Statement of the Case.

under the first trust deed. S. then filed a bill to set aside the sale, and P. filed a cross bill to confirm it. The bill was dismissed. P. then filed this bill against S. and C., and all necessary parties, to have a trustee appointed to sell the land covered by the three trust deeds, and the improvements on it, to have a receiver of the rents appointed, and to have the rents and the proceeds of sale applied first to pay P. A receiver was appointed, and a decree made for the sale of the entire property, as a whole, by trustees whom the decree appointed, and for the ascertainment by the trustees of the relative values of the land covered by the first two trust deeds and the improvements thereon, and of the rear piece of land and the improvements thereon, and for the payment to P. of the net proceeds of sale representing the value of the land and improvements covered by the first two trust deeds, less the expenses chargeable thereto, and of the residue to C., and, out of the rents, to P., what he had paid for taxes and insurance premiums, and for a personal decree against S., in favor of P., for any deficiency in the proceeds of sale to pay the claims of P.; Held,

(1) It was the intention of both S. and P. that the first two deeds of trust should include the rear land as well as the front lot;

(2) The decree in the first suit by P. was so uncertain as to be practically void, and there was no effective appointment of a trustee and no effective sale to P.;

(3) P. was not estopped by that sale from having the property sold again;

(4) P. was not required, as a condition of the sale of the rear lot, to pay the whole of the debt due to C.; and the case was a proper one for selling the property as an entirety;

(5) It was, also, a proper one for the appointment of a receiver of the rents, and those rents in the hands of the receiver, after paying charges, ought to go to make up any deficiency in the proceeds of sale to satisfy the corpus of all the secured debts, and ought to be first applied to pay any balance due to P.;

(6) Under $ 808 of the Revised Statutes relating to the District of Columbia a decree in personam for a deficiency is a necessary incident of a foreclosure suit in equity;

(7) As the notes secured by the deeds of trust bore interest at the rate of nine per cent per annum, until paid, it was proper to allow that rate of interest on the principal until paid, and not to limit the rate to six per cent after decree, because the contracts were not merged in the decree;

(8) The rate of interest on the decree for deficiency is properly six per cent, under §§ 713 and 829 of said Revised Statutes.

(9) The statute of limitation not having pleaded as to any part of the principal or interest, the defendant cannot avail himself of it.

IN EQUITY. Decree in favor of the complainant. respondents appealed. The case is stated in the opinion.

The

Opinion of the Court.

Mr. William F. Mattingly and Mr. Enoch Totten, for appellants, Shepherd and others, and Mr. Henry Wise Garnett for Mrs. Gray, appellant, filed a joint brief, citing: Carpentier v. Brenham, 40 California, 221; Supervisors of Iowa County v. Mineral Point Railroad, 24 Wisconsin, 93; Howard v. Railway Co., 101 U. S. 837; Thompson v. Roberts, 24 How. 233; Rapalee v. Stewart, 27 N. Y. 310; Duff v. Wyncoop, 74 Penn. St. 300; Swanson v. Tarkington, 7 Heiskell, 612; Tuite v. Stevens, 98 Mass. 305; Grymes v. Sanders, 93 U. S. 55; Rogers v. Higgins, 57 Illinois, 244; Stockton v. Ford, 18 How. 418; McLaughlin v. Barnum, 31 Maryland, 425; Eastman v. Amoskeag Mfg. Co., 47 N. H. 71; Neilson v. Lagow, 12 How. 98; Dudley v. Price, 10 B. Mon. 84; Christmas v. Mitchell, 3 Iredell Eq. 535; Miller v. McIntyre, 6 Pet. 61; Miller v. Bealer, 100 Penn. St. 583; Wagar v. Stone, 36 Michigan, 364; Gilman v. Illinois & Mississippi Telegraph Co., 91 U. S. 617; Railroad Cos. v. Schutte, 103 U. S. 118; Kountze v. Omaha Hotel Co., 107 U. S. 378 Teal v. Walker, 111 U. S. 242.

Mr. Nathaniel Wilson and Mr. Walter D. Davidge, for appellee, cited: Strong v. Grant, 2 Mackey, 218; Mobile County v. Kimball, 102 U. S. 691; Gould v. Evansville &c. Railroad, 91 U. S. 526; Gardner v. Sharp, 4 Wash. C. C. 609; Walden v. Bodley, 14 Pet. 156; Hughes v. United States, 4 Wall. 232; Russell v. Place, 94 U. S. 606; Cromwell v. Sac County, 94 U. S. 351; Graham v. Railroad Co., 3 Wall. 704; Davis v. Brown, 94 U. S. 423; Dodge v. Freedman's Savings & Trust Co., 106 U. S. 445; Grant v. Phoenix Life Ins Co., 121 U. S. 105; Keyser v. Hitz, 4 Mackey, 179; Holden v. Trust Co., 100 U. S. 72; Philadelphia, Wilmington & Baltimore Railroad v. Howard, 13 How. 307.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 1st of June, 1874, Alexander R. Shepherd and his wife made a deed of trust to Andrew C. Bradley and William II. Philip, conveying to them real estate situated in the city

Opinion of the Court.

12

of Washington, in the District of Columbia, described in the deed as follows: "Part of lot numbered two (2) in square numbered one hundred and sixty-four (164), and bounded and described as follows, viz.: Beginning at a point on North K Street forty-three feet and nine inches (43 ft.) east of the southwestern corner of said square, and running thence west on K Street forty-three feet and nine inches (43 ft.), to said southwestern corner of said square; thence northwesterly along the line of Connecticut Avenue about eighty feet and ten inches (8019 ft.), to the south line of original lot numbered three (3) in said square; thence northeasterly and at right angles with said avenue and along the line of said lot three (3), about eighty-five (85) feet, to intersect a line drawn due north from the point of beginning, and thence due south to the point of beginning." The deed recited that Shepherd was indebted to George S. Pepper in the sum of $35,000, evidenced by a promissory note executed to Pepper, dated June 1, 1874, and payable in five years after date, with interest, payable semiannually, at the rate of nine per cent per annum, until paid, accompanied by 10 coupon notes for $1575 each, representing the interest; and it conveyed the land in trust to secure the payment of the notes. It gave power to the trustees to sell the premises at public auction, on a default in the payment of the notes or any instalment of interest, and to convey the property in fee simple to the purchaser. Shepherd covenanted in the deed to keep the buildings on the land insured during the continuance of the trust in the sum of $25,000, and to have the policies assigned to the trustees; and that, on his failure to do so, Pepper might do it and the premium he should pay should be considered as secured by the trust deed.

On the 22d of March, 1875, Shepherd and his wife executed to William F. Mattingly and the said Andrew C. Bradley another deed of trust, covering the same premises by the same description as in the first deed, to secure the payment to the said Pepper of a promissory note dated March 22, 1875, for $10,000, payable five years after date, with interest, payable semi-annually, at the rate of nine per cent per annum, until paid, accompanied by 10 coupon notes of $450 each, represent,

Opinion of the Court.

ing the interest. The other provisions of this trust deed were in terms like those of the first one, except that the insurance against fire was to be $10,000.

On the 15th of May, 1876, Shepherd and his wife executed a deed of trust to James E. Fitch and Lewis J. Davis, covering premises described as follows: "All that certain piece or parcel of ground situate and lying in the city of Washington, District of Columbia, and known and described upon the ground plat or plan of said city as lot number three (3), in A. R. Shepherd's subdivision of square number one hundred and sixty-four (164), said lot number three (3), fronting forty-three feet and nine inches (43 ft. 9 in.) on K Street N. W., and one hundred and nine feet and one-half inch (109, ft. in.) on Connecticut Avenue." The deed was made to secure the payment of a promissory note for $35,000, made by Shepherd, dated May 15, 1876, given to Mercy Maria Carter, payable three years after date with interest at the rate of nine per cent per annum, payable quarterly. This deed covered the same premises embraced in the first two deeds of trust, and an additional piece of land in the rear of those premises, having a frontage on Connecticut Avenue of 28 feet 21 inches, and running eastward across the rear part of the premises covered by the first two deeds of trust.

On the 15th of November, 1876, Shepherd and his wife executed an assignment, for the benefit of the creditors of Shepherd, to George Taylor, Henry A. Willard, and Samuel Cross, which assignment covered "lot 3 in square 164.” Willard refused to accept the trust, and Peter F. Bacon was duly appointed assignee in his place.

On the 11th of April, 1878, Pepper filed a bill in equity, in the Supreme Court of the District of Columbia, making as defendants Shepherd and his wife, Bradley, Philip, Mattingly, Taylor, Cross and Bacon. The bill set forth the making and contents of the two deeds of trust in favor of Pepper and of the assignment by Shepherd; that Pepper was still the holder of the note for $35,000 and the note for $10,000, and the coupon notes belonging thereto; that there were large arrears of interest due thereon; that the property was largely

Opinion of the Court.

encumbered with taxes, and had been sold for the taxes for the year ending June 30, 1877; that Shepherd had failed to keep the property insured, and Pepper had advanced the amount of the premiums of insurance: that Pepper had, in writing, requested the trustees, under the deeds of trust, to advertise the property for sale, but the defendant Bradley, a trustee under each of the deeds, had refused to do so, by a letter to Pepper, in which he also stated "that the trust does not cover the entire area of the house, cutting off about twenty feet of the rear."

There was and is a dwelling-house on the land, which covers the entire width on K Street, and at least a part of it extends the entire depth of the land embraced in the first two deeds of trust; and a part of the rear part of it is built upon the land covered by the deed of trust in favor of Mercy Maria Carter which is not embraced in the two deeds of trust in favor of Pepper.

The bill averred that at the time the two loans were negotiated by Pepper he was informed and believed that the two deeds of trust covered the whole of the house and lots; that he had nothing to do with the preparation of those deeds, but they were prepared by Shepherd or his attorney; that Pepper never saw them until after the negotiations were concluded and the money paid; that Shepherd alone was responsible for any mistake or omission; that at the dates of the deeds of trust the house was completed and occupied by Shepherd as a dwelling; that sub-lot A in square 164, being the premises not covered by the two deeds of trust in favor of Pepper, was at that time owned by Shepherd; that it was understood that the two deeds of trust in favor of Pepper would and did cover the whole area occupied by the house and grounds; that the part of the house not included in those two deeds of trust was what is known as the "picture gallery; that the rear end of it could be detached without marring or lessening the value of the property; that the plaintiff was entitled to enforce the collection of the moneys due to him, irrespective of any injury which the sale might do to Shepherd or any one holding under him; and that, in any event, the