dissenting said:
This is an appeal from a decree of the circuit court of Lynchburg, rendered on the 28tli of June, 1888, and is a second appeal in the ease which was first held at the March term, 1885, under the style of Mosby’s ex’or v. Moorman’s Adm’r and others. On the first appeal, the decree of the said court rendered on the 19th day of May, 1881, was affirmed by an evenly divided court.
At that hearing I filed my opinion in the ease as follows :
“On the 17th day of February, 1854, George T- Johnson and his wife, Zelinda S. Johnson, conveyed certain real estate to Charles L. Mosby and John M. Speed, situated in the city of Lynchburg, and county of Campbell, in trust to secure the payment to Charles H. Moorman the bond of the said Johnson for $5,620 70, dated January, 1st, 1854, and payable on demand.
“ The said real estate consisted of five lots in the city of Lynchburg, and a tract of land in the county of Campbell, and was more than sufficient to pay off the debt secured. All the parties except Moorman resided in the city of Lynchburg, and he lived just outside the city limits about a mile or so, and was often in the city. Johnson made several payments on the bond, but died in 1862, leaving the bond unpaid in great *434part, and his wife qualified as his administratrix. The said Johnson left six children surviving him, one being an infant,.
“In 1862, Mrs. Johnson not being possessed of sufficient personal estate to pay the debt due to Moorman, and being desirous of settling up the estate of her husband, she and the heirs of Johnson called upon Mr. Speed and requested that the trustees would sell enough of the real estate to pay off this debt to Moorman. Whereupon Messrs. Mosby and Speed advertised the real estate in the deed mentioned in the city newspaper to which Moorman was a subscriber, setting out in the advertisement that the sale was contemplated to pay the debt due Moor-man, and was to be made at the request of the heirs of Johnson. At the first offering there was no sale made. Uo price was offered with which the Johnson’s were satisfied, and it was taken in. Shortly after another advertisement was published, setting forth that there would be the sale of one lot only out of the five conveyed, and that at the request of the legal representatives .of George T. Johnson, dec’d, the sale would be made, and that the trustees were requested to state that the sale would be peremptory. Only one lot to be sold, and the sale of that to be peremptory. At this sale the advertisement was read in full by the auctioneer, at which sale one of the adult sons of George T. Johnson was present. At this sale Solomon Levi became the purchaser of this lot at the price of $9,840. This was December, 1862. He paid the purchase price, and the trustees made him a deed, reciting that by direction of the parties they had sold, but conveyed only as trustees, &c.
“ Soon after, the first time Mr. Mosby met Mr. Moorman, who was his standing client (Mr. Speed being at the state capital, as a representative,), Mr. Mosby attempted to pay him his debt against the Johnsons and take in the bond'of George T. Johnson. But Moorman refused to be paid-—-declined to receive confederate money. Mr. Mosby says this surprised him very much, that he had never before heard of anybody *435wlio had refused to receive this money, then in universal use and general circulation. The date of this tender and refusal is not discoverable, from the record, but is stated to be soon after the sale. The Johnsons were now notified of this unexpected turn in affairs, and so was the purchaser, Mr. Solomon Levi. Upon consultation, Mr. Mosby advised a chancery suit to arrange the matter in some safe way. Mr. Solomon Levi declared his wish to be off with the, bargain, to give up the possession of the lot which had been surrendered to him by the Johnsons, and to have back his money, which he could use otherwise to his own satisfaction.
“ The Johnsons insisted that the sale was a good one for them, and they intended to hold Mr. Solomon Levi to the bargain. In this state of affairs, the Johnsons replying to Mr. Mosby’s advice as to a chancery suit, employed Mr. John 0. L. Goggin, a lawyer in Lynchburg, to represent them, and he, after some delay, Mr. Mosby says, directed him to deposit the money in a savings bank, which was done May, 1863, to the credit of Charles H. Moorman if he would take it, and if not, for the Johnsons, and so. the matter was settled then. The purchaser, Mr. Solomon Levi, kept the land, the Johnsons kept the money, in a sort of perpetual tender in the savings bank subject to Moorman’s order. The result of the war broke the bank, it went into liquidation, and something was paid to depositors, and on this deposit $572 49 was paid to Moorman.
“ In 1878, Mr. Speed having before that died, Moorman instituted his suit to subject the residue of this real estate to pay the debt secured by the deed, and convened all the parties mentioned above, except Mrs. Johnson and Mr. Speed, who were dead, Mr. Speed’s personal representative and the new administrator of George T. Johnson, H. Hughs. Mr. Mosby answered, and gave the history of this sale, as far as he was concerned. The Johnsons also answered, acknowledging the sale; that default had been made in the payment of the debt; disclaim*436ing any knowledge as to whether Moorman had given any order or request for the sale (which was one of the provisions of the deed) and denying that the heirs of George T. Johnson had any power to alter the terms of the deed. Mr. Mosby soon after-died, and on the 2d of April, 1879, the cause was revived against his executor, the appellant here. Soon afterwards, on the —■ day of-, 1879, the Johnsons filed a cross-bill in the cause. In this bill they say: “ Tour orators and oratrix aver that they, nor any of them, ever requested said sale to be made by the said trustees.”
“ Mosby’s executor adopted Mr. Mosby’s answer as his answer to this bill; Solomon Levi answered; depositions were taken in the cause, and on the 18th day of May, 1880, the circuit court of Lynchburg held, by decree that day entered, that the sale by Mosby and Speed, i rustees, on the 15th of December, 1862, was without proper authority from the plaintiff, Moorman, and from some of the Johnson heirs; and that Mosby and Speed should be first held liable for the value of the property sold to Levi, before the other property conveyed in the deed or the lot sold to Levi should be subjected, and referred the enquiry to a commissioner as to what was the value of the lot in good money on the 15tli day of December, 1862.
“ The commissioner reported the value of the lot on the 15th of December, 1862, at $7,000. The circuit court, by decree entered in the cause on the 19th day of May, 1881, decreed this sum against the personal representatives of Mosby and Speed, with interest from December 15th, 1862. "Whereupon Mosby’s executor appealed to this court.
“ It is too late to deny, in this state, that Moorman could refuse to receive Confederate money if he chose to do so; and it must be taken as a concession that so much of his debt as remains unpaid, is still due to him notwithstanding the tender of the Confederate money. It is equally true that the trustees in a deed could not sell under the deed until so requested by the parties in ' interest. If requested to sell by the creditors, against the wishes of the debtors, they could bind the debtors only by a compliance *437with the deed of trust terms—and a court of equity, at the suit of the debtors, would have so restrained the trustees to a compliance with the terms of the deed, as the agreement of the parties upon the subject and the chart of their power. But in this case the debtors did not set up at the time, nor afterwards for sixteen years after the sale, any objection to the manner or the terms upon which the land was sold, and not until suit was brought by the creditor to sell the unaliened lands conveyed by the deed and not sold by the trustees, although the creditors at the time promptly refused to permit the proceeds of the sale to be applied to the debt secured—of which the debtors had immediate notice—and although the purchaser promptly-offered to be off with the bargain, give" up the land and receive back the money which could not be applied to the debt secured by the deed. If the money was refused by th'fe creditor and requested back by the purchaser, and was placed, by order of the debtors, in bank, subject to the order of the creditor, if he would take it, and if not, to their order, why was not this a payment to them of the money'-, and binding on them, as between them and the creditors, and as between them and the purchaser, and as between them and the trustees—indeed, as between them and all parties concerned? As between them and the purchaser, because they could not keep his money and withhold from him their land, for which the money was paid; as between them and the creditor, because it was their debt to him, and the tender was not an extinguishment of the debt; as between them and the trustees, because the payment to their order was a payment to them, and they could demand and accept payment of the money but once.
“ The trustees were the agents of both the creditor and the debtor. The creditor was entitled to demand payment of the debt, and in default to subject the- property to the satisfaction of the debt. The debtors had the right to pay the debt, and release the lien on their property. They had the right to have the deed executed and the debt paid, and the sur*438plus, whether in money or in unaliened property, was theirs. The personal representative of George T. Johnson, the debtor, had no other assets out of which the debt could be-paid. More property was encumbered by the deed than was necessary to pay the debt. The obligation of the debtor was to pay the debt. The right of the creditor was to subject only so-much of the property as was necessary to carry out this obligation to pay on the one side, and this right to demand payment on the other side. If the debtors requested the action of the trustees to that end, and it was had to that end only, was not this act, done by their own request, their act, and if their own act can they complain of it because, in an unexpected and heretofore unheard of way, it proved disastrous? Ought they to be heard to complain of their own agents, acting under their own direction, in accordance with their directions ?
“We have said they cannot bind the creditor against his rights,, without his consent, but cannot they bind themselves ? They did not act unadvisedly, not under any mistake, because, as we have seen, if they were mistaken in believing that the creditor would take the money and have it applied in accordance with the terms of the trust to the extinguishment of their debt to-him, they quickly.had abundant proof of that mistake, and' they then had the opportunity to retrieve their first mistake by using this money to extinguish the obligation they had unadvisedly incurred by delivering up the property to the purchaser, who was entirely willing to receive back his money and surrender the land he had bought under their and his mistaken belief that the proceeds of the sale, ample for the purpose, could be applied to the extinguishment of the lien thereon by the payment of the debt secured. But the Johnsons deny in their cross bill that they, or any of them, ever requested the trustees to sell this land. But this denial was not made until after the death of both the trustees. In their answer to Moor-man’s bill, they deny that they had the poioer to alter the terms of the deed. This answer was filed during the lifetime of Mr. *439Mosby, and the hill was filed shortly afterwards, within a year, Mr. Mosby having died in the interval. In both the answer and the bill they are speaking of an event which occurred more than sixteeen years ago. The answer spoke at a point of time nearer to the event, and before Mr. Mosby’s answer. The bill was filed after Mr. Mosby had answered and disclosed his evidence preserved, and after his death, and both appear to have been drawn by the same counsel. But the advertisement was exhibited with the answer of Mr. Mosby, and in that it is recited by Messrs. Mosby and Speed, all parties then living, that the sale was at the request of .the Johnson heirs, who desired to pay the debt secured, by the deed. This was in 1862. They then knew whether they requested it or not, and whether they were insisting on their right to pay the debt with the proceeds of one lot, and retain the other four lots and the tract of land in the county', conveyed to secure the debt, to Moorman, free of the incumbrance, and when the sale was objected to by them for want of adequacy of price, and a new advertisement published for the sale of one lot, and setting forth that the trustees were requested to say, by them, that the sale would be peremptory’, and the sale was made of property' in their possession, which they voluntarily' surrendered to the purchaser, they might fairly be. presumed, to know then how much of all this was true, or how much was false. But no presumptiou is necessary; it is proved, and not denied, that one of them was actually present attending the sale, aiding in its consummation, and that the terms of the advertisement were publicly read in- his hearing. But without any of this, the fact remains undenied that Moorman refused at. once to receive, .this money and to apply' it to the debt; that they were promptly notified of this refusal; that they then employed counsel to advise them and to protect their interest. How, then, let them explain why, if they had no part or parcel in this difficulty, had not made the sale, nor ordered nor requested it-, their counsel did not then advise them, if such *440be the fact, you are in no trouble; keep yonr lot; the purchaser can get no title. This was a special, a limited, a definite trust, to a single and distinctly designated end; the payment of a debt specifically designated, the purchaser must see to the application of this purchase money—return the money to Mr. Solomon Levi; keep your lot. Somebody seems to have so advised Mr. Solomon Levi, for he offers to cancel this sale, receive back his money, give up the lot, and abandon the purchase.
“ Mr. Solomon Levi tells us distinctly ‘ he offered to reconvey the property and cancel the trade, hit the Johnson heirs were the, very parties who insisted upon holding him to it and having the money deposited in bank.’ It is true also that Mr. Solomon Levi says that the trustees at the same time informed him that the sale was made at the instance and request of Moorman and the Johnson heirs; and this as to him is denied by Moorman, but there was no denial on this point by Moorman or anybody else until Mr. Speed was dead, and Mr. Speed was the trustee who initiated the proceedings looking to a sale of this lot. It is„ beyond successful denial in this case, when all the circumstances come to be considered, especially after sixteen years have passed, and all the principal actors have passed away—Mrs. Johnson, the mother, widow, and administratrix; Mr. Speed, the trustee first acting, and Mr. Mosby, the other trustee, all being dead—that the debtors, or those acting for them, requested this sale, which they not only ratified, but acquiesced in for so many years. The loss which has been ■ incurred of their property was their loss, and they ought to bear it; and the decree of the circuit court placing the loss on the trustees is erroneous and should be reversed and annulled,
“But the decree is also erroneous in ascertaining the measure of damages, if any were incurred by the trustees. The value of the lot constituted no measure of their responsibility. If they sold without authority, they made no valid sale, and the purchaser made no valid purchase; and if they have *441received Ms money without authority they can he only required to pay that back at its scaled value, to be credited by what was realized on it. But if he paid this to the Johnsons who received it, then the Johnsons owe it to him, and as equity delights to put the saddle on the right horse in the first instance, then the Johnsons should pay it to the purchaser; and we have arrived at the same conclusion by a different route, and the Johnsons may discharge this obligation by paying the debt to Mborman, after crediting the proceeds of the Confederate money, in good money actually received by him on this debt. But as the decree was made in this case without the personal representation of George T. Johnson being before the court., and without such representation before the court, how can it be justly determined ho'w much in all these years has been paid on this debt by Johnson’s administratrix ? And whoever may owe this money to Moorman owes only what is unpaid.
“The personal representative of George T. Johnson, though living at the time of the bringing of the Moorman suit, has never answered, and died before the first term of the court-after the suit was brought and before any answers were filed in the cause. The decree complained of should be reversed and the cause remanded.”
On the hearing at this term, it appeared that Mosby’s executor had' discharged the Moorman debt in full, having paid down in cash in sound currency over $17,000, discharging the said debt—principal, interest, and costs. But by the decree of the 28th of June, 1888, the said appellant, Mosby’s executor, has been required to pay the Johnsons $720 75, that being an estimated excess in the value of the lot sold to Solomon Levi over the whole amount of the Moorman debt. Mosby has never had the use of the lot nor the use of the purchase money, but promptly delivered that to the order of Johnson’s executrix, acting under the advice of her own counsel, so that the effect of the decrees herein is to allow the *442Johnson’s to realize on this lot twice—once from Levi and once from Mosby, in full both times; and Moorman has been allowed to speculate upon the estate of an innocent trustee by lending him money which he never borrowed, nor had ever had the use of for a single day for the long period of twenty-seven years; and in all this Mosby was merely a victim. The Johnsons procured the sale for purposes of their own, under the advice of counsel, received the purchase money, a part of which was actually paid to Moor-man, and both the trustees, Mosby and Speed, being dead, and Speed insolvent, this astounding result has been achieved. It was erroneous and a great hardship to compel Mosby under the circumstances of this case, to stand between Moor-man and the Johnsons as to the Moorman debt. But when the Johnsons received this money in 1862, when not at all depreciated, and insisted on holding it, and refused to give it up, and take back their lot, to compel Mosby’s estate to go further, and make the lot good to them a second time, at an estimated price greater than the Moorman debt, I think, is a step which can find no parallel in any case. I, therefore, am constrained to dissent from the opinion of the majority.
Degree affirmed.