delivered the opinion of the court.
We are satisfied by the evidence that the conveyance made by William Tigner, of the land constituting “ Millbrook ” and the other property embraced in it, was made as part of the testamentary scheme of the grantor, and, although by the conveyance the title of the property was vested in W. N. Tigner and C. H. Tigner, it was held bv them subject to the payment of the legacies created by the will of the grantor, whose plan was to make them the holders of the property and the payors out of it of the legacies. The circumstances all combine to *192show that that was the nature of the transactions which produced the deed and notes and will, and, this being the case, the grantees in the deed held the property subject to a trust which equity will enforce as a charge upon it. Anding v. Davis, 38 Miss. 574; 3 Redf. on Wills, p. 478, sects. 22, 30 ; 2 Jar. on Wills, 505, note 2.
The certificate of the clerk of the Chancery Court of Wilkinson County, that the notes were not found in his office after diligent search, was legal evidence of that fact (Code 1880, sect. 1628), and was sufficient, in the circumstances of this case, to admit evidence of the contents of the notes, and the evidence of their existence and genuineness, and of the office they were to perform is abundant. They were drawn up by William Tigner, signed by his sons W. N. and C. H. Tigner, retained in the possession of William Tigner with the deed he had made, written upon by him the 14th of September, 1854, six weeks before his death, left among his papers at his death, obtained by the makers as his executors, and delivered by them to the payees and legatees. They were exhibited to Mrs. Womack in taking her deposition, and should have been filed with it among the papers in the suit of Ogden et al. v. Tigner, and failure to find them in the office in which that suit was, made evidence about them competent.
Decree affirmed.