1880. March & al. V. H. Ellis and Thomas W. Peers a tract of land in the Term. county of Henrico, containing 1981 acres, in consideration of $9,000, nearly all of which was payable in Taylor deferred instalments secured by deed of trust on the same land bearing the same date, to Ro. A. Lancaster ter &als and Wm. D. Colquitt as trustees. The said Ellis & Peers were partners. The conveyance was not to them as partners on its face, though it was probably so intended, and by some if not all of the parties concerned was so considered. Lancas By deed dated the 27th day of April, 1857, the said Thomas W. Peers in his own right and as survivor of the late firm of William H. Ellis and Thomas W. Peers, late partners under the style of Ellis & Peers, and the widow and heirs of said William H. Ellis, (though the brother of said Ellis did not unite,) sold and conveyed to William Mitchell the said tract of land, in consideration of the sum of $5,739.16 in cash paid to said Thomas W. Peers surviving partner as aforesaid, and of the further sum of $11,478.32, secured to be paid to him, with interest from the date thereof. The said purchase money, or the credit portion thereof with interest, was secured by a deed of trust dated on the same day, whereby the same tract of land was conveyed by the said Mitchell to James M. Taylor and A. D. Williams in trust for that purpose. The legal title to the said tract of land being still in the said Lancaster and Colquitt, under the deed of trust executed to them by Ellis and Peers as aforesaid, to secure the payment of the notes given by the latter for the purchase money therefor, and default being made in the payment of some of said notes, and they being required to sell the same under said deed of trust, they accordingly, on the 6th of August, 1858, made sale thereof under the said deed of trust, for the gross sum of $11,114.62, the net proceeds of which March & al. V. Lancas sale amounted to the sum of $10,748.30, out of which 1880. the said trustees satisfied the sum remaining due and secured by said deed of trust to them, which left in their hands the sum of $7,334.11, in the disposition of Taylor which they wished to be governed by the direction of the circuit court of chancery of the city of Richmond, ter&als. which had jurisdiction of the matter. They were requested to pay over the said surplus in their hands, or so much thereof as was sufficient, in satisfaction pro tanto of what was alleged to be due under the deed of trust from said Mitchell, but inasmuch as the brother of Ellis, and who was one of his heirs-at-law, did not unite in the conveyance to Mitchell, the said trustees, Lancaster and Colquitt, were advised that they could not with safety thus dispose of said fund; and having held the same in their hands ever since it was received by them, awaiting the action of some party interested in the disposition of the said fund, to institute proceedings against them for a rightful disposition thereof, without any such proceedings having been instituted, they were advised to file a bill in said court against the parties interested in the question of distribution, so far as they were known to said trustees, and to ask that the rightful disposition and proper distribution of said. fund should be settled and adjudged by the decree of the said court. The said trustees Lancaster and Colquitt therefore instituted a suit in chancery for that purpose in the said court to which suit they made Peers in his own. right and as surviving partner of the said late firm of Ellis & Peers and as late administrator of said William H. Ellis, and all the other heirs-at-law and representatives of said William H. Ellis, who were numerous, and the said Mitchell, and said James M. Taylor and A. D. Williams trustees as aforesaid, defendants to the bill. The said suit was instituted in August, 1859. 1880. March Term. & al. On the 21st of December, 1859, on the motion of the plaintiffs, they were authorized to deposit the amount of the trust fund alleged to be in their hands, Taylor after retaining a sum sufficient to pay certain clerks' fees and costs, &c., in the Farmers bank of Virginia to the credit of the said cause, subject to the order or decree of the said court, and were required to file a certificate of such deposit. V. Lancas ter & als. On the 27th of December, 1859, such a certificate was accordingly filed, for the sum of $7,476.54. On the 28th of January, 1860, it appearing to the said court that there was then on deposit in the said bank to the credit of the cause, the sum of $7,476.54, the court ordered that John G. Williams (who was appointed a commissioner for the purpose), have leave to check on said bank for said sum, and after deducting a commission, &c., "lend out the residue, taking from the borrower a bond with personal security approved, &c., payable to the Commonwealth, and in a penalty, &c., conditioned to pay into the said court interest on the sum borrowed, semi-annually, at the rate of six per cent. per annum, and to pay the principal sum and all interest due thereon into the said court in sixty days after he shall have been served with a copy of an order or decree made herein, directing the payment of the same.” And said commissioner was also directed to take a trust deed on real estate ample in value to secure the payment of said bond, the title and sufficiency of said real estate to be approved, &c. But said Williams, before acting under said decree, was required to give bond, &c. On the 3d of March, 1860, the said Williams filed his report under said order, which was confirmed. In said report, said commissioner stated that, as directed by said decree, he drew out of bank the sum of $7,476.54, retained the sum of $74.76 (a commis March Term. & al. V. sion of one per cent.,) and loaned to Edward Mayo, 1880. the residue, to-wit: the sum of $7,401.78, taking from him his bond with William C. Mayo as security, in the penalty, &c., conditioned as directed by the decree, Taylor with a deed of trust upon the tract of land of said Mayo in Henrico county near Richmond, called Belleville. The security to the bond and the deed of trust having been approved by Commissioner Cary, the deed was duly recorded, and the bond and deed were returned with said report to the court. On the 15th day of February, 1863, the said Edward Mayo presented to the said court his petition, stating that he had borrowed the said fund on the terms aforesaid with which he had complied; but that he was then "desirous to repay the said loan, and thereby discharge his surety from liability, and his real estate from incumbrance." He therefore prayed that an order might be made, directing that the money due on said loan be collected and brought into court. And on the same day, on the said petition of said Mayo, it was "ordered that he pay into the Farmers bank of Virginia to the credit of this cause, the sum of $7,401.18 with interest from the 1st day of February, 1860, being the amount loaned to him on that day by John G. Williams, acting as commissioner of the court in this cause under an order pronounced therein on the 28th of January, 1860, which loan is secured by his bond in the penalty," &c., "with William C. Mayo as security therein, on file in this court, and a deed of trust on the tract of land of said Mayo in Henrico called Bellville, of record," &c.; “and upon his filing with the clerk of said court a certificate of such deposit, it" was "further ordered that he have leave to withdraw his said bond, which" was "to be delivered to him by the clerk, and that the said Williams, commissioner as aforesaid, do execute to the Lancas ter & als. 1880. March Term. & al. V. Lancas said Mayo a release deed for the said tract of land called Bellville," &c. On the 11th day of April, 1863, the said Mayo Taylor deposited in the said bank to the credit of the said cause, $8,821.67, and on the 16th day of May, 1863, ter & als, filed in the said cause a certificate of the said deposit. On the 9th day of May, 1863, it appearing that R. Milton Cary was trustee in the deed of trust from Edward Mayo conveying his tract of land called Bellville to secure the money loaned to him in this cause as aforesaid, instead of John G. Williams, who by mistake had been supposed to have been such trustee, and had therefore been ordered to release the said land from said deed; it was ordered that the said Cary should execute such a release. On the 17th day of December, 1867, the defendants, James M. Taylor and A. D. Williams, made oath to the truth of the statements contained in an answer made by them to the bill in the said cause, which answer was filed by them on the 24th of February, 1868. In that answer, for the first time, was any objection made by any defendant in the case, to the payment made by the said Mayo in Confederate money, of the debt due by him for the money loaned to him by an order of the court in January, 1860, as aforesaid. It does not appear that, until then, was any answer filed by any defendant in the cause. In that answer, the statement made in regard to the said payment is as follows: "Since this suit was instituted, it seems that the money has been deposited in the Farmers bank, and it has been checked out and loaned to Edward Mayo, who gave his bond with William C. Mayo as security, and executed a trust deed conveying a tract of land called Bellville, to secure a compliance with said bond; it further appears that the said Edward Mayo, without notice to these respondents, |