The opinion of the Court, upon the points argued, was pronounced by
Hutchinson, Ch.Upon a full hearing of this cause at the last term, as it respected the defendant Phelps, it was decreed that he should account. The real amount of which was, that he had so associated himself with Mack, and had received from Mack the property of the orator, under such circumstances, that, iiMach was liable to the orator upon the charges in the bill, Phelps is also liable with him, to any extent not exceeding the amount of the property of the orator, received by Phelps of Mack. That amount, as reported by the master, is $868 01, including interest to this time. Mr. Phelps excepts to this report, both because the claim is allowed against Him', and because his payments to Mack were not allowed him as an offsett. Both these exceptions present but the same questions that were considered and decided, in their full extent, in the degree that he should account. Dis*34covering no cause to be dissatisfied with that decision and decree, and, perceiving, that the sum in his hands exceeds the amount now claimed as against Mach, we proceed to dispose of the questions raised in the controversy with Mack.
There has been no attempt to excite a doubt of the liability of Mach to account with the orator for the avails of the land first deeded. The declaration of the trust, in the instrument recorded, has put that point at rest. Hence he submitted to a decree to account without prejudice, that is, saving his right to resist wholly other claims set up in the hill. So we treat the case; though there has been some misunderstanding or misrecollection upon the subject.
The lands conveyed to the orator by Mach, by the two deeds of May 7th, 1819,have been sold by him; but he denies all liability to account for the same. The deeds are absolute,and no writing is shown, Creating any condition agreed to at the time. Mach also denies in his answer, that the said two deeds were executed upon any trust or confidence, or upon any condition whatever. He seems not well advised in this part of the answer ; for, he had just before related the circumstances under]' which they were executed. After receiving the first deed and some personal estate,and becoming bail for the orator, he was sued as his trustee. He told the orator of this, and also told Mm “ he feared he should be injured by reason of his, the defendant’s, undertaking to assist said orator ; and therefore, the orator did, on the said 7th day of May, execute and deliver to the defendant the said two deeds of said second and third pieces of land.” — - The very terms of this part of the answer disclose a trust. They disclose the reason of the giving of the deeds. It was to prevent Mach from being injured by his assisting the orator. These deeds authorised Mach to sell the lands; but he had no right to the avails beyond what would save him harmless. It is difficult to conceive what he could mean, by denying the trust in his answer, unless it be, that they made no particular contract defining and regulating any trust or condition. So far it may be true; but, the very receiving the deeds as security for his assisting the orator, created him trustee for the orator, and liable to account for the balance. Indeed, Mack seems, himself, to have entertained the same sense of his liability, while executing his trust,, till about the time he sold the notes^ and assigned the mortgage to Mr .Phelps. When he sold the three pieces of land, he conveyed all by one deed. The price of the whole was fixed in gross. The instalments seem to have an entire reference to the. *35convenience of payment, and not to the accounting with different persons. The payments were all secured by one mortgage deed-His letter to the orator, informing that no money was collected for him, speaks of all these notes, as sources of receiving money for the orator, and alludes to them by stating the times when they severally become payable. He told Wyman that over five hundred dollars would belong to the orator, after paying the debts which he, Mack, was to pay. - This could not be true, otherwise than by considering the whole of this property alike holden in trust for the orator.
The Commissioner has reported a claim of the defendant, Mack, setup in his answer, of ,f 150,for which the personal estate, stock, he. was pledged. Mack contends that, if he accounts for the stock pledged, this demand secured by the stock, as by the bill of sale, must be allowed to him. The Commissioner has ascertained the'sum, and referred this claim to the Court; and we discover no gróunds for allowing it. He presents none in his answer. He says in his answer, that he received such and such property, naming it, worth less than $150, “and, upon that occasion, the orator did then execute to the defendant a certain writing,” of which he annexes a copy. The terms of that are, that the orator may redeem the property by paying $150.
If the orator was about to convey this personal property to the defendant, and mingle it in the common trust, the writing, or bill of sale, should show some consideration, in order to be of binding force. Probably this writing was deemed by the parties a proper instrument to show the title of Mack in the property. But, if Mack will contend that the $150, named in that writing, is a debt due to him in equity, it was incumbent on him, when accounting under oath, to tell something more than that such a writing was executed. He ought to have also said, that the sum was due him, and told for what it became due. Without so much, when the defendant is witness to his own claim,no equity appears in his favor $ but that stock, he. mentioned in the bill of sale, must be considered subject to the same trust as the real estate.
With regard to the claims -of Mack for the costs of the first suit, and of the arbitration, nothing appears but that he acted in good faith in those expenditures. It is said there was no need of attaching the property, as the notes were secured by the mortgage. But a suit upon the mortgage would only bring the land back again, and that was not the object of the orator. It was proper to en-deavour to collect the notes in the usual way. And nothing appears of any imprudence in Mack’s making the first attachment. *36]SJor j0 we think the arbitration so unauthorized', as to compeí Mack to lose the costs'. The business was done in his name.— He employed the officers and must defend them. And we musí aH°whim to manage the concern as he would his own, if done in good faith. The costs of the first suit and of the arbitration,as reported' by the Commissioner, are allowed the defendant. The cost of the last suit, reported at ,$170 11, stands upon a different ground. That wholly accrued after Esq. Arnold had received a power of attorney from the orator for the purpose, and had called upon Mack for a settlement, and requested him to deliver over the notes against Wilber, and Mack had refused. After that refusal, he acted upon his own responsibility. He ought, when thus called upon, to have made a settlement, and surrendered th© trust. This claim is disallowed.
Kellogg, solicitor for orator. Bradley, solicitor for respondents.Taking,then, the sum reported as due from Mack, $237 76
Add thereto the said cost disallowed, which the master provisionally allowed, - 170II
To this add said amount of personal property and interest, which he deducted, - 230 67
Makes due from said Mack - - $638 54
And the decree of the Courtis, that the defendants pay that sum to the Clerk of this Court, for the benefit of the orator, on or before the first Monday of August next, together with interest on said sum from this time till the time of payment, together, also, with the costs of this suit; and that, on failure, execution may then issue for the same against both defendants.