Davis v. Shaw

Miller, J., delivered the opinion of the Court. It appears from this record, that in March, 1810, Jacob W. Rizer, executed a deed of trust for the benefit of his creditors. The deed directs the trustee to apply the proceeds of sale to pay : 1st, all costs and charges of sale. 2nd. The claim of A. B. Shaw for a balance of $1200, due as purchase money on the real estate conveyed. 3rd. “ The sum of $500 to John Thrush, for which he now holds my note, endorsed by James H. Johnson, and J. B. Heironimus and Charles Stottler. 4th.

Two notes to Davis & Bros, of Piedmont, one for the sum of $550, and the other for $300, which are endorsed by Joseph Hendrickson and Thomas Paxton on the first, and the other endorsed by Joseph Hendrickson and Wm. H. Miller.” 5th. “A ⁴¹² note now held hy Wesley Dawson, for the sum of $500, on which Henry Wilson is endorser.” 6th. “ To pay David Davis the sum of $808, for which I have given my promissory note.” 1th. Then if there is any balance, it shall he distributed to other creditors, pro rata. The proceeds of sale which were distributed under the direction of the Court below, proved insufficient to pay all the preferred creditors, and a careful examination of the proceedings after the fund was brought into Court for distribution, shows that the only question raised hy these appeals are: 1st.

Was there error in that part of the Court’s opinion and order of February, 1813, which sustains the exception to the auditor’s first account, in so far as it allows a distribution to the note filed by Davis Bros.? and 2nd. Was there error in the auditor’s second and final account, which was ratified by the Court’s order of November, 1813, in so far as it allows the claim of John S. Thrush ? 1st. As respects the first question, there is no difficulty whatever. The debt due to Davis Bros, as described and provided for in the deed is on two notes, one for $550 and the other for $300, each endorsed by certain named parties.

The distribution by the audit, is to “Davis Bros, on their note dated April 12th, 1811, for $100.” This is one note for a different sum, executed more than a year after the date of the deed of trust; and there was no attempt or offer made to show its identity, or connection in any way, hy part renewal or otherwise, with the two notes mentioned in the deed. For aught that appears or was attempted to be shown, it was a subsequent, separate and independent debt, not secured hy the deed, and there was clearly no error in refusing to allow it to share in the distribution of this fund. 2nd. The deed provides that John Thrush shall he paid “the sum of $500” for which “he now holds my note ⁴¹³ endorsed” by three named persons. The instrument