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relations, to become a purchaser. And, there-ments and executions, which Ford had re

fore, it has been frequently held that a purchase made by a trustee, under judicial sanction and approbation, was not on that ground to be questioned or set aside. Campbell v. Walker, 5 Vesey, Jun. 678; Prevost v. Gratz, 1 Peters' C. C. Rep. 368; Jackson v. Woolsey, 11 Johns. 446; Gallatin v. Cunningham, 8 Cowen, 361.

So in Louisiana, where the general rule unquestionably prevails, it has been expressly held that a mother, being tutrix of minor heirs, might lawfully become a purchaser at a probate sale of property belonging to her deceased husband's succession, if sanctioned by the judge within whose jurisdiction the minors have been brought; and that this sanction may be given before or after the sale. McCarty v. Steam Cotton Press Company, 5 Louisiana Rep. 16,

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covered in the Circuit Court of the United States against one Stephen Douglas, as executor of J. S. Douglas, deceased.

The judgments amounted to some $18,000, and the marshal had levied upon two plantations, and the slaves thereon, of which the testator, J. S. Douglas, had died seized and possessed.

The bill set forth that Stephen Douglass, against whom the judgments had been recovered, neither in his own right nor as executor of J. S. Douglas, deceased, had any title to or interest in the plantations and slaves which had been seized under and by virtue of the said executions; and that the same formed no part or portion of the succession of the testator in the hands of the said executors to be administered. But that the whole of the said

Now, the record in this case shows that both | plantations and slaves, including the crops of

sales were preceded by family meetings, to deliberate and advise touching the interests of the minors; that they recommended the sales as necessary and expedient; that their proceedings were homologated by the judge, who there

cotton, and all other things thereon, were the *true and lawful property of the com- [*164 plainants; that they were in the lawful possession of the same, and had been for a long time before the issuing of the executions and seizure

upon ordered and decreed the sales to be complained of; and had acquired the said

163*] *made; that the property was appraised by sworn appraisers; notice of the time and place of sale regularly given; and, finally, that the sales were made by the judge of probates, ex officio, and in person, and by him struck off and adjudicated to the two appellees by name, they being the actual and highest bidders for prices above the appraisements. There can be no doubt, therefore, that both purchases were made with the knowledge, approbation, and sanction of the Court of Probates, and were recognized as valid in the subsequent proceedings of the succession; and, on the authority of the decision above referred to, were valid by the law of Louisiana, which, of course, must be

property, and the title thereto, at a probate sale of all the property belonging to the estate and succession of the said testator-which sale was lawfully made, and vested in the complainants a good and valid title. All which would appear by the proces verbal of the said adjudications, and the mortuary proceedings annexed to and forming a part of the bill.

An injunction was granted, in pursuance of the prayer of the bill, staying all proceedings on the judgments rendered in the three several suits, and also on the executions issued thereon against the property.

Christopher Ford, the adjudged creditor, in answer to the bill, denied the validity of the

obligatory in this case upon every other tribu-probate sales of the plantations and slaves to nal.

the complainants; and charged that they were

But further, if there had been no such judi- effected, and the pretended title thereto accial sanction, it is not competent to the appellant quired, by fraud and covin between the exeсиto make the objection. A purchase by a trustor, Stephen Douglas, and the executrix, the

tee, or other fiduciary, is not absolutely void, but voidable only. The heirs in this case are the cestuis que trust, and it is their right, and not the right of the appellant, who is a creditor only, and a creditor who has renounced all benefit under these mortuary proceedings, to call in question, or set aside, the sales made to the appellees. Winchester v. Cain, 1 Robinson, 421; Prevost v. Gratz, 1 Peters's C. C. Rep. 368, Wilson v. Troup, 2 Cowen, 195, 238; Opinion of Sutherland, J.; Davoue v. Fanning, 2 Johns. Ch. Rep. 252; Jackson v. Woolsey, 11 Johns. 446; Harrington v. Brown, 5 Pick. 519; Denn v. McKnight, 6 Halst. 385; Gallatin v. Cunningham, 8 Cowen, 379, per Colden, Senator.

Mr. Justice Nelson delivered the opinion of

the court:

This is an appeal from a decree of the Circuit Court of the United States, held in and for the Eastern District of the State of Louisiana.

widow of the testator, and one of the complainants, for the purpose of hindering and defrauding the creditors of the estate; that in furtherance of this design a large amount of simulated and fraudulent claims of the executor and executrix were presented against the succession, to wit, $53,000 and upwards in favor of the former, and $76,000 and upwards in favor of the latter, which were received, and allowed by the Probate Court without any vouchers or legal evidence of the genuineness of the debts against the estate; that these simulated and fraudulent claims were made the foundation of an application to the said Probate Court for an order to sell the two plantations, and slaves thereon, under whom the widow and one Archibald Douglas became the purchasers at the probate sale; that neither had paid any part of the purchase money to the executor or Probate Court; and which was the only title of the complainants to the property in question, upon which the defendant had caused the executions to be levied.

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In confirmation of the fraud, thus alleged in the probate sales in the parish of Madison and State of Louisiana, the defendant further

The complainants below, the appellees here, filed their bill against Christopher Ford, the appellant, and Robertson, the marshal of the district, for the purpose of obtaining injunctions to stay proceedings upon the several judg-charges, that the testator died seized and pos

sessed, also, of a large plantation and slaves and personal property therein situate in the County of Claiborne and State of Mississippi, inventoried at upwards of $70,000, besides notes and accounts to the amount of $161,000 and upwards; that the said plantations and slaves were, on application of Stephen Douglas, the executor, to the Probate Court in that State, and an order for that purpose obtained, sold and purchased in by the widow and executrix for about the sum of $40,000, and that the personal estate of $161,000 and upwards, of notes and accounts, were not, and have not been, accounted for by the executor to the Court of Probate.

165*] *In short, according to the answer of the defendant, the estate and succession of the deceased debtor, inventoried at about the sum of $300,000 and for aught that appears available to that amount, has been sold and transferred through the instrumentality and agency of family connections, under color of proceedings apparently in due form in the Probate Court, into the hands of the widow and a brother of the deceased, without adequate consideration, if consideration at all, and with the intent to hinder, delay, and defraud the creditors of the estate and particularly the defendant.

The complainants excepted to the answer filed by the defendant, because the matters and doings set forth therein could not, in law, be inquired into in the present suit, or proceedings instituted by the said complainants, and prayed that they might have the benefit of their injunction, and that it might be made perpetual. And thereupon it was agreed that the case might be set down for argument on the matters of law arising on the bill and answer; and that if the judgment of the court in matters of law should be for the defendant, the complainants might join issue on the fact, and testimony be taken in the usual manner.

The court, after argument of counsel, decreed that the exception of the complainants | to the defendant's answer was well taken, and gave leave to answer over, which was declined;

full and peaceable possession and enjoyment of the property until the conveyance was vacated and set aside by a direct proceeding instituted for that purpose; and that this step, on the part of the judgment creditors, was essential, upon the established law of the State of Louisiana, *before he could subject the property [*166 to the satisfaction of his judgment.

We have, accordingly, looked into the law of that State on this subject, and find the principle contended for well settled and uniformly applied by its courts in cases like the present. The judgment creditor is not permitted to treat a conveyance from the defendant in the judgment made by authentic act, or in pursuance of a judicial sale of the succession by a probate judge, as null and void, and to seize and sell the property which had thus passed to the vendee. The law requires that he should bring an action to set the alienation aside, and succeed in the same, before he can levy his execиtion. And so firmly settled and fixed is this principle in the jurisprudence of Louisiana, as a rule of property, and as administered in the courts of that State, that even if the sale and conveyance by authentic act, or in pursuance of a judicial sale, are confessedly fraudulent and void, still no title passes to a purchaser under the judgment and execution, not a creditor of the vender, so as to enable him to attack the conveyance and obtain possession of the property. In effect the sale, if permitted to take place, is null and void. and passes no title. Henry v. Hyde, 5 Martin, N. S. 633; Yocum v. Bullitt, 6 Ibid. 324; Peet v. Morgan, 6 Ibid. 137; Childress v. Allen, 3 Louisiana Rep. 477; Brunet v. Duvergis. 5 Ibid. 124; Samory v. Hebrard et al. 17 Ibid. 558.

The case of Yocum v. Bullitt et al., among many above referred to, is like the one before us.

The court there say: "The record shows that the slaves had been conveyed by the defendant in the execution by a sale under the private signature recorded in the office of the parish judge of St. Landry, where the sale was

and, therefore, the court adjudged and decreed | made. If the sale was fraudulent it must be

that the injunction therefore awarded in the case should be made perpetual; and it was further adjudged and decreed that complainants recover the costs of suit, without prejudice to the right of the defendant to any action he might think proper.

The decision of the court below, and the view which we have taken of the case here, do not involve the question, whether the matters set forth in the answer sufficiently established the fact that a fraud had been committed by the complainants against creditors, in the several sales and transfers of the property in question, through the instrumentality of the Probate Court, nor, as it respects the effect of the

regularly set aside by a suit instituted for that purpose; that it was not less a sale and binding upon third parties until declared null in an action which the law gives (Curia Phil. Revocatoria, n. 2); that the possession of the vendee was a legal one, until avoided in due course of law." The court further remarked, that "The same point had been determined at the preceding term, in which it had been held that a conveyance alleged to be fraudulent could not be tested by the seizure of the property or estate belonging to the vendor, but an action must be brought to annul the conveyance."

The principle runs through all the cases in the books of reports in that State, and has its

fraud, if established, upon the title derived un- | foundation in the Civil Code (art. 1965, 1973,

der these sales. If the case depended upon the decision of these questions, we entertain little doubt as to the judgment that should be given. The ground of the decision below, and of the argument here, is, that the complainants were not bound to answer the allegations of fraud against their title, in the aspect in which the case was presented to the court; that a title derived under a public sale, in due form of law, by the probate judge, protected them in the

1984), and in the Code of Practice (sec. 3, art. 298, 301, 604, 607), and in Stein v. Gibbons & Irby, 16 Louisiana Rep. 103. And from the course of decision on the subject it is to be regarded not merely as a rule of practice, or mode of proceeding in the enforcement of civil rights, which would not be binding upon this court, but as a rule of property that affects the title and estate of *the vendee, and cannot, [*167 therefore, be dispensed with without distיייי

ing one of the securities upon which the rights of property depend. It gives strength and stability to its possession and enjoyment, by forbidding the violation of either, except upon legal proceedings properly instituted for the purpose. Neither can be disturbed, except by judgment of law. For this purpose the appropriate action is given, providing for the seces sion of all contracts, as well as for revoking all judgments when founded in fraud of the rights of creditors.

In this court, a bill filed in the equity code is the appropriate remedy to set aside the conveyance. In the present case a cross bill should have been filed, setting forth the matters contained in the answer of the defendant. The vendees would then have had an opportunity to answer the allegations of fraud charged in the bill, and, if denied, the parties could have gone to their proofs, and the case disposed of upon the merits.

It is said that in some of the western States an answer like the one in question would be regarded by their courts in the nature of a cross bill, upon which to found proceedings for the purpose of setting aside the fraudulent conveyance. But the practice in this court is other

all events, we think it due to the appellant, and to justice, looking at the nature and character of the transaction and proceeding as developed in the pleadings, that the case should be cleared of all doubts and dispute upon this point. We shall therefore reverse the decree, and remit the proceedings to the court below, with directions that all further proceedings on the three judgments and executions be stayed, as it respects the property seized and in question, but that the appellant have liberty to file a cross bill, and take such further proceedings thereon as he may be advised.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to that court that all further proceedings on the three judg

wise, and more in conformity with the estab-ments and executions be stayed, as it respects

lished course of proceeding in a court of equity.

We are of opinion, therefore, that the appellant mistook his rights in attempting to raise the question of fraud in the probate sales in his answer to the injunction bill; and that instead thereof he should have filed a cross bill, and have thus instituted a direct proceeding for the purpose of setting aside the sales and subjecting the property to his judgments and executions; and that in this respect, and to this extent, the decree of the court below was correct.

But on looking into the decree, we are apprehensive that it has been carried further than the assertion of the principle which we are disposed to uphold, and which may seriously embarrass the appellant in the pursuit of a remedy that is yet clearly open to him.

The injunction issued, on filing the bill of complainants, commanded the appellant to desist from all further proceedings on his three judgments, or on the executions issued against the property; and the court, on the coming in of the answer, has decreed that the same be made perpetual. And further, that the complainants recover the costs of suit, without

the property seized and in question; but that the appellant have liberty to file a cross bill, and to take such further proceedings thereon as he may be advised; and that such further proceedings be had in this cause, in conformity to the opinion of this court, as to law and justice shall appertain.

HEZEKIAH H. GEAR, Appellant,

V.

THOMAS J. PARISH.

Judgment by confession, force and effect ofquestion of fact.

In this case, the pleadings and proofs show that a mortgage executed by the debtor to the creditor was really for an unascertained balance of accounts, which the sum named in the mortgage

was supposed to be sufficient to cover.

As it did not prove to be sufficient, and the creditor obtained a judgment against the debtor for the residue, the payment of the sum named in the mortgage was no reason for an injunction to stay proceedings upon the judgment.

prejudice to the right of the defendant to any THIS wapan appeal from the judgment of

action he may

It is at least a matter of doubt, and might be of litigation hereafter, whether, upon the broad and absolute terms of the decree used in enjoining the proceedings, the party is not concluded from further proceedings against the property in question, founded upon these judgments and executions.

Wisconsin, sitting as a court of chancery.

Parish filed a bill in the District Court of Iowa County, Territory of Wisconsin, for the purpose of compelling Gear to enter satisfaction of a certain mortgage executed by the former to him, or to reconvey the premises therein, charging, that it had been fully paid and satisfied; and for the purpose, also, of a perpetual stay of *a certain judgment [*169 confessed, and entered up in favor of Gear against Parish.

They must constitute the foundation of his right and title, upon filing a cross bill, to any relief, that he may hereafter show himself en168*] titled *to. The saving clause may not be regarded as necessarily leaving a proceeding The mortgage was executed on the 27th of of this description open to him. A question | April, 1836, and was given to secure the paymight also be raised, whether the judgments ment of $4,200, four months after date; and

are not so effectually enjoined as to prevent their enforcement against property of the judgment debtor not in controversy in this suit. At

the bill charged that the whole amount, with interest thereon, had been paid on the Ist of August, thereafter, and a receipt taken for the

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same; that Gear had refused to deliver up and cancel the said mortgage, or reassign the premises unless the complainant would pay, in addition, the amount of a certain judgment that had been obtained against him, and which, he charged, was given for part and parcel of the money secured by the mortgage, and of course satisfied with it.

The defendant, in his answer, set up that previously to the execution of the mortgage the parties had been engaged in extensive business transactions with each other; that he had, at different times, advanced large sums of money to and incurred many liabilities for the complainant; and that the mortgage in question was given to secure the payment of such an amount as complainant would be found indebted in on the final adjustment of their accounts. That no settlement had taken place or balance been struck between them; but that defendant had subsequently ascertained that the sum of $1,562.38 was justly due him, over and above the amount secured by the mortgage. That this demand was placed in the hands of an attorney for collection, whereupon the complainant confessed the judgment in question, with a stay of execution for six months.

The defendant further answered, and admitted that the mortgage had been fully paid and satisfied; but denied that he had refused to reconvey the mortgaged premises. On the contrary, he had executed and delivered to the complainant a release of all his right and title to the premises, and which had been accepted as satisfactory.

The complainant put in a replication, and the parties went to their proofs.

There were but two witnesses examined, one of them present at the execution of the mortgage, the other at the giving of the judgment. Hamilton, who was present at the execution of the mortgage, states that he was at Galena in the spring of 1836, when the parties were engaged in closing their business; that the amount on book due Gear exceeded $3,000, besides other charges and accounts outstanding, the amount of which was not then ascertained. That it was agreed a mortgage of $4,200 should be given, which, as was supposed by both parties, might be sufficient to cover the whole of the indebtedness; but that a settlement was to

which had been previously issued, enjoining the defendant, Gear, from collecting his judgment against Parish, should be made perpetual, and that the complainant recover his costs of suit.

On an appeal to the Supreme Court of the territory, by the defendant, the decree was affirmed, with costs. The case was brought here on an appeal from that decree.

The cause was argued by Mr. Breese for the appellant, and Mr. May for the appellee.

Mr. Breese contended that the decree was erroneous, because the answer of Gear denied all the material allegations of the bill on which the injunction was allowed, and they were not sustained by the depositions of Hamilton and Turney.

Mr. May, for the appellee:

The principle questions presented for adjudication in this case are the following:

I. Does the bill, answer, and proofs disclose a case in which equity can relieve?

II. What is the nature and extent of the relief to be granted in this case.

As to the first proposition, it is submitted that this is a case in which relief can alone be obtained in a court of equity. It may be viewed as an application to compel the specific performance of an agreement, which is exclusively the province of a court of equity; for at law redress may be had after a wrong is done, but equity can interpose and prevent the commission of a wrong. 1 Story's Eq. Jurisp. sec. 30. The relief sought in this case is the cancellation of a deed, and equity alone can afford this relief. 1 Johns. Ch. R. 520.

But in this case a judgment at law is sought to be rendered inoperative, and all proceedings thereon stayed and restrained. It is true that a judgment at law is conclusive between the parties thereto when the merits have been passed upon, and unless reversed operates as an estoppel; but when, in the procuring of such judgment, fraud or misrepresentation, or any description of mala fides has been practiced, *equity will grant relief. 2 Story's [*171 Eq. Jurisp. secs. 885, 887; 1 Ibid. sec. 192; 1 Fonblanque Eq. b. 1, ch. 1, sec. 3, note, 3d Am. ed. pp. 28, 29. The only way in which a defendant can reverse or annul a judgment at law is by a writ of error; but when a judgment is obtained by confession, he is without

be made thereafter, and the exact balance as-redress at law, for confession takes away error. lation to the original transactions are, in most | Parish are unreasonable and can have no effect, material respects, admitted by the defendant, we then have the averments of the bill (which

certained; and to be adjusted accordingly, whether it should exceed or fall short of the sum specified in the mortgage. Neither party was to be concluded as to the amount; that was to depend upon the final adjustment of the ac

counts.

170*] *Mr. Turney, the attorney who gave the judgment for Parish, states that he was consulted by him at the time a suit was threatened for the recovery of this balance, claimed as due over and above the mortgage; that at the request of Parish he had an interview with the attorney of Gear on the subject, when it was agreed that, if judgment was confessed for the amount claimed, the mortgage should be given up and cancelled, and all errors corrected, if any, on ascertaining the balance between the parties; that the judgment was given with this understanding.

Upon this state of the pleadings and proofs, the District Court decreed that the injunction

But where the plaintiff's attorney, in an action at law, made an agreement with a defendant that if she would confess judgment he would levy an execution, and satisfy the judgment out of the property of another defendant, keeping her harmless; and upon such agreement a judgment was confessed, but the plaintiffs neglected and refused to comply with the agreement, a court of chancery decreed a perpetual injunction of the judgment, and, on appeal, this court affirmed the decree. Union Bank of Georgetown v. Geary, 5 Peters, 99. It is submitted that this case is in all respects in point and conclusive, in this cause, so far as the question of jurisdiction and power to relieve is involved. Equity will relieve against a judgment obtained at law by confession. 3 Harris & Johns. 568.

The remaining inquiry in disposing of the first question is as to the case made out by the coniplainant. The allegation of the bill in reand are also fully proved by the deposition of Wm. S. Hamilton, who states that the books of account of Gear were produced, showing Parish's account, and that the amount of $4,200 was considered by all the parties as amply sufficient to cover all contingencies. The testimony of John Turney fully sustains the averments of the bill in relation to the compact and terms on which Parish confessed the judgment. But it may be argued that inasmuch as the defendant, in his answer, denies the allegations and equity of the bill in relation to this compact or agreement, it should be sustained by stronger proof in order to merit relief. It is conceded that, in equity, where any matter is averred by the complainant in his bill which is material, and the same matter is positively denied by the defendant in his answer, then the answer will prevail, unless the bill is sustained by two witnesses, or one witness and corroborating circumstances; but it is contended and insisted, that in this cause the principle is in no way applicable, and can have no bearing whatever. Equally as clear as the foregoing principle of chancery practice is another, that if a defendant, by his answer, introduces new matter, not responsive to the allegations of the bill, such new matter must be proved by other means (12 Peters, 190), or it cannot avail, and it may prejudice him by evincing a desire, on his part, to evade and lead off to matters foreign to the points in issue, or if a defendant's answer contains contradictory, unreasonable, or irreconcilable statements, or makes averments which are disproved by written instruments on the same point, or if it positively deny charges 172*] of which in the very nature of *the thing the defendant could have no personal knowledge, then the testimony of one disinterested witness, with corroborating circumstances, will prevail, and in some instances the court will treat the answer as a nullity, disproving itself, and the bill will prevail with one witness. 9 Cranch, 160; 2 Johns. Ch. R. 92; 5 Peters, 111; 4 Monroe, 174; 1 Munford, 373. In this case, Gear, in his answer, positively denies that Parish was induced to confess the judgment by the promise and undertaking of Mr. Hoge. Now, it requires no argument to demonstrate that this was a matter of which Gear could have no knowledge whatever. He was not present, and even if he had been informed, still he is unwarranted in stating positively, as of his own knowledge, what were or were not Parish's motives. Moreover, he avers directly that the mortgage or deed was never acknowledged or recorded, and yet the instrument itself, which was then in his possession, directly contradicts his averment, although it may be of but little importance whether this instrument were acknowledged and recorded or not, still a defendant, who has the means of correct knowledge within his exclusive control, is bound and expected to answer truly in all things, and if he makes statements in his answer, and at the same time presents that which absolutely disproves those statements, he thereby throws suspicion on his answer, and affects and taints its credibility.

If, then, the statements of the answer in regard to the agreement between Hoge and

is sworn to) sustained by testimony of Turney, and the admissions of Hoge as proved by Turney. And strong corroborating circumstances are observable in the supineness of Gear in this matter. Hoge was his attorney, admitted to be such in the answer, and resided in the same place with him, and if the agreement really was not such as stated by Parish, was it not very easy for him (Gear) to obtain Hoge's deposition disproving the bill? Yet he speaks positively, as of his own knowledge, of transactions and motives of which he could know nothing, except from information, and neglects to use the proof (if any such existed) of these things, which any reasonable man would have certainly resorted to. In this relation, the case from 5 Peters, 111, is very much in point; in that case, as in this, the agreement was with the attorney, and the defendants in that case denied the agreement with their attorney, of which they could have no positive knowledge; in this case the defendant has pursued the same course. The agreement between Parish and Hoge, the appellant's attorney, must be considered as proved. True, it is denied by Gear in his answer, but, as has already been shown, he knew nothing about it, and his denial amounts to nothing. It was expressly and exclusively the consideration in confessing the judgment, and it was a valuable consideration to Parish, as he alleges in *his bill, and appears [*173 by the testimony of Turney. It would have enabled him to free the title of the lands he had sold, and convey them, and, it may be argued, receive a pecuniary advantage by it; for this consideration Parish relinquished all defense in the suit at law. He states that he owed Gear nothing, that he had a good defense.

In the language of this court, in 5 Peters, 114, "It is unnecessary to examine whether this defense would have been available or not; the validity of the contract did not depend upon that question. It is enough that the bank considered it a doubtful question, and that they supposed that they were gaining some benefit by foreclosing all inquiries on the subject; and the complainant, by precluding himself from setting up the defense, waived what she supposed might have been of material benefit to her."

Gear did not fulfill this agreement, made by his attorney, Hoge; he states, as the reason for his failure, that he could not find the mortgage. But it is afterwards produced, and it must be presumed to have come from his custody. The promise and inducement to the confessing the judgment was not kept by Gear, or realized by Parish. Was not this transaction, then, an imposition or fraud upon Parish? If so, all proceedings on the judgment ought to have been restrained. Did not Gear make, by his attorney, an improper and unfair use of his possession of the mortgage, which had been fully discharged by Parish, as appears by the receipt, and the terms of the mortgage itself to induce Parish to confess the judgment. Schoale & Lefroy, 205.

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It is plain that Gear intended to hold the mortgage until the pretended balance was paid. That, as he recollected it, "said deed was given to secure this defendant the payment of the

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