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DOUB VS. BARNES. 127
JOHN DOUB)
vs - DECEMBER TERM, 1847.
ABRAHAM BARNES ET AL. )
[EQUITY——WAIVER OF JUDGMENT LIENS——EVIDENCE——MULTIFARIOUSNESS——
USURY——PRACTICE.]
THE defendants conveyed, by deed, a large amount of real and personal prop-
erty, to trustees, in trust, to sell the same, and outofthe proceeds to pay the
claims of their creditors, without priority or preference, except as the same
might exist by law. The trustees, in execution of their trust, sold parcels
thereof to the complainant and others. At the time this deed was executed,
there were unsatisfied judgments, toa large amount, against the grantors, upon
some of which, writs of scirc facias were issued, xaA.fw.ts rendered against the
original defendants in the judgments, and the terretewmts, the purchasers from
the trustees, and upon these fiats writs of jieri facias were issued and laid upon
the lands purchased by the complainant. Upon a bill to restrain proceedings
upon these executions, it was HELD
That if the judgment creditors assented to the deed of trust, and by their con-
duct induced the complainant and others to become the purchasers of the
land bound by their judgments, and to believe that they would look to the
trustees for the payment of their claims, and not to their judgment liens,
such conduct would furnish a valid equitable defence.
To allow the judgment creditors, after such a course of conduct, to enforce
their judgments against the purchasers, would be to permit them to perpe-
trate a fraud upon the latter. Upon such a state of facts, the purchasers
would not be bound to see to the application of the purchase money.
A defence, founded on such circumstances, can only be rendered available in a
court of equity, on the ground of fraud.
An injunction can only be dissolved by positive contradictory averments in the
answer; and, an answer founded upon hearsay is not sufficient to remove the
complainant's equity, though resting upon information derived from others,
it denies the facts out of which that equity arose.
Upon motion to dissolve, credit can only be given to the answer, in so far as it
speaks of responsive matters, within the personal knowledge of the defend-
ant, and unless, so speaking, the equity of the bill is sworn away, the injunc-
tion cannot be dissolved.
Although an answer, founded upon hearsay, is not to be treated as an answer
resting upon personal knowledge, it is sufficient to put the complainant upon
the proof of the averments of his bill.
An attorney either in law or in fact, would not have the power to bind his prin-
cipal by an agreement to surrender his lien upon the land, and to look ex-
clusively to the trustees, without an express authority for that purpose.
Where a party executing a deed made a formal proposition to his creditors, in
writing, which, some accepting, the trust was created, and upon a dividend
being made, a creditor received from the trustees an equal share with the
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