being indebted to William Galt, of the city of Richmond and state of Virginia, in the sum of $3,457, by bond bearing date the 3d day of July, 1816, and due on the 3d day of July, 1817, and to the Bank of Virginia in the sum of $15,000, due on the 12th day of August, 1820, did, for the purpose of securing said debts, on the 12th day of August, execute a deed of trust to William Dandridge and William Nickervis, of the city of Richmond and state of Virginia, by which he conveyed, in trust for the benefit of the said Wm. Galt and the Bank of Virginia, divers tracts of land in the counties of Warren and White, state of Tennessee; fifteen negroes, the names of which, not being recollected, were described as being nine of them in the possession of Reuben Ross and the remaining six in the possession of Wm. Ross, Sr., and also the stock in trade in two stores in the state of Tennessee, and one in the state of Virginia. By the provisions of said deed of trust, if Randolph Ross should fail to pay to Wm. Galt the amount of his debt on or before the 1st day of January, 1822, and to the Bank of Virginia the amount of its debt in three annual payments of $5,000 each--to wit, on the 20th day of January, 1822, 1823, and 1824--the trustees were authorized, after giving eight weeks' previous notice thereof in some newspaper printed in the city of Richmond, to expose to public sale such of the trust property as they might think proper, and to apply the proceeds thereof, first, to the payment of the expenses attending the execution of the trust; secondly, to the debt of Wm. Galt; and, thirdly, to that of the Bank of Virginia. And by the further provisions of said deed of trust it was stipulated that, until the time might arise when it should become necessary to sell in order to execute the trust, Randolph Ross should be permitted to possess the lands and premises so conveyed, to receive the rents and profits thereof to his own use, also the hire and profits of the slaves, and to have the supreme control and management of the stores and merchandise to the same extent as he might have done if the deed of trust had never been made.

At the time this deed of trust was executed, Reuben Ross and Wm. Ross, Sr., in whose possession the slaves were, were resident citizens of the state of Virginia. The deed of trust was never registered in the state of Virginia, but upon it the probate and certificate are endorsed, “Virginia, to wit: At a court of hustings held for the city of Richmond at city hall, the 20th day of June, 1821, this indenture in open court was proved as to Randolph Ross, Wm. Dandridge, Wm. Nickervis, and Wm. Galt, parties thereto, by the oaths of Anthony Robinson, Jr., Samuel Lemorne, and Anthony Robinson, witnesses to the same, which was ordered to be registered. In testimony whereof, I, Thomas C. Howard, clerk of the said court of hustings, hereunto set my hand and affixed the seal of the said court on the 20th day of June, 1821.

THOMAS C. HOWARD.”

“Virginia, city of Richmond, to wit: I, John Adams, mayor of the said city of Richmond and presiding magistrate of the court of hustings thereof, do hereby certify that Thomas C. Howard, above named, is clerk of the said court, elected and qualified according to law, and that his certificate is in due form. Given under my hand this 21st day of June, 1831.

JOHN ADAMS.”

“Virginia, to wit: I, Thomas Man Randolph, governor of the state of Virginia, do hereby certify and make known unto all persons to whom these presents shall or may come, that John Adams, whose name is signed to the annexed document, was at the time of subscribing the same, and now is, mayor of the city of Richmond and presiding magistrate of the hustings court thereof, in the state of Virginia, duly appointed and qualified according to law, and that to all his official acts as such full faith and credit ought to be given. Given under the great seal of the state, 21st June, 1821.

THOMAS MAN RANDOLPH.”

“State of Tennessee, White county: I, Turner Lane, register of the county of White aforesaid, do hereby certify that the foregoing deed of trust between Randolph Ross of the one part, and Wm. Dandridge and Wm. Nickervis and others of the second part, together with the sundry testimonials thereto annexed, was this 8th day of August, 1821, registered in the register's office of said county, in book G, and pages 90 and 100.” Then there follows a like certificate of registration in the county of Warren.

About the 2d day of July, 1821, Reuben Ross, having removed from the state of Virginia, arrived at Sparta and settled himself in the county of White, having with him the nine negroes described in the deed of trust as being in his possession in Virginia. On the 14th day of June, 1820, Anthony Dibrell, one of the defendants, became security for Randolph Ross, to the branch of the Nashville Bank at Winchester, for the sum of $750. On the 28th day of August, 1821, Randolph Ross conveyed to Reuben Ross twenty-one tracts of land subject to the deed of trust in favor of Galt and the Bank of Virginia. On the 29th day of August, 1821, he executed a deed of trust to Turner Lane and George Dawson for certain lands in the counties of Warren and White, to secure the payment of several debts therein specified, and among others that for which Anthony Dibrell was his security to the bank at Winchester, and on the same day he conveyed to Reuben Ross eighteen other tracts of land, subject to the trusts created in the deed to Dawson and Lane, and the negroes in dispute, subject to the trust in favor of Galt and the Bank of Virginia. The bill of sale conveys the negroes by name, and upon it are the following endorsements of probate and registration:

“State of Tennessee, White county: I, Anthony Dibrell, clerk of the White circuit court, do hereby certify that the acknowledgment of the within bill of sale from Randolph Ross to Reuben Ross, for the within named ten negroes, was duly acknowledged in open court and ordered to be certified. Let it be registered.

ANTHONY DIBRELL, Clk.”

“Registered and examined this 8th August, A. D. 1822.

TURNER LANE, Regr.”

“State of Tennessee, White county: I, Turner Lane, register of White county, do hereby certify that the foregoing is a true and perfect copy of a bill of sale from Randolph Ross to Reuben Ross, with the probate thereto registered in my office in book G, and page 91, the 8th day of August, A. D. 1822.

TURNER LANE, Regr.”

In addition to taking the property specified in these different conveyances, subject to the trusts therein stated, Reuben Ross, as a further consideration for their execution, did on the said 29th day of August, 1821, execute to Randolph Ross his bond, by which he bound himself to pay the sum of twenty thousand dollars, to be discharged in annual instalments of two thousand dollars each, to be appropriated in the first instance to the payment of the debts specified in the deed of trust of the 29th day of August, 1821, to Turner Lane and George Dawson. In pursuance of this agreement, Reuben Ross became bound, together with Randolph Ross and Anthony Dibrell, for the payment of the debt of $750. Afterwards, for the purpose of raising money to pay this debt to the Nashville Bank, Reuben Ross executed his note for the amount and interest thereon, with Anthony Dibrell and Randolph Ross as his securities, payable at the Bank of the State of Tennessee, at Nashville.

On the 26th day of January, 1828, this note thus executed by Reuben Ross was renewed at six months, for the last time in the joint names of Reuben Ross, Randolph Ross, Jacob A. Lane, Anthony Dibrell, Jesse Lincoln, Elijah Drake, and Thomas Ely, for $785, at which time a power of attorney was executed authorizing the president of the bank to confess a judgment at the maturity of the note if it were not paid.

In May, 1828, Reuben Ross departed this life. On the 1st day of August, 1829, Joseph Phillips, as president of the Bank of the State of Tennessee, confessed a judgment in the county court of Davidson, on the note last mentioned, against all the obligors except Reuben Ross, for the sum of $832.10 and costs. On the 24th day of October, 1829, Randolph Ross, Jacob A. Lane, Anthony Dibrell, Jesse Lincoln, Elijah Drake, and Thomas Ely moved the county court of Davidson for a judgment against John Paine and John Cain, administrators of Reuben Ross, as his securities to the note on which judgment had been rendered against them by the confession of the president of the bank, and obtained the same for the sum of $835.35 and costs. The negroes in dispute were sold under the process issued on each of these judgments, and were purchased by the defendant Anthony Dibrell, on the 12th of February, 1830, for the sum of one thousand dollars. On the 22d day of June, 1832, the executors of William Galt filed this bill of complaint against the defendants, asking that the negroes and land mentioned in the deed of trust of August 12th, 1820, be sold for the payment of their testator's debt.

The first question for consideration is as to the validity of the deed of trust executed by Randolph Ross to Wm. Dandridge and Wm. Nickervis on the 12th of August, 1820. It is urged by counsel for the defendants that it is void as to creditors for several reasons. 1st. For uncertainty in the description of the negroes, they being described, not by name, but by number and place of residence, to wit, nine in the possession of Reuben Ross, and six in the possession of Wm. Ross. This description is given, we think, with sufficient certainty. The maxim of law, that “ id certum est quod...