Gibson's Heirs v. Niblett

1 S. & M. 278

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

By the Chancellor.

The complainants file this bill as the heirs of Claudius Gibson, deceased, to enjoin a sale about to be made under a deed of trust, made by said Claudius, in his lifetime, by which the land was conveyed, in trust, to Richard Featherston, for the purpose of securing a debt, due from said Claudius to the defendant, Niblett. They show that the land was first purchased by Claudius Gibson, from Gibeon Gibson. That, before the sale to Claudius, Gibeon had made a deed of trust upon it, to secure a debt due from him to Niblett. The land was sold under this latter deed, and Claudius again became the purchaser, and, to secure the purchase-money, reconveyed the same land, by the deed of trust, which they now seek to set aside, upon the allegation that this latter sale, and deed of trust, were the result of an agreement by which Claudius Gibson w7as to become responsible to Niblett, for the debt due him from Gibeon Gibson ; and that the debt of Gibeon was based upon an illegal sale of slaves to him by Niblett. It is shown that the notes of Claudius Gibson, which the deed of trust was given to secure, are in suit in the United States Circuit Court, and are there defended, upon the ground that they were a mere renewal of Gibeon Gibson’s notes, which were based upon an illegal consideration. The case was submitted upon a general demurrer to the bill. The leading question raised by this bill wras very1 fully examined by me, in the case of Pease v. Ballard, Franklin, & Co., and I refer to that case for an exposition of my views, as applicable to' this. . Here the consideration which supports the notes and deed of trust, made by Claudius Gibson, is the land purchased by him, under the deed of trust made by Gibeon Gibson. The alleged illegality of the consideration of the latter cannot affect the consideration of the former. I think this point is too plain for argument. I see nothing in the suggestion of the pendency of a suit upon the notes, which should induce me to stay a sale under the deed of trust, until that suit is decided. The creditor is entitled to pursue, both his remedies on the notes, and upon the dee'd of trust, until by one or the other he obtains a satisfaction of his claim ; and the satisfaction of the one will necessarily extinguish the other. Let the demurrer be sustained, and the bill dismissed, at the costs of the complainants.