
    Jones vs. Read.
    Where a security obtains judgment against his principal by motion, such judgment must recite upon its face and assume the existence of all facts necessary to give the court jurisdiction, or it will be void. ’
    Where a judgment by motion was obtained by security against his principal which did not recite that a judgment had been previously obtained by the creditor against the security: Held, that such judgment was void for the want of such recital.
    Where a judgment was obtained against several sureties, no one of them has the right to a separate judgment till he has paid the said judgment, or a portion thereof, and any judgment which he may so obtain, not reciting the payment of the judgment or some portion thereof, is void; though all the sureties are entitled to a joint judgment upon the rendition of the judgment against them.
    Where a judgment by motion of surety against his principal showed that more than three years had elapsed from the time of paying the money till the making of the motion: Held, that where a bill was filed to subject real estate to the satisfaction of such judgment, such objection did not render invalid the judgment, and could only have been used as a defence, if at all, to the original motion, or by writ of error to a superior court, or writ of error comm noSis.
    
    Whore there were various considerations set forth in a deed of conveyance, and such deed of conveyance is attacked for fraud by creditors: Held, that the failure to pirove such considerations furnishes indications of fraud.
    Jones paid money under a judgment obtained against him as the surety of Head in 1834; he obtained judgment by motion against Head in 1833, and filed his bill to subject real estate to sale for the satisfaction of such judgment: Held, that the statute of limitations commenced running in favor of a fraudulent vendee and against Jones from the date of his judgment by motion and not from the time of the payment of the money.
    This bill was filed on the 3d day of October, 1835, in the chancery court at Bolivar, by Edward D. Jones, a citizen of Giles county, against James Read and Alexander Read, citizens of the State of Mississippi, to subject a tract of land, lying in Fayette county, to sale for the satisfaction of certain judgments recovered by Jones against James Read in the county of Giles.
    James Read departed from Giles county about the year 1824, and left the State, leaving Edward D. Jones liable for him in various cases as special bail, as surety on notes and as stay. In 1826 or 1827, he came to the county of Fayette, in this State, and took possession of a tract of land called the -“John Long tract,” containing one thousand and ninety-seven acres. He had acquired the equitable title to said land. On the 6th day of February, 1827, James Read conveyed the whole tract to Dr. Thos. Hunt, and took his bond to re-convey some six hundred and ninety acres thereof to Alexander Re’ad, his son, and put Alexander Read in possession, which said Alexander continued to hold till the filing of this bill. On the 11th of December, 1827, this contract was changed and the following "arrangement made: Hunt took James Read’s deed for four hundred and fifty acres of the land and executed his note to him for the sum of one thousand eight hundred dollars, and gave a bond to convey the balance to Alexander Read. At the time of the execution of this contract James Read gave as a reason for the manner in'which the affair had been transacted that there were some old debts which he wished to avoid. On the 3d day of March, 1831, James Read executed to Alexander Read, his. son, a deed, with covenants of general warranty, for the whole tract, acknowledging the receipt of the following considerations:
    1. James Read’s note to Woods, due July, 1821, principal two hundred and sixty-one dollars, interest one hundred and fifty-seven dollars.
    2. James Read’s note to his son for John three hundred dollars, due January, 1825, interest one hundred and twenty-eight dollars.
    . 3. James Read’s notes, three in number for fifty dollars each, to Phil. Clark, interest sixty dollars.
    4. James Read’s-notes, three in number, to James B. Craig-head, for fifty dollars each, interest sixty-three dollars.
    5. James Read’s note to Smith for twenty dollars, interest four dollars and fourteen cents.
    6. James Read’s note to D. Fentress for twenty dollars, interest four dollars and eighty cents.
    7. James Read’s note to Hatly for twenty dollars, interest four dollars and forty cents.
    8. For two years’ services after said Alexander came of age, two hundred dollars.
    9. For seven years maintenance of himself, his wife and grand-child; and furnishing him with a riding-horse at the reduced price of three hundred dollars per annum, making in all the sum of three thousand six hundred and forty-nine dollars thirty-four cents.
    This deed specified that if the suit which Jas. Read had instituted for the recovery oí the legal title for the said land against John Long’s heirs, and which was then pending in the chancery court at Bolivar, should be terminated in his favor, that then and in that event the whole title to said land should be vested in said Alexander Read. It does not appear that any considerable portion of said alleged debts were discharged by said Alexander, or that any assumption of them or other attempt at the settlement of them had been made; nor was there any proof as to the alleged services and maintenance of the family of the vendor of the land.
    On the 5th of the same month Hunt executed a quitclaim deed to Alexander Read and took up the bond Which he had executed to him. J. Read subsequently recovered the whole tract in the supreme court.
    On the 30th November, 1832, Jones recovered a judgment against J. Read in the county court of' Giles in the following words, to wit:
    No 1. “This day came the plaintiff by W; C; Flurnoy, his attorney, and moved the court, now here, for judgment against the defendant for the sum of four hundred and eighty dollars and fifty cents, that sum being the amount of principal, interest and costs of a judgment which John McAnnally recovered jn the circuit court of Giles county on the 11th day of August, 1825; upon an appeal on a scire facias against the plaintiff and Henry M. Newland, as appearance bail for said James Read; and it appearing to the satisfaction of the court that the plaintiff did on the 7th day of February, 1826, pay; as such security, to Lewis H. Brown-, then sheriff of Giles county, the sum of three hundred and forty-two dollars and thirty-four cents, the amount of principal, interest and costs up to that time of an execution which issued from said circuit court upon the judgment on the appeal aforesaid, it is therefore considered by the court that the plaintiff recover of said defendant the sum of three hundred and forty-two dollars and thirty-four cents, together with interest thereon the rate of six per centum per annum from the said 7th day of February, 1826, until this time, which is one hundred and thirty-eight dollars and sixteen cents, making in the aggregate the sum of four hundred and eighty dollars and fifty cents and his costs by him about his suit in this behalf expended.”
    On the 31st of May, 1833, complainant' recovered against said Read a judgment in the county court of Giles in the following words:
    No. 2. “This day came the plaintiffby Field and Topp, his attorneys, and moved the court, now here, for judgment against the defendant for the sum of twenty-five dollars, with interest thereon from the first day of August, 1824, which he on that day paid as the security of said defendant on a note executed by said plaintiff and said defendant to Luns-. ford M. Bramlett; and it not appearing from' the face of the note whether the plaintiff was principal or security therein, a jury was empannelled to try that fact, to wit, Jesse Haskens, &c. who being sworn well and truly to enquire as aforesaid, upon their oaths do say that the plaintiff was the security of said defendant: it is therefore considered by the court that the plaintiff recover of said defendant the sum of twenty-five dollars, with interest thereon from the aforesaid first day of August, 1824, till this time, which is thirteen dollars and twelve and a half cents, making in the whole the sum of thirty-eight dollars and twelve and a half cents, together with the costs of this motion.”
    On the same day he recovered against him in the same court a judgment in the following words, to wit:
    No. 3. “This day came the plaintiffby his attorneys, Topp and Field, and moved the court for judgment against the defendant for the sum of four hundred and seventy-six dollars" and fifty-seven cents, with interest thereon from the 24th of July, 1824, which on that day he paid as the security of said defendant on an execution which issued on a judgment which Parks Baily recovered against said plaintiff and James Rainy, William Ball and Henry M. Newland, in the circuit- court of Giles county on the 16th day of August,-1823, for the sum of eight hundred and forty-seven dollars and fifty cents and costs; and it appearing to the satisfaction of - the court, on the inspection of the record, that said judgment was rendered against said plaintiff and Jas. Rainy, William Ball and Henry M. Newland in consequence of their undertaking as special bail for said defendant, it is therefore considered by the court that the plaintiff recover of the defendant the sum of four hundred, and seventy-six dollars and fifty cents, with interest thereupon from the 24th day of July, 1824, till this time, which is two hundred and forty dollars and fifteen cents, making in the whole the sum of seven hundred and sixteen dollars and seventy-two cents, together with the costs of this motion.”
    On the 28th day of February, 1828, in the county court of Giles county, complainant recovered against said Read; a judgment in the following words:
    No. 4. “This the 28th of February, 1828, came the plaintiff by his attorney, W. C. Flurnoy, and moved the court for judgment against the defendant for the sum of nineteen dob. lars and ninety-six cents, with interest thereupon from the 1st day of February, 1827, which he on that day paid as the security of said defendant, it being one-half the amount of an execution which issued on a judgment which Parks Bab ly recovered against said James Read, Henry M. Newland and Edward U. Jones, his securities, in the circuit court of Giles county; and the court being fully satisfied, from an inspection of the record, that said plaintiff paid said sum of money as the security of said defendant, it is therefore considered by the court that the plaintiff recover of the defendant the aforesaid sum of nineteen dollars and ninety-six cents, with legal interest thereupon from the first day of February», 1827, till paid, together with the costs of this motion. No execution having been issued on this judgment for more than a year and a day it was revived by scire facias on the 27th February, 1834.”
    On the 1st day of June, 1833, in the county court of Giles county, complainant recovered judgment against the defend-, ant in the following words:
    No. 5. “This day came the plaintiff by Flurnoy and Rivers, his attorneys, and moved the court for judgment against the defendant for the sum of twenty-five dollars, with interest from the 3d August, 1824, which plaintiff on that day paid as the security of said defendant tp Daniel Puryer, then a constable of Giles, on a judgment rendered by Thomas Marks, a justice of the peace for Giles county, against said defendant, and plaintiff as his security; also for the sum of thirty dollars and fifty cents, with interest from the 7th day of May, 1824, which he on that day paid for said defendant to Thomas B. Haynie, then a constable of Giles county, on a j udgment that William Ball recovered against James Head on the 18th November, 1823, and which was stayed by said plaintiff; and it appearing to the satisfaction of the court, upon the inspection of the receipts of said Daniel Puryer and Thomas B. Haynie, then constables as aforesaid, that said plaintiff was the security and stay of said defendant, it is therefore considered by the court that plaintiff recover of said defendant the sum of twenty-five dollars, with interest from the 3d day of August, 1824, till this time, which is thirteen dollars and twelve and a half cents, and also the sum of thirty dollars and fifty cents, with interest from the 7th day of May, 1824, till this time, which is seventeen dollars. and thirty-eight cents, making in the whole the sum of eighty-six dollars and one half cent, together with the cost of this motion.”
    These judgments remained unreversed and unsatisfied, and after the issuance of various writs thereupon, the land in controversy was levied on, and sold on the 17th of February, 1834, by Joel L. Jones, the sheriff of Fayette county, to Edward Jones, for the sum of forty-three dollars, by virtue of writs of venditioni exponas issued upon judgments Nos. 1,2, 3 and 5. It was also exposed to sale on a writ of venditioni exponas on the 18th December, 1834, on judgment No. 4, and sold to~Jones for the sum of ten dollars and ninety-seven cents..
    On the 3d of October, 1835, Jones filed his bill setting forth' his judgments against James Read, and charging that the pretended title of Alexander was made in fraud of creditors, and praying that it might be declared void, and that the land be sold for the satisfaction of the judgments.
    James and Alexander Read filed their answer, in which they alleged ignorance of the joint claims and judgments of Jones, and prayed for proof thereof, and denied all fraud in the conveyance of the property to Alexander Read. To.this answer a replication was filed by complainant.
    The cause came on for final hearing at the November term, 1838, before chancellor Brown, who declared the deed of the 5th of March, 1831, from James Read to his son Alexander, made in fraud of creditors and void, and that complainant’s judgments Nos. 1, 3 and 4, be satisfied by the sale of so much of said land conveyed to James Read as was necessary for that purpose, and that the clerk and master take an account of the amount due Jones from Read on said judgments with interest and costs. The clerk reported the aggregate amount due to be one thousand five hundred and ninety-four dollars seventy-four and a half cents, and costs fourteen dollars. The chancellor confirmed this report and decreed accordingly. The defendants appealed.
    
      C. Jones, for complainant.
    1. The judgments are valid. 8 Yerg. Rep. 420, 432: 10 Yerg. 310, WENairy vs- East-land.
    
    2. Was the conveyance fraudulent? The deed itself from J. to A. Read, from the suspicious terms of the considerations expressed upon its face and unsupported by proof, is prima facie evidence of fraud. It is not shown that any adequate consideration was paid, and in the absence of other proof fraud will attach. See 6 Rand. 618, where a conveyance from a father, who was in debt, to his son without any valuable consideration, is declared to be grossly fraudulent, and decreed to be set aside at the suit of creditors who obtained their decrees long'after the execution of the deed. A transfer of property to a child by a man in failing circumstances, though there be no execution nor judgment against him, will be held fraudulent unless the child can prove the actual payment of a fair and full consideration. 1 Hay. 396. Where a father, being indebted, conveyed all his estate to his son, resident with him, and changing places with him become the -boarder and the son the landlord, the conveyance was held fraudulent and void as to creditors. 4 Mon. 584. A conveyance of property to a child without valuable consideration by one indebted at the time is void against creditors. 1 Atkins, 15: 1 Vez. 1. Such conveyance is at least prima facie evidence of fraud, and onus lies on defendant. 3 John. Ch. Rep. 450: 2 John. Ch. Rep. 35, 45, 46. Conveyances of property with fraudulent intent pass no estate, and are void against persons intended to be defrauded. Rob. Fraud. Con. 591-6. The relation between the grantor and the grantee constitutes a strong circumstance of suspioion. Rob. Fraud. Con. 198-9: 4 John. Rep. 581-2: 4 John. Rep. 593. Chancery lends its aid to judgment creditors. 2 John. Ch. Rep. 283. Chancery has power to assist judgment and execution creditors. 20 John. Ch. Rep. 554.
    3. The records filed all show that the executions, based upon judgments, were levied within seven years, and according to the principle settled in Reeves vs. Doughterty, 7 Yer. this complainant can recover,
    
      D. Fentress and A. Miller, for defendants,
    contended: 1. That the judgments of the complainant were void. 7 Yer-ger, 365.
    2. That the defendant, Alexander Read, was protected by the statute of limitations. Cocke and Jack vs. M’Ginnis, M. and Yer. 361: Porter's lessee vs. Cocke, Peck, 41: Hay ter and Reeves vs. Dougherty, 7 Yer. 222: 10 Yer. 521-59.
   Green, J.

delivered the opinion of the court.

The first question to be considered is, whether the judgments upon which this bill is founded are good and valid or are void? All these judgments (five in number) were obtained on motion for monies paid by the complainant as surety for James Read. In a case of this sort the judgment must recite upon its face and assume the existence of all the facts which are necessary to give the court jurisdiction. 3 Yerger, 361: 8 Yerger, 434. When this is done the judgment is valid and cannot be affected when attacked in this collateral way by the fact that the conclusions of the court were not warranted by the proof. Judging by these principles the judgment, No. 1, for four hundred and eighty dollars and fifty cents, l-endered on the 30th of November, 1832, is good and valid. The judgment, No. 2, for twenty-five dollars, is void, because it is not stated that any judgment had been rendered against Jones as the security of James Read. The judgment, No. 3, for seven hundred and sixteen dollars and seventy-two cents, rendered in the Giles county court 31st of May, 1833, does not assume the existence of the facts necessary to give the court jurisdiction. It states that Jones moved for a judgment for four hundred and seventy-six dollars and fifty-one cents, with interest from the 24th of July, 1824, which on that day he paid as security for the defendant, but it does not state that the fact so appeared to the court, but it states that it appeared that a judgment was rendered against the plaintift' and several others, asbairof James Read, for the sum of eight hundred and forty-seven dollars and fifty cents; to have authorized a-judgment in favor of the plaintiff alone against Read it was indispensable that the sum he had paid as part satisfaction of the said judgment against Read’s bail should have been proved, and the judgment should show on its face that the fact did so appear. It is true the rendition of the judgment against the bail would have authorized a judgment in their favor against Read, the principal, but in that case the judgment could only have been taken for the entire amount of the judgment against them and in the name of all the bail jointly. But this judgment is in the name of Jones only, and for monies he suggests in his motion (but which the court does not say so appeared) was paid by him. We think, therefore, this judgment is void. The judgment, No. 4, rendered the 28th of February, 1828, for nineteen dollars and ninety-six cents is regular, but the judgment, No. 5, rendered 1st June, 1833, for eighty-six dollars, is liable to the same objections which are taken to No. 3. It is not assumed as a fact appearing to the court that the plaintiff had paid this money as security for defendant.

Second. It is insisted that the judgments show upon their face that the monies for which they were rendered were paid by the plaintiff for the defendant more than three years before the motions were made, and that the statute of limitations was a good defence, and that it may now be set up against this bill, which seeks a satisfaction of those judgments. Without expressing any opinion as to the application of the statute of limitations to a suit by motion, it is sufficient to observe that we cannot in this collateral way enquire into the regularity of judgments, and whether they might not have been defeated by the introduction of other evidence than that which was before the court, or by insisting on other defences, or whether the facts the court assumed as existing were sufficiently proved by the testimony before it. Our only enquiry is, are they valid or are they void? Although they may be irregular and liable to be reversed on a writ of error to a superior- court, or upon the introduction of new proof, or different defences on a writ of error coram nobis in the same court in which they were rendered, still they may be executed either by process issuing upon 1hem or by a bill in equity auxiliary thereto.

The third question is, whether the conveyance made by James Read to Hunt for the benefit of his son, and the one made by himself to his son, are fraudulent. We think there is no question but that these deeds were made in fraud of creditors. That the deed to Hunt was so made is manifest from the fact, that if it were fair and Alexander Read had actually paid for the land, there is no reason why the deed should not have been made directly to him. But it was conveyed by James Read to Hunt, and a bond was taken from Hunt to convey to Alexander Read, which he did in compliance therewith in 1831. It does not appear that any consideration was paid by Alexander to James Read, and this circuity of conveyance was adopted doubtless in the expectation that the title bond would pass from Hunt to Alexander purified of the fraud; for Hunt proves that when the conveyance was made to him James Read told him that his object was to avoid the payment of some old debts. This express declaration does but accord with all the other parts of the transaction, every circumstance of which is a badge of fraud. The subsequent deed from James to Alexander Read does not help the transaction; it was but a continuation of the original design, and when taken in connexion with the previous acts of the. parties, contains fuller evidence of fraud. The display of the various considerations which are stated in this deed was a shallow contrivance to keep off creditors, and shows á consciousness that the transaction was surrounded by suspicion and needed something of this sort to show its fairness.. Nor could the original contract, tainted as it originally was with fraud, be purified by the payment of ah honést consideration accompanied by a new conveyance. But we are warranted in the conclusion that these considerations, which are set out in this deed, were not réálly and in good faith paid. If they were, the defendants, circumstanced as the case is, should have proved the payments as alleged. This has not been done, and we áte authorized to conclude could not have been done. We háve no doubt, therefore, of the fraudulent intent of these defendants in this transaction, and consequently the deeds under which Alexander Read claims title to this land 'are void as to the creditors of James Read.

The fourth question for consideration is, whether Alexam der Read is protected by the second section of the statute of limitations of 1819, ch. 28. And the solution of this question depends upon the construction to be given to that act as to the time when the statute commences running, whether from the date of the fraudulent deed from James Read to Hunt or from the date Of the complainant’s judgments against Read. Thé aót provides, “that no person or persons, or their Heirs, shall have, sue or maintain any action or suit either in law or equity for any lands, tenements and hereditaments but within seven years next after his, her or their right to commence, have or maintain such suit shall, have come, fallen or accrued.” The only enquiry then is;' when did the complainant’s right to commence this suit crue? Certainly not .until after the relation of debtor an] creditor had been produced between him and James Ret by the rendition of the judgments; until then he was not creditor in the sense that would authorize him to question* this conveyance. The rendition of the judgments created a lien upon the defendants’ lands, and authorized the complainant to come into equity to set aside this fraudulent deed and subject the land to sale; until then he could have maintained no bill for such a purpose, and therefore, by the express words of the act, his right to commence this suit did not accrue before that time. The argument of the counsel for the complainant, that from the date of the fraudulent deed to Hunt the statute commenced running, gives to this second section an operation so different from the plain sense of its language that it cannot be countenanced for a moment. If that were so, the declaration of the act that a party shall sue within seven years after his right of action accrues, would be unintelligible and without meaning. The case of Reeves and Hayter vs. Dougherty and Ewing, 7 Yerg. Rep. 222, which is relied on to support this position, does not sustain the argument. That was a case where the negroes, to subject which the bill was brought, were in the possession of Mrs. Ewing more than three years after the judgment and execution at law, and consequently more than three years after the right to file the bill accrued. The only question, therefore, was whether the statute would run in favor of a possession, and operate to protect a title acquired by fraud. The court decided in accordance with all the modern authorities that it would. It is true one member of the court, in delivering his opinion, indicates that the statute would run in favor of the possession of a slave from the time possession should be taken, although no right of action existed in favor of any one until long after. But this was a loose dictum of one judge only upon a question not existing in the case, and clearly against the plain language of the act of 1715, ch. 27, sec. 5. It has always been holden under that act that possession of negroes belonging to an intestate’s estate before administration be taken does not operate to confer a title on the possessor. And why? Because there was no person who had a right to sue. Why then should possession operate in favor of the possessor and bar the right of creditors before they have a right to sue? There can be no reason for the operation of the act in the one case which does not exist in the other. We conclude, therefore, that the statute of limita- • tions is no bar to the complainant’s right to a decree in this. case.

The fifth and only remaining question is as to the extent of the relief. There can be no decree for the complainant except for the judgment No. 1 rendered 30th of November, 1832, for four hundred and eighty dollars and fifty cents. This judgment is regular and valid, and gave the complainant a right to file this bill. Seven years did not elapse from the date of its rendition to the 3d of October, 1835, the time this suit was commenced. The judgments Nos. 2, 3 and 5 are void for want of the assumption by the court of all those facts upon which its jurisdiction depended. The judgment No. 4 was rendered 28th February, 1828, and as more than seven years elapsed before the bill was filed, the right to the relief it seeks for the amount of that judgment is barred. The decree will therefore be reformed and rendered to the extent indicated.  