duly recorded. Ritchey paid the first of said notes. On the second, Mitchell obtained judgment in his own name, which judgment is still unsatisfied. Ritchey made improvements on the ground of at least 50 dollars in value. On the 25th of November, 1834, Mitchell assigned his mortgage from Ritchey to John Thompson, as an indemnity to him for becoming surety for said Mitchell on, a note of over 500 dollars to one Sally Hurd. On the 8th of October, 1834, Rhinehard and Son obtained a judgment in the Decatur Circuit Court against Ritchey. On the 6th of April, the sheriff of Decatur county sold the part of the lot in question, by virtue of an execution against Ritchey on the judgment of Rhinehard and Son, to John Thompson for 5 dollars, and executed to him a deed. for the same, and Thompson took possession. Thompson has paid about 230 doll of the Mitchell debt to Sally Hurd, and the mortgage ro Mitchell is a security to him for but 300 dollars, that being the value at present of the ground covered by it. After the rendition of the judgment in favor of Rhinehard and Son against Ritchey, he and Thompson verbally agreed that the bargain between them for the part of the lot should be rescinded, and that Ritchey should re-convey the same to Mitchell, and the latter surrender the notes and mortgage to the former. This agreement was never executed, and amounts to nothing. Mitchell and Ritchey are insolvent. Jones paid to Mitchell the purchase-money for the part of the lot in controversy before filing this bill. Upon these facts Jones, the plaintiff, prayed for general relief. The Court decreed that Thompson should pay him 72 dollars and 64 cents; that the equity of redemption of Ritchey and Mitchell should be foreclosed; and that Jones should recover costs of Thompson. This decree cannot be upheld, nor the bill sustained. The bill cannot be supported as one for a specific performance, because the facts show that Mitchell, from whom alone the plaintiff holds any obligation for a title, has none himself, and can convey none to the plaintiff. May Term, 1850. MITCHELL V. JONES. 1850. May Term, No Court of Equity can compel Ritchey or Thompson to convey land to Mitchell, simply to enable him to fulfill his THE STATE Contract with Jones. As against Mitchell, the plaintiff's ROBINSON. only remedy is an action at law on his bond; and so the Court below seems to have considered. It cannot be sustained as a bill for the delivery up and cancellation of the mortgage, for this plaintiff has no title to the land incumbered by it, and can procure none, and hence has no interest in it that will enable him to ask it to be cleared of incumbrance. It cannot be upheld as a bill to redeem said mortgage, for the plaintiff has no right, title, or interest in it. The mortgage was never assigned to him legally or equitably. Nor do we think it can be sustained as a creditor's bill. It is true that Jones, by paying the purchase-money to Mitchell, for ground to which he cant get a title, is, in some sort, Mitchell's creditor; but stil this case does not fall within those in which a creditor has a right to go into equity to subject equitable interests to the payment of the debt due him. See the cases cited in Shirley v. Shields, 8 Blackf. 273. (1). Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. C. H. Test and A. Davison, for the appellants. (1) BLACKFORD, J., was absent. THE STATE, on the Relation of THE BOARD OF COMMISSION- Upon the failure of the clerk of the Circuit Court to pay over any money in his hands to the county treasurer, it is made the duty of the county auditor, by the statutes of 1843, to enforce the payment by suit; but a suit cannot be brought against such clerk for such failure on the relation of the board of commissioners. The statute of 1838 made it the duty of the sheriff and not the clerk to pay jury fees into the county treasury. ERROR to the Ripley Circuit Court. BLACKFORD, J.-This was an action of debt on a bond given by the clerk of the Circuit Court with sureties. The suit was against the administrator of one of the sureties. Two breaches are assigned. General demurrer to the declaration, and judgment for the defendant. The first breach states that certain judgments had been rendered by the Circuit Court, on indictments against certain persons for crimes, which judgments amounted to 1,000 dollars; that, afterwards, to-wit, on the 1st of April, 1845, said money was paid to the clerk of the Court, who failed to pay over the same to the county treasurer. The fines mentioned in this breach belong to the county seminary; and all moneys in the hands of the clerk, due to the seminary, should be paid to the county treasurer. Upon the clerk's failure to pay over any money in his hands to such treasurer, it is made the duty of the county auditor to enforce the payment of the money by suit. R. S. 1843, pp. 249, 250. We think this breach shows a case where, if the defendant is liable, the suit should be on the relation of the county auditor. The second breach states that certain suits had been determined by the Circuit Court, and that certain jury fees were taxed with the costs in those suits; that those fees, amounting to 1,000 dollars, were, on the 1st of April, 1845, paid to the clerk of said court by the persons liable for them; and that the clerk had not paid any of said fees to the county treasurer, nor to any other person authorized to receive them. By the statute of 1838, jury fees were to be paid by the sheriff into the county treasury. R. S. 1838, p. 293. That statute, as concerns this case, is considered to be still in force. It is the sheriff, therefore, not the clerk, to whom the persons liable for such fees should pay them. It not being any part of the clerk's duty to receive the jury fees, his sureties cannot be responsible for his conduct respecting them. The second breach, therefore, as well as the first, is insufficient. VOL. II.-6 May Term, 1850. THE STATE V. ROBINSON. Tuesday, May 28. May Term, 1850. SHAFFER Per Curiam.-The judgment is affirmed with costs. G. Holland, for the defendant. V. ALDEN. Tuesday, May 28. SHAFFER V. Alden. Trial of the right of property. The goods were taken as the property of B. on a writ of attachment against him by A. B. had executed a deed to C. for the goods in trust for the payment of certain specified debts; the deed provided that after the debts were paid, the overplus should be paid by C. to B.; afterwards B. executed another deed to C. in trust for the payment of other specified debts, after the debts first specified were paid, and providing that the overplus be paid to B.; after the execution of the deed and delivery of the property, A. took out an attachment and had it levied on said goods. C. obtained judgment. Held, that there was no error, as the record did not show that A. proved, on the trial, independently of his affidavit, the existence of a debt due him from B. APPEAL from the Bartholomew Circuit Court. BLACKFORD, J.-This was a proceeding commenced on the 12th of March, 1847, before a justice of the peace, by Alden against Shaffer, to try the right of property in certain goods. The goods had been taken by the sheriff of Bartholomew county as the property of one Meredith, on a writ of attachment against Meredith in favor of Shaffer. The defendant obtained a verdict and judgment before the justice. Alden appealed to the Circuit Court, and there obtained a judgment in his favor. Shaffer moved for a new trial, but the motion was overruled. The material facts are as follow: On the 30th of May, 1846, Meredith, being a merchant, and having in his store about 3,000 dollars' worth of merchandise, executed a deed for the goods to Alden, in trust for the payment of certain specified debts, amounting to about 1,400 dollars. The deed provided that, after said debts were paid, the overplus of goods, money, or securities, should be delivered by Alden to Meredith. The deed was recorded on the 27th of July, 1846. 1850. SHAFFER V. ALDEN. On the 15th of June, 1846, Meredith, still having pos- May Term, session of the goods, except such of them as he had sold, executed another deed for the goods on hand to Alden, in trust for the payment (after the debts named in the previous deed were paid) of other specified debts amounting to near 1,200 dollars. This second deed also provided that the overplus of moneys and goods should be transferred to Meredith by Alden. This deed was recorded on the 27th of July, 1846. In February, 1847, Meredith delivered possession of the goods remaining on hand to Alden. About two weeks after such delivery, namely, on the 23d of February, 1847, Shaffer took out an attachment against Meredith's goods, which attachment, on the next day after it issued, was levied on the goods in Alden's possession. The goods thus levied on were worth about 1,400 dollars. Shaffer's claim, as sworn to, amounted to 161 dollars. There was some evidence relative to Meredith's receiving and putting into his store some additional merchandise, after the execution of the deeds of trust; but the evidence is too indefinite to require further notice. Shaffer contends that the deeds of trust are void as to him, on account of their containing a reservation for Meredith of the overplus, after payment of the specified debts. This objection to the deeds would have been valid, if Shaffer had been a creditor of Meredith when the deeds were executed. 2 Kent's Comm. 535.-Goodrich v. Downes, 6 Hill, 238.-Barney v. Griffin et al., 8 N. York, L. O. 68. Whether the objection, had it rested on the ground that Shaffer was a subsequent creditor, could have been sustained, we need not stop to inquire. In the case before us, the transcript, which contains all the evidence, does not show that Shaffer proved that he was, at any time, a creditor of Meredith. The only mention of the subject made in the transcript is the following: "That the goods attached were of the value of 1,422 dollars and 55 cents, under the attachment of Charles Shaffer, whose claim, as sworn to, amounted to the sum of 161 dollars." All we understand from that passage is, that Shaffer's affidavit to |
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