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Anderson, Adm'r. v. Ammonett.

land in payment of a pre-existing debt does not entitle the grantee to protection as an innocent purchaser, has been re-enunciated in the recent case of Jarman v. Farley, 7 Lea, 141. It follows, necessarily, that an assignee under an assignment to secure pre-existing debts cannot occupy any higher ground than an actual purchaser in satisfaction of such a debt. In the case therefore, of a constructive trust arising from the use by a guardian of the funds of his ward in the purchase of property, the ward's equity was held to prevail over the title of such an assignee: Turner v. Petigrew, 6 Hum., 438. So, of the equity of a claimant under an unregistered contract for a mortgage on the specific property: Cook v. Cook, 3 Head, 719. So, of the vendor's equity for the unpaid purchase money of land: Brown v. Vanleer, 7 Hum., 239. Of these last two cases, the correctness of the first has been doubted, and the second has been overruled in deference to the ' supposed policy of our registration laws: Simpkinson v. McGee, 4 Lea, 437; Jones v. Ragland, 4 Lea, 542. But these laws cannot possibly apply to an equity neither within their terms nor their policy. Such is a constructive trust or equity arising from fraud: Perry on Trusts, sec. 217. Of course, where instruments have actually been executed which are required to be registered, and the rights of the parties turn upon the priority of registration, the registry laws necessarily apply: Knowles v. Masterten, 3 Hum., 619; Myers v. Ross, 3 Head, 60; Kirkpatrick v. Ward, 5 Lea, 432; Simpkinson v. McGee, 4 Lea, 437.

The equity of the defendants in this case to be re

Anderson, Adm'r. v. Ammonett.

stored to their lands because of the fraud of Provine

is, therefore, an equity not within the purview or policy of the registration laws. It is a meritorious and substantial equity, which will prevail over the equity of a subsequent purchaser in satisfaction of a pre existing debt, and, a fort.ori, of a trustee or beneficiary under an assignment to secure such a debt. Both parties are equally innocent and equally meritorious, and their rights, as between them, must be determined by the settled law applicable to such cases. The leased property was surrendered by Provine to Hillsman and wife on September 25, 1868, and to Williamson and wife on the 1st of April, 1870, under decrees of the chancery court, and writs of possession. Neither the personal representative of Cooper nor the trustees under the assignments had ever been in possession of the premises. Both of the assignments were made to secure pre-existing debts, and without, so far as appears, any consideration passing at the time. The only consideration which could be inferred from the facts and circumstances would be the ensideration of the extension of time for which the notes secured in each instance had to run. The old notes and old assignment were not given, as argued by the learned counsel of the complainant, for the new notes and new assignment. They were simply extinguished by the foreclosure sale, as they would have ben by a sale under a court decree, and the conveyance of the trustee to Provine recites that, by parties, Provine executed his notes money, instead of paying the cash.

agreement of the for the purchase It does not ap

Rielly . English.

pear that the time was given upon any consideration other than the mutual interest of the parties. A valuable consideration includes not only some valuable thing or property paid or transferred, but also some loss of property or right, or the forbearing of some legal right or remedy: Perry on Trusts, sec. 220. The mere giving of time, however, in a pre-existing debt of itself can no more, in the case of a trust assignment to secure it, be treated as a valuable consideration, than the time which is necessarily given when such a debt is satisfied by the conveyance of property. If the extension of time alone can ever be treated as a valuable consideration within the rule of a bona fide purchaser, it must be when it is expressly bargained for. No such case is made by this record.

Affirm the decree with costs.

M. H. RIELLY v. C. B. ENGLISH.

1. WITNESSES. Administrators, Transaction with or statement of deceased. The statute which forbids either party, in an action by or against a personal representative, to testify against the other as to any transaction with, or statement by the deceased, cannot be extended by the courts to cases not within its terms, upon the ground that they fall within the evil which was intended to be guarded against.

2. SAME. Same. Same. Where, therefore, in an action of replevin, the defendant claimed title as the administrator of a deceased intestate,

Rielly . English.

the vendor of the plaintiff is a competent witness to prove the agreement between him and the deceased in relation to the chattel, although the title of the deceased was also claimed to be derived by purchase from the witness.

3 SAME. Same. Same. Book of accounts. In such an action, the book of accounts of the deceased, purporting to contain an account in his hand-writing, with the witness, is not admissible as evidence on behalf of the defendant to prove the state of accounts between deceased and the witness, with a view to establish the title of the deceased to chattel sued for.

FROM SHELBY,

Appeal in error from the Circuit Court of Shelby county. J. O. PIERCE, J.

L. & E. LEHMAN for Rielly.

SNEED & GREENE for English.

COOPER, J., delivered the opinion of the court.

Action of replevin for a safe, commenced before a justice. Upon the trial in the circuit court, the verdiet and judgment were in favor of the defendant, and plaintiff appealed.

Brewer and Stewart had been partners as merchants for about six months, in 1872. After the dissolution of their partnership, Stewart went into business separately, and conducted a store until his death in 1878. The safe in controversy seems to have been originally bought by Brewer before his connection with Stewart. After they separated, in 1873 or 1874, it was sent by Brewer to the store of Stewart, where it remained until his, Stewart's death, in 1878. The plaintiff

2-VOL. 9.

Rielly v. English.

claimed under Brewer by sale made in December, 1878, after Stewart's death. The sale, according to the testimony of both Brewer and plaintiff, was for one hundred and fifty dollars, of which eighteen dollars were to be paid in a debt due from Brewer to plaintiff, and the residue when plaintiff got possession of the safe. The defendant, who was the administrator of Stewart, claimed that the safe belonged to Stewart, and came to his hands as an asset of his intestate's estate.

The proof of the plaintiff tended to show that the safe belonged to Brewer, and was sold by him to the plaintiff. The proof of the defendant tended to show that Brewer had sold the safe to Stewart, and that he had paid for it. As rebutting evidence, the plaintiff introduced Brewer as a witness, and asked him to state the circumstances under which the safe was removed to Stewart's store, and what the agreement between him and Stewart was in regard to it. The defendant objected to the question, and the court sustained the objection, to which the plaintiff excepted.

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The question, it is obvious, went to the very heart of the controversy, and the materiality of the testimony is obvious whatever might be the purport of the auswer: Hogan v. State, 5 Baxt., 615. His Honor's ruling seems to have been based upon the idea that the real parties to the suit were Brewer and the personal representative of Stewart, and that the testimony was inadmissible under the Code, sec. 3813 d. That section is: "In actions or proceedings by or against executors, administrators or guardians,

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