1877. March Term. Utterb'k's V. Cooper. secondly, that there was no false representation or fraudulent device on the part of said Cooper by means whereof said Utterback was induced to become the purchaser of said stock, and that said Utterback has. adm'r suffered no damage by reason of any representation or device of said Cooper." And the court, Judge Keith, being satisfied with said verdict, ordered the same to be certified to the circuit court of Fauquier county, sitting in chancery. On the 23rd of September 1871, the cause came on to be heard on the papers formerly read, &c., and the verdict of the jury aforesaid. On consideration whereof, and for the reasons contained in a written opinion of the court, filed and ordered to be made a part of the record in the cause, the court being of opinion, in accordance with the verdict aforesaid, that there was no fraud or usury in the contract between the plaintiff and the defendant Utterback, and that under the circumstances shown by the evidence in this cause the debt due by Charles H. Utterback to Armistead Utterback in the lifetime of the latter, and secured by deed of trust of the 2nd of February 1859, became assets in the hands of the said Charles, &c., and being further of opinion that thereupon the said deed of trust ceased to operate as a security for said debt, and that the plaintiff in entitled to subject the real estate conveyed by said Charles H. Utterback to said Rasin by said deed of the 5th of July 1866 to the satisfaction of the debt thereby secured, proceeded to decree accordingly. Now it thus clearly appears that the fact that there was no fraud. or usury in the transaction aforesaid between said Cooper and Utterback is res adjudicata, and cannot be denied by any of the parties to this cause, as to all of whom, therefore, it must be regarded as conclusive. I have therefore so treated it in the foregoing opinion. 1877. March Term. Utterb'k's adm'r V. Cooper. 2dly. There was no intention on the part of Cooper in his transactions with Charles H. Utterback to defraud or injure in any respect the estate of Armistead Utterback. As said before, he and said Charles were perfect strangers when they commenced dealing with each other in this transaction, one living in Baltimore, and the other in Fauquier county, Va. Cooper, so far as appears from the record, was not anxious to make the loan, and declared his intention not to make it unless or until all the liens upon the land, if any, were discharged and released. He required proper certificates to be produced in regard to such liens; and all the judgment liens which appeared to exist were paid out of the purchase money. Not satisfied with Utterback's account of the matter, or even with the certificates thus produced, he employed counsel in Baltimore to come to Virginia and inquire into and investigate the title. Upon ascertaining in that way the existence of the deed of trust to Phillips to secure a debt to his father, Armistead Utterback, which deed was still on record unreleased, he enquired about it of said Charles, who assured him that the said debt was satisfied; that three of the bonds (one-half of the debt) had been paid to his father in his lifetime; that he was his father's administrator, duly appointed and qualified, as was the fact; that he and his two brothers and a sister were the next of kin and distributees at law of his father, and as such entitled to his estate; that he had paid to his brothers and sister their portion, and he exhibited a receipt of each of them to himself as administrator on account of their distributive portions for the sum of $1,000; his two brothers being two of the three sureties in his administration bond; that he had placed his accounts and vouchers in the hands of a commissioner in chancery for the settlement of his 1877. March Utterb'k's V. administration account, with directions to charge him. in such settlement with the remaining bonds to his Term. father, which he placed in the hands of said commissioner for the purpose. And he produced and de- adm'r livered to said Cooper å certificate from the commis- Cooper. sioner, showing him that his representation in regard to such settlement was true, and that the commissioner would make and return the settlement accordingly. And he also produced and delivered to said Cooper the letter, of which a copy is inserted in this opinion, from his counsel, Mr. Brooke, a lawyer of distinction of Virginia, perhaps well known by reputation, if not to Cooper himself, at least to his counsel. On the production of these papers, the counsel of Cooper in Baltimore did not hesitate to certify the title of Utterback to the land, trusting, as well he might, that so soon as the settlement could be made and returned, the lien of the deed of trust to secure the debt to Armistead Utterback would be released. Accordingly the arrange-ment between Cooper and Charles H. Utterback was made with the advice and under the direction of the counsel of the former, and in accordance with the opinion of the counsel of the latter. Now in all this transaction certainly Cooper acted in the most perfect good faith, and without any intention to defraud or injure in any respect the estate of Armistead Utterback, and without any knowledge of any such intention on the part of Charles H. Utterback, if any such existed. Charles H. being the complete personal representative of Armistead Utterback, had a perfect legal right to receive debts due to his intestate's estate, and give acquittances for the same, even though due by himself, and all persons dealing with him in good faith must be perfectly safe in so doing, even though the administrator may himself have been guilty of 1877. March Utterb'k's adm'r V. Cooper. fraud in regard to the estate, without any participation or knowledge on the part of such persons. If, therefore, Cooper was informed and verily believed either that Charles H. owed nothing to the estate of his father, or that he owed nothing beyond the amount of money actually paid by Cooper to said Charles H., and that the account and vouchers of said Charles H., as administrator of his father, were in the hands of commissioner Pugh for settlement, showing that the administrator had fully paid all that he owed to the estate of his intestate, and that the report of the commissioner would immediately be returned to and confirmed by the court; and if the honorable counsel of the administrator certified that his title to the land was such, as that Cooper could safely purchase it from him, surely Cooper was safe in making such purchase, no matter what was the actual state of accounts between the administrator and the estate of his intestate. As between the administrator and Cooper, the land belonged to the former, and he could convey a perfect title to the latter. He could sell it to him on whatever terms he pleased. Thirdly. But even if the debt due by the administrator to the intestate for the land should not be considered, as between the administrator and Cooper, as having been fully paid at the time of the sale by the former to the latter, an ample amount of the purchase money to make such payment was paid by the latter to the former, whose duty it was to apply it accordingly; and it must be considered in law as having in fact been so applied, so far as the said Cooper is concerned. After making such application the surplus belonged to the administrator in his own right, who might invest it, or any part of it, in the purchase of stock of the Navassa Phosphate company, or anything else he pleased. In every view of the case, therefore, I am of opinion that the law of it, and also the equity and justice of 1877. March Term. Utterb'k's adm'r V. it, are for Cooper; and I am for affirming the decrees Cooper. appealed from. STAPLES, J. This case was first heard when Judge Bouldin was a member of this court. His sickness and death, and a division of opinion among the other judges prevented a decision at that time. The case has again been argued very recently before a full bench. The argument on both occasions, oral and written, was able and exhaustive. I shall not attempt to follow the learned counsel in these discussions. Such an undertaking would swell this opinion into the dimensions of a volume. I propose only to discuss such portions of the evidence as may be deemed most material, and to state the principles of law which in my judgment control the case. It may be well in the beginning, perhaps necessary, to state some of the more material facts established by the testimony, and as to which there is no controversy. In the year 1859 Armistead Utterback, of the county of Fauquier, sold and conveyed to his son, Charles Utterback, a tract of land in that county at the price of $6,254.34, evidenced by six bonds of $1,042.39 each, payable annually, the first falling due the 1st of January 1863, and all bearing interest from the latter date. To secure the payment of these bonds, Charles Utterback executed a deed of trust upon the land, which was duly admitted to record. Armistead Utterback died in December 1862, intestate, but no administration was taken on his estate until the 25th September 1865, when Charles Utter |