Harper V. Lindsey. December 26. January 4. instrument (and that is the most it can plausibly be contended Here, in the first place, 127 WASHINGTON, for Lindsey and Gray, said-The only question arising in this case, is, as to the construction of Harper's contract; for whatever that may be, Gray is certainly entitled to the whole of the residue of the land. 1. The written contract must speak for itself, and be interpreted by its own terms, without reference to any thing but what is contained upon its face. 1 Johnson's Ch. Rep. 282; 14 Johnson, 32-33; 3 Starkie on Ev. 995, et seq. 2. The specification of any thing in a contract, is an exclusion of things not specified. 1 Johnson's Chan. Rep. 183. 3. The call for natural or artificial objects in a contract, will control the call for quantity. 4th. The construction of this contract insisted upon by Harper, is most unreasonable; inasmuch as it does not admit of loss on his part, and by possibility, might subject Lindsey to great loss. There is no mutuality in Harper's construction of the contract. 5. There has been no practical interpetration of the contract, by the parties themselves, confirming Harper's opinion of it. TURLEY, J., delivered the opinion of the court. This is a bill for the specific performance of the following written contract: "Received of Robert Harper, one thousand dollars in full, for one hundred and twenty seven and a half acres of land, off the west end of my tract, on which I now live, adjoining the said Harper and Jno. P. Wagner;it is also understood, that said Harper comes to the Madisonville read, and from thence with the direction of my cotton patch fence, to the mouth of the gut on the river." Now it is contended, that this is a contract to purchase land by metes and bounds, and that the complainant is entitled to no land, east of the Madisonville road; though he looses, by this construction of his contract, thirty or forty acres of the quantity bought and paid for by him. Is this the legal construction of the contract? We think not. This contract is executory, and must receive such a construction as will accord with the intention of the parties at the time it was made. The intention was to sell and buy 127 acres of land, to be laid off, on the western end of the tract. This quantity was paid for. The second intent was, to make the Madisonville road and a line running from thence, in the direction of the cotton patch fence to the river, the eastern boundary, it being thought to be a convenient one, and to contain, at least, a sufficient quantity of land, to comply with the contract, perhaps more. Here then are two intents in a contract, contradictory to each other, both of which cannot be enforced. If complainant receive the quantity of land purchased by him, the Madisonville road, and a line from thence to the river, cannot be made the eastern boundary. If the Madisonville road be made the eastern boundary, then the complainant loses thirty or forty acres of his land, and the consequent amount of his purchase money. Which interest must prevail? Both law and justice say the primary. It was not the intention of the complainant to buy, nor of defendant to sell, the land to be limited by a line from the Madisonville road to the river, unless that should equal 127 acres, the quantity paid for. But the intention was, that the complainant should make the Madisonville road his eastern boundary, although it might include more land than the 127 acres contracted for. Then, as between Harper and Lindsay, the complainant is entitled to have the lines of his land extended east of the Madisonville road, so as to give to him 127 acres, the quantity which he intended to purchase. But it is further contended, for James M. Gray, who has become a party to this suit, by a cross bill, that after the contract between Harper and Lindsey, he became the purchaser of the remainder of the tract of land from Lindsay, and Harper V. Lindsey. V. Harper that Harper's line cannot be extended east of the Madisonville road, to his injury. Lindsey. Gray stands in no more favorable attitude, in relation to Harper's right, than Lindsey. His purchase was made after Harper's, his contract is executory, and therefore, as Harper's contract was first in point of time, he is first in point of right. But, in truth, Gray only purchased the residue of the tract, after Harper's was surveyed. This, of itself, independently of the principle above laid down, would give Harper the right, as against him, to have his land laid off, according to the legal construction of his contract, he being only entitled to the residue, after Harper's claim had been satisfied. We therefore think there is no error in the proceedings of the chancery court, and affirm the decree. NOTE. The RULE of interpretation, of which this case is an example, is thus expressed in a late work, Lieber's Political and Legal Hermeneutics, xiv 13. The general and superior object cannot be defeated by a less general and inferior direction; and, in general, the higher prevails over the lower, the principal over the specific direction. 18 American Jurist, 80. The following remarks and authorities relate to the construction of deeds where the metes and bounds are regarded as the superior object, and the quantity as the inferior and less general direction. In a conveyance of land by deed, in which the land is certainly bounded, it is very immaterial whether any, or what quantity, is expressed, for the description by boundaries is conclusive. And when the quantity is mentioned in addition to a description of the boundary, without any covenant, that the land contains that quantity, the whole must be considered as a mere description; for the quantity mentioned is an uncertain part of the description, and must yield to the location by certain boundaries, in case of a disagreement, whether the quantity mentioned is more or less than the quantity actually contained within the limits expressed. Per PARSONS, C. J., in Powell vs. Clark, 5 Massachusetts R. 355.—And see upon this subject, Sugden on Vendors and Purchasers, c 6, 3, Am. Ed,, where numerous American cases are collected upon this litigated point of law. Hoffman vs. Johnson, 1 Bland's Maryland Chy. R. 180; Pringle vs. Samuel, 1 Littell, 44; Brown vs. Parish, 2 Dana, 9; 8 Wheeler's American Common Law Cases, 286, 287. PEACOCK TS. TOMPKINS. CHANCERY. Debtor and Creditor-Assignment, what stipulation in will vitiate. If an assigning debtor make his note, at the time of the assignment, to the creditor, not to secure a debt then due, or advance then made; but in conside, ration of the creditor's verbal promise to allow him a further credit, to support his family, or carry on his business, and such note purport to be secured by the assignment amongst the real debts mentioned in it,-the deed will be set aside, at the suit of a judgment creditor of the assgnor, as fraudulent and void in law. SAME. Same-Assignment annulled for constructive fraud, how assignee to account. If an assignment for the payment of debts embrace some effects which are liable to execution at law, and some that are not, and it be set aside for constructive fraud, at the suit of a judgment creditor of the assignor, the assignee will account To the judgment creditor 1. For such effects, as existing in specie when the fi. fa. was issued, would, in the absence of the deed of trust, have been subject to its lien. 2. For the proceeds of such effects. To all the creditors parties in the suit 3. For all effects in his hands not subject to execution, as choses in action, &c. And, having converted the debtors effects into cash, he will be allowed a credit for so much thereof as he had applied to the satisfaction of his own debt, if himself a creditor; or of any other bona fide debt paid by him as assignor, before the complainant's lien attached: as also for all reasonable charges and commissions for care, and sale of effects, and collections. Ames v. Blunt, 5 Paige, 540; Grover v. Wakeman, 11 Wendell, 187, cited and approved. See post Ewing v. Cantrell. William Turner, a hatter of Gallatin, became indebted for materials in his business and other merchandise, to J. R. A. Tompkins in about the sum of $ 323 31 cents; to Patterson and Tompkins in the sum of 100 dollars; to Daniel McAuly in the sum of 146 dollars; to D. & A. McAuly in the sum of 629 dollars 14 cents; to B. & J. H. Peyton in the sum of 447 dollars; and to James Peacock of Nashville, for materials in his business exclusively, in the sum of 1072 dollars and 8 cents. On the 7th July, 1837, in order to secure the four first named debts, he conveyed in trust to Charles Lewis, by deed, his "frame shop as it stood on a lot of James L. McKoin's in South Gallatin, together with four kettles, one lead and three casts, then in said shop; all his stock of furs; all his finished and unfinished hats, hat trimmings and finishing tools of every description; all his notes due, and book accounts then due, or thereafter to fall due; all his household and kitchen furniture, consisting in part of one press, one bureau, one Peacock V. set tables, three beds, bedsteads and furniture, two sets windTompkins. sor chairs, and every article of furniture of house and kitchen that he possessed; also one horse and carryall and gear; and one writing desk and counter." The debts in question amounted to 1198 dollars 45 cents, and the property was estimated to be worth about 1600 dollars. To cover the deficiency, and probably to secure himself a further credit with J. R. A. Tompkins and D. & A. McAuly, Turner executed his two notes of the same date with the deed, one to Tompkins for 300 dollars, to be due on the 25th of December, 1837, the other to McAulys for 200 dollars, to be due on the 1st of January, 1838. On the next day, in order to secure his debt to Peytons, he executed another deed to R. H. Lewis, conveying to him "one frame shop on a lot of James L. McKoin's in South Gallatin, together with four kettles, one lead and three casts then in said shop; all his stock of furs; all his finished and unfinished hats, hat trimmings, and all other materials in said shop, and his tools and furniture of every description appertaining to the same; together with all his notes, dues, obligations, and book accounts then due, or thereafter to fall due in the pursuit of his trade; also one horse, carryall and gear," in trust if there should be sufficient left after discharging the four debts secured by the deed to Charles Lewis, or in the event that deed should be vitiated or set aside, and Turner should not pay Peytons by the first of January, 1838, then the trustee was to sell the property to raise a fund to pay said demand, &c. On the 20th of January, 1338, Turner appeared in the circuit court of Davidson and confessed judgment in favor of Peacock for the amount of his demand, 1072 dollars 8 cents. On this judgment a fi. fa. was sued out on the 28th of January, 1838, directed to the sheriff of Sumner which came to his hands on the 29th, and was returned the same day, nulla bond. Thereupon, on the 3rd of February, 1838, Peacock filed his bill in the Chancery court at Gallatin against the parties to the first mentioned deed of trust, stating that Turner had been allowed to retain the possession of, and consume the property mentioned in the deed, which he charged to be therefore fraud |