1. The circuit court did not err in permitting the trust deed to be read in evidence to the jury. It was not read upon the certificate of registration. This would not be proper in any case, as our statute authorizing deeds properly recorded to be evidence without further proof of execution, applies to absolute deeds, and not conveyances of this description. Bradford v. Dawson & Campbell, 2 Ala. Rep. 203; Desha & Sheppard v. Scales, 6 Ala. Rep. 356.
The certificate of the probate of the deed is not in conformity to the statute. Clay’s Dig. 152, § 7. This requires that the witness should swear to the subscription of the party executing it, setting out the name, — that the witness subscribed in the presence of the maker of the deed, and in the *376presence of each, other, and on the day and year named in said deed. These are guards which the legislature have thought proper to throw around the proof of execution of deeds to prevent frauds, and as the act prescribes the form to be observed, the courts cannot dispense with a substantial compliance with it. Phipps v. McGehee, 5 Por. 413. It is clear the deed is not void upon its face. The only objections urged to it are, that-there is no time fixed when the trustee shall execute the trust, but that the time of the sale is to depend upon the volition of the cestuis que trust. The trustee, by the deed is authorized to sell the property upon default of payment of the debt secured, when it falls due, and the fact that he may wait until he is required by the cestuis que trust to sell, does not have the effect to postpone the law day in the deed. See 8 Ala. Rep. 694. So, neither is it a circumstance from which we may infer the deed fraudulent, that the grantor invests the trustee with a discretion as to the manner of selling, whether privately or publicly. It may often times be highly beneficial to all concerned, to vest in the trustee a liberal discretion as to the disposition of the trust property. The courts will hold him responsible for any abuse of that discretion by which an injury is worked to the prejudice of the parties. In Vernon v. Smith & Morton, 8 Dana R. 251, it is held, that a stipulation in a trust deed that salaries shall be paid the trustees out of the trust property — that they may employ agents and pay them out of the trust funds, is neither indicative of fraud, or improper.
2. The admission of evidence by Houston, the county clerk, who testified that the deed was proved before him as stated in the certificate, though such proof might be improper, unless the certificate should be attacked for fraud, or a clerical mistake attempted to be shown, cannot be regarded as an error prejudicial to the plaintiff in error. The deed was not read as a recorded instrument, and consequently, this proof, which was not allowed to dispense with proof of its execution by other witnesses, could not prejudice the party. We see no error in the admission of evidence.
3. The charges given by the court are perhaps more favorable to the plaintiff in error, than by law he was entitled to ask. This court has uniformly held that a demand before *377action brought is not necessary, except where it was required to render the detention of the defendant unlawful, as, for example, where it terminates the relation of bailor and bailee. Bettes, adm’r, v. Taylor, 8 Porter’s Rep. 564. The point as to whether the plaintiff is bound to prove a bailment to sustain his first count, is not presented by the record. The defendant, if he desired to raise that point, should have asked a charge involving it.
That a sale of goods inclosed in boxes, and not exposed to the view of the bidders, is evidence of fraud, and highly reprehensible, there can be no doubt. But it is shown in this case that the plaintiff below had no connection with this sale; and while the maker of the deed, or any one interested, could set aside the sale upon an appropriate application, and charge the cestui que trust with the actual value of the goods SO sold, yet it cannot have the effect to render the trust deed void, if in its creation it was bona fide. If the goods thus sold were of value sufficient to satisfy the demand of Hudson & Brockman, who caused the sale thus to be made, and there-was no further claim to be satisfied out of the effects assigned, it might become a question whether the deed could be asserted against Brock, the purchaser; but even in this case, we apprehend a court of law could not in this collateral way declare the deed satisfied, by reason of damages accruing to the maker on account of the unlawful or fraudulent sale or conversion of the property by the cestuis que trust. As, however, the point does not necessarily arise in this case, we will leave it open.
The charge asked was, that the deed should be considered fraudulent, from the mere fact that a portion of the property conveyed was sold in an -improper manner, and this, without respect to the value of the property, or the injury which may have resulted from the act. It is not shown that any one-was injured by the sale, or, that if the goods had been offered in the regular way, they would have sold for more. Under such a state of facts, it would be going too far to say that the demand must be regarded as paid, and the property discharged from the trust.
The second charge asked was obnoxious to the same ob*378jection urged to the first. A stranger to the trust could not require the trustee to account for the property conveyed by the deed, and which had not been disposed of. We do not wish to be considered as deciding, however, that a bona fide purchaser of property left in the possession of the grantor in a trust deed, from such grantor, may not show the property he purchased has been discharged of the trust by reason of the payment or satisfaction of the debt secured by the deed; nor, that the deed can be held over the 'property of a debtor, for the fraudulent purpose of screening it from the payment of his debts; for it is too well settled to require the aid of authority to sustain the position, that a deed, valid at its inception, may become inoperative as a security by matter ex post facto. The point we decide here is, that after the law day, and before the extinguishment of the demand secured, the trustee has a right to recover by suit the property conveyed by the deed, and which has not been disposed of according to the requisitions of the trust, without being required, in a proceeding at law, to account for the property sold, or for that which remains. If the defendant alledges a satisfaction of the deed by sales of property or otherwise, he must prove it.
The declarations of Hudson would clearly have been incompetent, if offered by the plaintiff below, but they were offered by the defendant, and of course he is estopped from gainsaying their effect as evidence, and it was not indispensable that the note, which was the evidence of the demand, should have been introduced, after this proof was made. The case of Lockhart v. Graham, 8 Ala. R. 9, is in point.
The demurrer was properly overruled. The declaration is in the usual form, (see 2 Ch. Pl. 594,) and conforms to the precedents in the books. It results from what we have said, that there is no error shown by the record.
Let the judgment be affirmed.