
    J. & H. Brien v. Pittman & Co.
    November, 1841,
    Richmond.
    Foreign Attachment in Equity — Affidavit of Nonresi-dence. — In proceeding by foreign attachment in chancery, Held, error to decree for plaintiff without affidavit of defendant’s non-residence.
    Same — Judicial Sale — Lands—Bond from Plaintiff. — Error, to decree sale of lands, without requiring bond with surety from plaintiff, in double the reported value of the lands, with condition for performing future orders or decrees:
    Same — Same—Same—Terms of Sale. — Error, to decree a sale of lands for cash:
    Same — Same—Same— Payment to Creditor — Conveyance to Purchaser. — Error, to direct payment of money to creditor and conveyance of land to the purchaser, before the sale is reported and confirmed.
    This was a foreign attachment in chancery, sued out of the circuit superior-court of Jefferson, by 33. Pittman & Co. against John & Henry Brien, the absent debtors, and Brown, the garnishee. The bill alleged, that John & Henry Brien owed Pittman & Co. the sum of 1599 dollars with interest &c. and were not residents of Virginia ; that they owned land in Jefferson called the Ore Banks, and another piece of land on which Brenner’s ferry was located, and they had considerable effects in the hands of Brown: therefore, the bill prayed *a decree for the debt due to the plaintiffs; and that the lands and the effects of the absent defendants might be attached and made subject to the claim. But there was no affidavit (as the statute, 1 Rev. Code, ch. 123, $ 1, p. 474, requires) that the defendants John & Henry Brien were absent from the commonwealth, or that upon enquiry at their usual place of abode they could not be found so as to be served with process.
    The process was served on Brown, the garnishee; and the order of publication against John & Henry Brien having been published, and proof of the debt claimed by Pittman & Co. against John & Henry Brien being offered ; the court proceeded to decree, that John & Henry Brien should pay Pittman & Co. the sum of 1599 dollars with interest &c. and costs, and that Brown should out of their funds and effects in his hands pay the same; and the court appointed three commissioners, who or any two, being first sworn, should value the lands of John & Henry Brien in Jefferson, and also enquire what funds in personal estate they had within the power of the court, out of which the plaintiffs might have satisfaction of their claim.
    The report being accordingly made, shewing that Brown had goods in his hands of John & Henry Brien of 800 or 1000 dollars value, and six horses and six carts valued at about 500 dollars, and that their land at the Ore Banks was worth about 5500 dollars, and the other parcel at Brenner’s ferry was worth about S00 dollars; the court decreed, that, unless the absent defendants should pay the debt decreed the plaintiffs before the day of sale thereinafter appointed, John M’Endree, who was appointed a commissioner for the purpose, should sell the personal property, and, after satisfying' two prior claims, should apply the residue to the payment of the claim here decreed; and, after exhausting the proceeds of the sale of the personalty, that he should sell the said two parcels of land, for cash, to the ^highest bidder, after advertising the time, place and terms of sale for four weeks successively in one of the newspapers printed in the county of Jefferson. And the court ordered the commissioner to pay the plaintiffs out of the proceeds of the personal property, as far as it would reach, so much of the debt, interest and costs as the same would suffice to pay ; and that he should deliver the personal property to the purchasers, and make a deed to the purchaser of the realty, and make a report to the court. But it was ordered, that the plaintiffs should not have the benefit of this decree for the payment of the debt claimed by them until they should have entered into bond with surety, in the clerk’s office of the court, in a penalty equal to double the amount of the sum decreed to be paid, with such condition as the law requires in the case of absent defendants.
    Pittman & Co. executed the bond with surety. And shortly after, John Brien appeared and obtained leave to file his answer, upon giving security for costs, so as nowise to withdraw the property attached from the lien of the attachment. This answer stated, that the debt was justly due Pittman & Co. and that he himself was not an inhabitant — and that the lands in Jefferson were held by the defendants John and Henry (who owned four parts out of six) and Luke Brien (who owned the other two parts of six). And thereupon, the court ordered the commissioner to make sale only of the undivided interests of John & Henry Brien in the lands.
    Before the commissioner proceeded to execute the decree, the Briens applied by-petition to this court for an appeal from the decree; which was allowed.
    The cause was argued here by Berry for the appellants, and Robinson for the ap-pellees.
    
      
      Foreign Attachment in Equity — Issuance of Subpoena-Previous Affidavit of Nonresidence. — It was held in Moore v. Holt, 10 Gratt. 284, that it is not necessary that the plaintiff in a foreign attachment in equity shall file with the clerk an affidavit of the nonresidence of his debtor before the process is issued, in order to constitute it, with the endorsement in the nature of an attachment, a lien when served; and Judge Lee, who delivered the opinion of the court in Moore v. Holt, said, on page 288, that the case of Brien v. Pittman, 12 Leigh 379, does not decide that the affidavit must be filed before the subpoena can issue. He says: “The court in that case held that it was error in the court below to proceed to decree against absentees without an affidavit of nonresidence, or that upon enquiry at their usual places of abode, they could not be found. Nothing is intimated of any necessity to file this affidavit before-the subpoena issues; and it is expressly held that the answer of a defendant admitting that he was a nonresident would render any affidavit unnecessary.”
      The principal case is cited to the same effect in Pulliam v. Aler, 15 Gratt. 59; Chapman v. Railroad Co., 26 W. Va. 314. See. foot-note to McKim v. Fulton, 6 Call 106.
    
    
      
      Judlcial Sales — Real Property — Terms of Sale. — The principal case is cited in Pairo v. Bethell, 75 Va. 833, as authority for the general rule, that real property of value should be sold on a reasonable credit, unless under peculiar circumstances, and the circumstances to take the case out of the general rule should appear by the record. See Kyles v. Tait, 6 Gratt. 45, and note; and monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
   ALLEN, J.,

delivered the opinion of the court — 'That there was error in proceeding to decree against the absentees, ^without affidavit that the said defendants were out of the country, or that upon enquiry at their usual places of abode, they could not be found, so as to be served with process. The proceeding by foreign attachment being an innovation upon the common law, and liable to much abuse, the mode of proceeding prescribed by the statute should be adhered to. Although such affidavit as to the defendant John Brien, has been rendered unnecessary by his answer, admitting he is not an inhabitant of the common wealth, that answer does not admit the non-residence of the other defendant, and would not be evidence against him as to this fact if it did.

The court is further of opinion, that it was error to decree a sale of the lands until bond with good security in double the value of the lands had been filed. The law which requires a valuation of the land by discreet commissioners acting under oath, was intended to furnish the court with the evidence by which complete indemnity could be provided for the defendant, in the event of the decree being afterwards set aside. The measure of such indemnity is not the amount of the debt decreed, but the value of the land sold and possibly sacrificed. Though where the debt is small and the property valuable, it is in the power of, and may be proper for, the court to direct the sale of one or more of separate tracts, or of a portion of an entire tract, if a portion' can be sold without material injury to the residue, of which fact the court should be satisfied; yet, in all cases, bond should be required in double the value of the land actually decreed to be sold.

The court is further of opinion, that under the discretion vested by our statute in the courts, as a general rule, real property of value should be sold on a reasonable credit, unless under very peculiar circumstances; and that nothing appearing in the record to take this case out of the general rule, it was error to decree a sale for cash.

*The court is further of opinion, that it was irregular to direct payment of the money to the creditor, and the execution of a deed to the purchaser, in the decree for sale. Before such direction is given, a report of the sale should be made, to enable the parties interested to shew cause against it, and that the court may see that its decree has been properly executed. Payment of the proceeds to the creditor, and the execution of a deed to the purchaser, should be decreed only after the confirmation of the report of sale.

Therefore, decree reversed with costs, and cause remanded &c.  