
    Ebenezer Kilpatrick, et al. vs. William Dye’s Heirs.
    After a judgment in an inferior court, the removal of the case to this court, by a writ of error, with a bond, and a judgment by this court, affirming the judgment of the inferior court, or dismissing the writ of error, and entering judgment against the principals and surety in the writ of error bond, does not raise or destroy the lien of the original judgment: and the fact of a capias ad satisfaciendum having been sued out before the date of the writ of error, does not affect the principle. The lien, in such case, remains, until a satisfaction of the judgment by payment.
    Where a vendor, by deed of general warranty, conveyed a tract of land, which was subject to judgments older than the conveyance, and took the notes of the vendee for the purchase-money, and afterwards assigned them to different persons, the vendee will be entitled to relief in equity against the payment of the notes in the hands of the assignees, to extent of the judgment liens, and the loss must fall ratably on the holders of the notes.
    William Dye filed his bill in the district chancery court, ■charging that he purchased, on the 23d day of June, 1838, of James M. Ross, a tract of land, lying in Marshall county, at $7500, and took from Ross a deed in fee simple, with covenants of warranty, which was duly recorded, on the 25th day of June, 1838; that $2500 of the purchase-money had been paid by him, and his two promissory notes, one for $3000, due the 1st day of January, 1839, and the other for $2250, due the 1st day of January, 1840, for the balance, were outstanding, and wholly unpaid. On the 5th day of March, 1838, the said Ross purchased said tract of land of James H. Nelson, Thomas W. Chambers, and Francis Prentiss, and received from them a deed in fee simple, which had also been duly recorded. The bill further charges, that on the 22d day of December, 1837, Thomas Winston and Ephraim P. Shall, partners, under the firm and style of Winston & Shall, recovered a judgment against the said Nelson, Chambers, and Prentiss, as partners, under the firm of Nelson, Chambers, & Co., for the sum of $887 35. On which the defendants sued out a writ of error, on the 19th of January, 1888, having given bond and security, according to law, which was dismissed at the January term, 1839, of the high court of errors and appeals ; and on the 20th day of December, 1837, Ebenezer Kilpatrick recovered a judgment against the said Nelson, Chambers, & Co., for the sum of $802 10|; on which the defendants, on the 9th day of January, 1838, sued out a writ of error, giving bond and security according to law, which was also dismissed by the high court of errors and appeals, at the January term, 1839; and in both cases the high court of errors and appeals gave judgment against said defendants and their sureties, in the writ of error bond. The complainant further states, that the plaintiffs have sued out'executions on both of said judgments, and had them levied on said land, and will sell the same unless restrained, &c. He avers, that at the time of his purchase from Ross, he was totally ignorant of any adverse claim to said■ land ; that Ross, Nelson, Chambers, and Prentiss, are all insolvent; and he submits, whether the said judgments,are a lien on said land, and if they are, whether he is not entitled to a credit oil his outstanding notes, given for the land, to the amount of the judgment liens. He avers a willingness to pay for the land according to his contract; but not to pay the amount of said judgments in addition. He avers, that he is informed and believes his said note, for $3000, is in the hands of James M. Allen, as administrator of the estate of Jared S. Allen, deceased ; and the other note belongs, as he believes, to Ransom H. Byrn. The bill makes Kilpatrick, Winston & Shall, Ross, Allen, and Byrn, defendants; and prays for an injunction, &c. Kilpatrick, Winston & Shall, Allen, and Byrn, answered, admitting substantially the facts charged in t^ie bill; the first three insisting, that the lien of their judgments in the circuit court was unimpaired, and protesting against a further delay in the collection of their already unnecessarily protracted claims. Allen and Byrn state, that they paid full value for the notes, and protest against said judgments being allowed as credits on them, even if the judgments are held -to be liens on the land. Allen avers, that before the said writ of error, to the judgment in favor, of Kilpatrick, was sued out, a capias ad satisfaciendum was issued thereon, and on the 9th day of January, 1838, was executed by the sheriff of Marshall county, on the said Nelson and Prentiss, and that the proceedings thereon were stayed, by the writ of error to the high court of errors and appeals, which, he insists, discharged or extinguished the lien of said original judgment. On the 20th day of October, 1840, the death of the complainant was suggested, and the suit was afterwards revived in the name of his heirs; who, by leave, filed an amended bill, charging the issuance and service of a capias ad satisfaciendum, as stated in the answer of Allen, and that the proceedings thereon were stayed by the writ of error,' &c. No evidence was offered on either side. At the July term, 1842, the cause was submitted to James F. Totten, who was selected by the .counsel to decide it, the Vice-chancellor having been counsel-in the case, and consequently incompetent to sit; and a decree rendered by him, perpetuating the injunction against the said judgments, and directing the plaintiffs therein to pay costs, &c. From which decree the said plaintiffs have brought this case to this court, by writ of error.
    
      D. C. Glenn, for plaintiffs in error.
    The only question presented by the record is this — does the bringing of a writ of error into the high court of errors and appeals, and giving bond, destroy the lien of the judgment of the court below, upon the property of the defendant? Iam advised that this point has twice been before the court, and expressly decided in favor of the plaintiffs in error. Therefore I thus briefly submit the case to the court upon the facts.
    
      William G. Thompson, for defendants in error.
    One point in this cause is very nearly covered by the decision in the Planters Bank v. Calvit, 3 S. & M. 143. The only point of difference is, that in this case, before the writ of error was sued out, the defendants were taken in custody under a cci. sa. that operated a technical satisfaction of the execution ; and it is submitted whether it did not destroy the judgment lien. 1 Wash. 120-123. Should it be thought that the decree as to Kilpatrick must be reversed, notwithstanding this feature in the cause, then another important question arises. Dye was the purchaser of a tract of land, which is taken from him by force of the judgment lien, in favor of Kilpatrick, et al. Two of his notes for the purchase-money are still unpaid. The holders of those notes are now before the court. They set up, by way of defence, in their answers, that Dye induced them to take the notes, by his agreement to pay them; but this part of their answers is not responsive to anything in the bill, and there is no proof to sustain it.
    It is therefore submitted, that if he is defeated of his claim to the land by the older judgment lien, that he is clearly entitled to relief against the payment of his notes, and to a decree of restitution, if any part of the notes has been paid, since the decree from which the appeal is taken.
    The insolvency of Ross, the vendor, is shown ; the failure of title will be established; if the decree is reversed the notes will be without consideration ; and it is submitted that they should be declared void, and restitution awarded, in order to put an end to future litigation of the matter.
   Mr. Justice Thachek

delivered the opinion of the court.

This is writ of error to the district court of chancery. The first question presented in this case is, whether, after judgment in an inferior court, the suing out a writ of error, with bond, raises the lien attached by the original judgment. This question has been decided in the negative by this court, in the case of the Planters Bank v. Calvit, 3 S. & M. 143, and the circumstance of a capias ad satisfaciendum having been sued out before the date of the writ of error, does not affect the principle there decided. The lion, in such cases, remains until a satisfaction of the judgments by payment.

Another question which presents itself is, that in consequence of the principle just reiterated, there must necessarily be some and perhaps a total failure of the consideration of the notes made by Dye, for the purchase-money of the land subject to the judgment liens. Courts of equity will give relief in such cases. Parham v. Randolph, 4 How. 435. To what extent this may be the case in this instance, will require further investigation. It remains yet unascertained, how far the land in question will respond to the amount of the judgment by which it is bound.

The decree of the Vice-Chancellor is therefore reversed. It is ordered that the injunction as to Kilpatrick, Winston & Shall, be dissolved, and that the decree of the Vice-Chancellor dissolving the injunction as to Allen, Byrn, and Ross, be reversed, and that an account be taken to ascertain whether the value of the land in question exceeds the amount of the judgments which are liens upon it, and if it be so-ascertained, that the land exceeds in value the amount of the judgments, then that said Byrn and Allen be entitled to said excess, and be allowed to proceed to recover the same, in proportion to the respective amounts of their claims. But if the value of the land be not greater than the amount now due upon said judgments, then that Byrn and Allen be perpetually enjoined from proceeding upon their said claims, and from receiving anything thereon, and be decreed to repay any sum which they may have received thereon.

Mr. Justice Clayton, having been counsel below, gave no opinion.  