
    *Schultz & als. v. Hansbrough & als.
    September Term, 1880,
    Staunton.
    1. Conveyance of Lands by Debtor after «Fudgrment — Order of Liability. — By deed bearing date the 15th of October, 1863, Mrs. G, in consideration of $10,000, for which S executes his bond to G, conveys a tract of land to S reserving in the deed a vendor’s lien. G marries H, and H obtains from S a new bond for the principal and interest, and in October, 1868, recovers a judgment against S for the amount. S, who owned a number of tracts of land, after the judgment, conveys the lands to different purchasers; and among them by deed dated 22d of May, 1877, S conveyed to R the land purchased of G; and R in this deed bound himself to pay the debt of S to G. By deed dated May 3, 1878, S conveyed all his lands including the land bought of G to I/- in trust to secure a number of his creditors stating their debts as about a certain sum. In August, 1878, H files his bill to subject the lands owned by S at the date of his judgment or after-wards acquired to satisfy his judgment. Held: The land conveyed by G to S, and by him conveyed to R is to be first sold to satisfy the judgment of EC.
    2. Oominissioner’s Report — Failure to Include All Delíts — Hecoinmission.—The commissioner who was directed to take an account of the debts of S and their priorities, and of the lands of S and to whom and when aliened, after stating certain judgments, and debts secured by specific liens, reports that the debts secured oy the deed to T were not presented before him, and he does not report them. Held: The report should be recommitted to the commissioner to take an account of said debts; and it was error to make a decree for the sale of the lands of S before this account was taken.
    3.Bill foi” Sale of Debtor’s Land — Equity Procedure. — For the principles upon which a court of equity proceeds upon a bill filed for the sale of a debtors’ lands, for the payment of his debts, see the opinion of Burks, J.
    Same — Specific Interrogatories— Force and Effect. — The answer of a defendant to specific interrogatories in a bill, are evidence for him; and its statements must be taken as against the plaintiff as true unless overcome by the requisite proof.
    This was a suit in equity in the circuit court of Botetourt county, brought in August, 1878, by Hiram Hansbrough' against Joseph Shultz and others to subject the real estate of Shultz and George S. Penn, to satisfy a judgment for $11,717.41, with interest, which he had recovered against them, in October, 1868. The bill and amended bill sets out a number of parcels of land which Shultz owned at the date of the judgment or after-wards acquired, ail of which he had subsequently conveyed by three deeds in trust to secure creditors. And he calls upon Shultz to answer and say: 1st. What real estate in the said county he owned at the commencement of the October term. 1868, of this court 3d. What real estate he has acquired since the commencement of the said term of the court. 3d. What portions of the real estate owned by him in said county at and since the commencement of the said term of the court he has aliened. 4th. To whom, when, how and for what consideration has he aliened any portion thereof.
    The first two of these deeds was each to secure a single debt. By the third which bore date the 3d of May, 1878, Shultz conveyed to Lewis Linkenhoker, a number of tracts and lots of land, to secure a number of creditors, stating that he is indebted to the said creditors in various amounts approximately stated as follows, viz: To William Jollifife in the sum of $5,303.95 with interest thereon from the 14th of October, 1876, &c., stating most of the debts as about a certain sum.
    Among the tracts of land conveyed in the deed is one described as containing between three and four thousand acres, being the same tract conveyed to Shultz *by Ann Gorgas; and by Shultz conveyed to Harrison Robertson for the joint benefit of Robertson, Shultz and two others. By deed bearing date 15th of October, 1863, Ann Gorgas in consideration of $500 in hand paid, and of the further sum of $10,000, for which the said Shultz has executed his bond payable in two years after the termination of the war between the United States and the Confederate States, with interest thereon from the date of the deed, payable annually, conveyed to him this tract of land setting it out by metes and bounds; and in the conclusion reserving the vendor’s lien on the lands as a security for the payment of the said $10,000. And by deed dated the 22d of May, 1877, between Shultz and Harrison Robertson, reciting the purchase of the land from Mrs. Gorgas, and the terms of the purchase, and that the principal of the bond was yet due, and constituted a lien on the land: and that Robertson has assumed the payment of said bond for $10,000 and all interest due or which may become due upon it, in discharge of said lien, in consideration of the said sum of $10,000, and interest to be paid by the said Robertson the said Shultz conveys to him the said tract of land.
    Robertson answered the bill admitting the judgment was a lien on the lands of Shultz and that the land conveyed to him was ultimately liable for the payment of the plaintiffs’ debt; but insisting that it was not all due, he having paid to the plaintiff sums amounting to $2,400, and as he is informed and believes, Shultz had previous to his conveyance to him paid other large sums of money on said debt.
    On the 17th of February, in vacation, the judge of the court taking the bill for confessed as to all the parties except Robertson and McCarty, the latter being one of the creditors upon whom process was not served, made an order of account as follows:
    '¿“Whereupon, on motion of plaintiff, it is by me adjudged, ordered and decreed that this cause be referred to Wm. B.~ Simmons, Esq., one of the master commissioners of this court, who is hereby directed to take an account of the following matters, to-wif:
    “1st. What lands the defendant, Joseph H. Shultz, owned at the date of the commencement of the October, 1868, term of this court, whereon the judgment of the complainant was a lien.
    “2d. What lands the said Shultz has owned since the date of the said commencement, whereon the said judgment was a lien.
    “3d. What parts, if any, of said lands have been aliened since the commencement of the said term.
    “4th. To whom, when and how, and for what consideration such alienations were made, stating them in the order of their priority respectively.
    “5th. What real estate was owned by the defendant, Penn, at and since the commencement of the said term, whereon the said judgment was a lien; and what, if any, alienation thereof, or of any portion thereof, has since been made.
    “6th. What is the annual value of the said lands of the said Shultz and of the said Penn respectively.
    “7th. What liens exist on the lands of the said Shultz, stating the date, amount, and to. whom belonging, of each lien respectively.
    “8th. What liens exist on the lands of the said defendant, Penn, stating, the date, amount, and to whom belonging, of each lien respectively.
    “9th. Ascertain and state and report to this court, on the first day of its next term, the aforesaid and all other matters which may be required by any of the parties, or which may be deemed pertinent by himself.
    “But it is ordered by me that before taking the said account, the said master corn-missioner shall publish *once a week for four successive weeks, in some convenient newspaper published in the county of Botetourt, notice of the time and place of taking the said account, and such publication shall be equivalent to personal service of such notice on the parties or any of them.”
    The commissioner returned his report, in which he states, 1st. The lands owned’ by Shultz at the date of the plaintiffs’ judgment, dividing them into six different parcels, as conveyed to Shultz by different persons, estimating the value of each parcel and making the valuation of the whole $24,722. Among these is the Gorgas land; 2d. The land conveyed by Shultz since the date of the judgment, the person to whom conveyed, and the date of the conveyance; 3d. The annual rental value of the land as $930; 4th. The liens upon the lands by judgment. The first of these is that of the plaintiff, which, after allowing payments upon it, he states as due on 15th of April, 1879, principal and interest $10,716.80. He states six other judgments, which he says are — except one of them — secured, by deed of trust/ and one bond which with interest to April 15th, 1879, amounts to $1,219.72, also secured by deed of trust. The whole amount of debts reported as secured by liens is $16,913.50. And he concludes his statement by saying — There are many other debts mentioned in the several deeds of trust filed with complainants’ bill, but they, the several debts, have not been set up’ with their proofs before your commissioner. See three trust deeds filed. And he states the amount of debts secured by the. deed to Linkenhoker at $20,202.95, from which he deducts $4,980, and makes all the debts $35,381.73.
    William Jolliffe, who is one of the creditors named in the deed to Linkenhoker, and a defendant in the cause, filed a number of exceptions to the report, of which the first and the third are as follows:
    *1. That the master although by the . vacation decree of 17th February, 1879, . he is specially directed to take an account of “what liens.exist on the lands of defendant Shultz, stating their date, amount, and to whom belonging, of each lien respectively,” has taken onlv a partial account of said liens, and has failed to report as to a number of such liens, the existence of which was known to him from papers in the cause, and especially that he has failed to make any report as to the large amount due to this exceptant, as shown by the deed. of trust to Lewis Linkenhoker, filed as an exhibit with complainants’ bill. (See the statement of the master at the conclusion of his report.)
    3. That the master has utterly failed to en-quire as to and show the amounts due to the respective creditors mentioned in the several deeds of trust, whether any of them have been paid in whole or in part, and what is their relative priority, without which this exceptant could not, if he desired to do so. bid intelligently on any of the property sought to be sold.
    After the report had been returned to the court Shultz filed his answer in the cause. He admits the plaintiffs’ judgment, and that he was the owner of the land mentioned in the bill. He says further — the amount due by said judgment to the plaintiff was the purchase and interest thereon of a tract of mountain land containing about four thousand acres in the county of Botetourt purchased by defendant in the year 1863 from Mrs. Ann Gorgas, then a widow, but subsequently married to the plaintiff, the price being $10,000; and the additional sum of $1,747.41 included in the judgment, being the interest which had accrued thereon up to the 5th of October, 1867; that plaintiff after his marriage with Mrs. Gorgas, insisted that respondent should give a new bond payable to himself, and including in it the accumulated interest which was *due, and on this bond said judgment was rendered. He states the agreement with and conveyance to Robertson; and he says that all the foregoing facts, agreements and arrangements were made known to the plaintiff, and met his full concurrence and approbation.
    The cause came on to be heard on the 4th of June, 1879, when after correcting some small admitted errors as to the credits upon the plaintiffs’ debts, proceeded: “As to the other exceptions the court considers that the defendant. Jolliffe, is not aggrieved by anything in said report contained so far as the same states the lien of the complainant’s judgment to be the foremost of all the liens stated on the real estate of the said Shultz, and shows the right of the complainant to have said lien satisfied by a sale of the said real estate, or Of enough of it for that purpose; and that the account of liens, as reported, is sufficient to indicate the order of priority among the several liens and classes of liens existing on the said real estate, taking notice of the several judgments enumerated and stated, and also of the three several deeds of trust executed by the defendant Shultz to trustees Johnston and Linkenhoker, which are made part of bill, and are mentioned and stated according to their respective dates in the recapitulations of liens in the said report, which report, amended as aforesaid, the court doth adjudge, order and decree to be confirmed; yet the defendants, or such of them as may desire it, have leave to have said report recommitted to the said master, in order that he may, after having given notice as specified in the former decree, take evidence as to any payment, release or satisfaction of any of the judgments in the report mentioned, or of any of the debts in the several deeds of trust set forth, and ascertain, state and report any other matters which the ’^parties, or their counsel or any of them, may require, or as may be deemed pertinent by the master.
    “And the court doth consider that the judgment aforesaid of the complainant is a lien on all of the real estate which was owned by the defendant Shultz at its date, and on all which he has since acquired, as set forth in the report, and is also a lien on all of the real estate owned by the defendant Penn at the date of the judgment, which real estate is also described in the report; but it appearing from the report that several of the tracts of the land of the defendant Shultz have been, at different times (as set forth in the report), aliened by said Shultz, the court considers that the complainant is entitled to subject to sale, for the satisfaction of his said judgment, the real estate aforesaid, only in the inverse order of the alienations thereof, subjecting first the laud last aliened. And it appearing to the court, from the report, that the rents and profits of the real estate aforesaid of the defendant Shultz will not, in the period of five years, satisfy the costs of this suit — the expenses of the sale, and principal, interest and costs of the complainant’s judgment — . the court dpth adjudge, order and decree that unless within the period of sixty days from (he rising of this court, the said Shulfz, or some one for him. shall pay unto the complainant, or his attorney, G. W. Hans-brougli, the costs of this suit, and the principal,. interest and costs of the complainant’s said judgment, then L. C. Hansbrough, Esq., and Lewis Linkenhoker, Esq., (who are hereby appointed special commissioners for the purpose, either one of whom may execute this decree), shall, after first advertising the time, place and terms of sale for four successive weeks next before the day of sale in some newspaper published in the county of Botetourt, and in the city of Lynchburg, and in the city of Richmond, as the commissioners may deem judicious, proceed, in *front of the ‘Botetourt House,’ in the town of Buchanan in said county, or on the premises, to sell at public auction to the highest bidder so much of the real estate owned by the defendant Shultz, at the date of the said judgment of the complainant, and of the real estate acquired by the defendant Shultz since the date of the said judgment, and since then aliened by him, in the inverse order of the several alienations thereof, selling first the lands last aliened, as.may be sufficient to pay the costs of this suit, the expenses of the sale and the principal, interests and costs of the complainant’s, said judgment, on the terms following, lo-wit:.for cash enough to pay the costs of this suit and all of the expenses incident to the sale, and as to the balance of the purchase money, on a credit of one, two and three years with interest from the day of sale, taking from the purchasers bonds with approved personal security for the deferred installments of the purchase money, and reserving title until the payment of the whole, and right to resell at the risk and loss of the purchaser in case of non-compliance with the terms of the sale by the purchaser. And it is further adjudged, ordered and decreed that if in the judgment of the commissioners, or of either of them, it would be advantageous to those interested in the sales that the said lands — or any of them of defendant. Shultz, be surveyed and platted before the day of sale, they are authorized to have such surveys and plats thereof made and defrayed out of the proceeds of the sale. And they are also authorized to sell the said real estate in separate parcels or lots as they (or either of them) may deem advantageous to those interested.
    “But it is further adjudged, ordered and decreed that before making sale as aforesaid, the said commissioners (or the one acting) shall, in the clerk’s office of this court, before the clerk thereof, enter into bond *in the penalty of $600, with approved security, _ payable to the Commonwealth of Virginia, and conditioned according to law.
    “It appearing to the court from the bill and proceedings of this cause that the defendant, George S. Penn, is only a surety of and for the defendant, Shultz, in and upon the said judgment of the complainant, no decree for the sale of any part of the said surety’s . real estate is now entered, on the supposition that the real estate of the principal, will suffice to pay the said judgment; but in the event that supposition should prove erroneous, then the right is reserved to the complainant to' subject tó sale so much of the surety’s real estate as may be necessary to satisfy any portion of the judgment which may remain unpaid.”
    And thereupon Shultz, Jolliffe and Link-enhoker applied to this court for an appeal and supersedeas; which was allowed.
    Ed. Pendleton, for the appellants.
    Hansbrough & Hansbrough, for 'the ap-pellees.
    
      
       Ednity — Liens upon Real Estate — Priority. — In Pitts v. Spotts & Gibson, 86 Va. 71, the court said; “In Schultz v. Hansbrough, 33 Gratt. 567, Judge Burks, speaking for the court, said: ‘It is a rule in equity, said to be well established in this country, that where one has a lien upon two funds, and another a posterior Hen upon only one of them, 'he former will be compelled first to exhaust the subject of his exclusive lien, and will be permitted to resort to the other only for the deficiency’; though the rule,” he added, “is generally applied only in cases where to compel a resort to the single charged fund would not be productive of additional risk or injury to the double creditor.”
      Same — Lien Reserved on Real Estate-Vendor’s Rights. — -The vendor of land retained a lien, when he sold, for the purchase money, one of the terms of the contract being the assumption by the purchaser of a debt of the vendor in part payment of the purchase money. Held, that the vendor has the right to require the land to be subjected to the lien for his exoneration. See Rhea v. Preston, 75 Va. 757, citing principal case.
    
    
      
       Saine--Enforcement of Liens on Real Property — Sales.—Decree to sell lands to enforce liens, without first, by account taken, ascertaining amounts and priorities of all encumbrances thereon, is premature and erroneous. Hoge v. Junkin, Com’r, 79 Va. 220; Muller’s Adtn’r v. Stone, 84 Va. 834; Alexander v. Howe, 85 Va. 198; Dillard v. Krise, 86 Va. 410; Fidelity Toan, &c., Co. v. Dennis, 93 Va. 507; Horton v. Bond, 28 Gratt. 815; Cole v. Mc-Rae, 6 Rand. 644; Hartman v. 3?vans, 38 W. Va. 679.
    
    
      
       Same — Answer to Bill — Effect.—See 4 Min. Inst. (2nd I?d.) 1325.
    
   BURKS, J.,

delivered the opinion of the court.

If a trustee in pais, with power to make sale of real estate for the payment of debts, attempts to make such sale while there is a cloud resting on the title to the property, or there is any. doubt or uncertainty as to the debts secured or the amounts thereof, or a dispute or conflict among the creditors as to their respective claims, a court of equity, on a bill filed by the debtor, secured creditor, subsequent encumbrancer, or other person having an interest, will restrain the trustee until these impediments to a fair sale have by its aid been removed as far as it is practicable to do so. This *rule has been affirmed in numerous cases decided by this court. See Rossett v. Fisher, 11 Gratt. 492, 499, and cases there cited; also. Lane v. Tidball, Va. Rep. (Gilmer) 130.

And so, if aid of-the court is invoked in the first instance to enforce encumbrances on lands, a decree for sale without first ascertaining, settling and determining what encumbrances are chargeable on the property, the amounts thereof respectively, and the order in which they are so chargeable, would be premature and erroneous. Such has been the uniform course of decision by this court, commencing at an early period. Many of the adjudged cases are referred to in the opinion in Horton & als. v. Bond, 28 Gratt. 815, 822. See also Simmons v. Lyles & als., 27 Gratt. 922; Kendrick & als. v. Whitney & als., 28 Gratt. 646, 655.

The principle on which the decisions in both classes of the cases are founded, is, that a sale without first removing a cloud from the title and adjusting and settling rights in dispute, and without previously ascertaining and determining ' the liens and encumbrances, the amounts, and priorities, tends to a sacrifice of the property — as to creditors, by discouraging them from bidding, when they probably would have bid, for the protection of their own interests, if the rights of all parties had been previously ascertained and fixed with reasonable certainty. Cole's adm’r v. McRae, 6 Rand. 644.

In the case before us. the bill was filed by a creditor to enforce the lien of his judgment against lands aliened after the recovery and docketing of the judgment, and, by the amended and supplemental bill, the judgment debtors, the alienees and such creditors as were secured by deeds of trust, were made parties defendants. The bill, if in form not a creditor’s bill in a strict sense, would seem to be so in substance, and, at all events, *became such under the order which was entered directing accounts of the lands aliened and of all liens and encumbrances thereon. Simmons v. Lyles & als., supra.

The lands consisted of numerous tracts or parcels conveyed to various persons at divers times, .and the encumbrances were by sundry judgments rendered, and several deeds of trust executed at different periods. The commissioner in his report sets out the lands, the 'names of the alienees and dates of the deeds of conveyance, and also the several judgments, dates and amounts, and then remarks, that “there are many other debts mentioned in the several deeds of trust filed with the complainant’s bill, but they the several debts have not been set up with their proof before your commissioner. See the 3 trust deeds filed.” He then makes a summary or recapitulation of the liens and their order, and, after stating the several judgments, says, that “the last six judgments, except that of.W. A. Lindsay, are secured by trust deed May 3d, 1878, S. to L. (Shultz to. Linkenhoker). which see.”

Then follows what he calls the “8th lien” described as “the debts secured by deed of trust from Shultz to Linkenhoker, dated 3rd May, 1878, with the various amounts aggregating $20,292.95.” From this sum he deducts $4,980, showing a remainder of $15,-312.95. It is impossible to ascertain with certainty from any thing on the face of the report on what account this deduction was made, but -it is supposed that it was for the amount of the judgments included in the deed of trust, though calculation would seem to'show a material variance between the sum of the judgments and'the amount deducted. This aggregate of the debts secured by the deed of trust is evidently made up of the principal sums mentioned in the deed, without the addition of interest. Now, looking to the deed to ascertain what debts are secured, we find great uncertainty. *They are numerous and variously evidenced by judgments, bonds, notes and open accounts. The deed professes to state the amounts “approximately” only. In the enumeration, the debts are generally described as “about” the sum stated, and in most instances no dates are given, so as to show when the debts were contracted or when they are payable. It was just this kind of uncertainty, that, in the opinion o’f this court, in Wilkins v. Gordon & wife, 11 Leigh 547, rendered it improper in a trustee to make sale; and it was one of the objects of the order of reference in the present case to remove this uncertainty. The commissioner should have enquired into each one of these debts and ascertained and reported definitely whether it was owing, and if so, the amount of it. principal and interest. In this way only could he have furnished the necessary information to the court and the parties. As to these debts (the judgments excepted) the report gave no material aid in their ascertainment, and as to them the en-quiry as made by the commissioner, had as well not been ordered. The report is in other respects defective and imperfect. It is not necessary to go further into particulars. The decree confirming it carries on its face evidence that it ought not to have been confirmed: for. notwithstanding the confirmation, it provides in terms, “that the defendants or such of them as may desire it, have leave to have said report recommitted to the said master, in order that may after having given notice as specified in the former decree, take evidence as to any payment, release or satisfaction of any of the judgments in the report mentioned, or of any of the debts in the several deeds of trust set forth, and ascertain, state and report any other matters which the parties, or their counsel, or any of them, may require, or as may be deemed pertinent to the master.” Instead of confirming the ’’’report and ordering a sale, the circuit court should have sustained the exceptions of the appellant and recommitted the report.

But if a decree confirming the report and ordering a sale had been proper, still the decree entered is erroneous.

It appears by the answer of Shultz, that the judgment of Hansbrough (complainant below) was for a debt originally owing by Shultz to Ann S. Gorgas. with whom Hans-brough, after the debt was contracted, intermarried, and after marriage he took the bond of Shultz for the debt payable to himself, and recovered judgment upon it. It was contracted for the purchase of a tract of land known in the proceedings as the “retreat” property, sold by Mrs. Gorgas to Shultz and conveyed to him by deed on the face of which a lien was retained for the deferred installment of the purchase money, which was the greater part. This deed is exhibited with the answer and shows the retention of the lien. After the recovery of the judgment and before the deeds of trust which have been referred to were given, this land was sold by Shultz to the appellee Harrison Robertson, the latter undertaking to pay the Gorgas debt, principal and interest, in discharge of the lien retained on the land by Mrs. Gorgas. This undertaking of Robertson is recited in the deed conveying the land from Shultz to him. The statements so far of the answer of Shultz are responsive to the bill and especially to the fourth special interrogatory therein propounded to him concerning the real estate aliened, requiring him to disclose “to whom, when and how and for what considerations, he aliened any portions thereof.”

When a bill calls for a material disclosure from the defendant on oath and the defendant in his answer on oath makes such disclosure fully and unequivocally, *the answer to the extent of such disclosure, is as much responsive as when it expressly and positively denies material allegations in the bill, which the defendant is called upon to answer; and in either case, it is an elementary principle in equity jurisprudence, that the answer, as far as it is responsive, is evidence for the respondent, and its statements so far must be taken againii the complainant as true unless overcome by the requisite proof. Fant v. Miller & Mayhew, 17 Gratt. 187; Shurtz & als. v. Johnson & als., 28 Gratt. 657, 663.

There is no evidence controverting these statements of the answer. On the contrary, they are to a certain extent corroborated by the deeds already referred to, and a copy of the deed to Robertson was exhibited by the complainant and filed with his bill. Mr. Robertson in his answer, does not in express terms refer to the contract with Shultz as set out in the answer of the latter, but he impliedly recognizes it by referring for his title to the deed from Shultz, which on its face sets out Robertson's engagement.

From this proof it appears, thatthe appellee Hansbrough has two securities for his debt; first, a specific lien by virtue of the deed from Gorgas to Shultz on the land subsequently conveyed by the latter to Robertson, and second, a general lien by judgment on that land, and also on all the other lands aliened by Shultz, while the only security held by the appellant Jolliffe and the creditors at large embraced with him in the deed of trust to Linkenhoker of May 3rd, 1878, is by virtue of the last-named deed in which the land previously conveyed to,Robertsonis not included.

It is a rule in equity, said to be well established in this country, that where one has a lien upon two funds and another a posterior lien upon only one of them, the former will be compelled first to exhaust the subject of his exclusive lien, and will be permitted to *resort to the other only for the deficiency; but this rule is generally applied, it seems, only in cases where to compel a resort to the singly charged fund would not be productive of any additional risk, injury or delay to the double creditor. Adams’ Equity (6th Amer. _Ed.) 272 (side page), note 1, and authorities there cited.

This equity, however, has no existence, as against a bona fide purchaser, in favor of a creditor who has no lien on the land sold, unless such equity springs out of some special provision of the contract between the purchaser and the vendor. In the absence of stipulations to the contrary, the purchaser of a clear title has the right to require his vendor to, remove all encumbrances from the land, and this equity is prior and paramount to the equity of any creditor acquiring a subsequent lien on .other lands of the vendor to have the securities marshalled for his relief against the purchaser.

But where the purchaser buys subject to an existing encumbrance, or undertakes to pay it off in satisfaction of the purchase money due his vendor, the case is very different. He thus becomes the principal debtor and as between himself and the vendor at least, he is primarily bound to discharge the encumbrance, and the vendor having a right as against him to require the obligation to'be performed, the subsequent encumbrancer is entitled to stand in the vendor’s shoes and have his equities administered for his relief. Aldrich v. Cooper, 2 Lead. Cas. Eq., Part 1. (4th Ed.), 270, 271, 273, et seq. and cases there cited.

And such is the case before us. Robertson, under his contract with Schultz, is bound to pay the Gorgas debt, now held by Hans-brough. In his relation to.Shultz-, he is the principal debtor and Shultz surety only, and the latter and the creditors who succeed to *his equities, have the right to require the land held by Robertson to be subjected to the satisfaction of tjie lien which rests upon it in exoneration of the lands subsequently aliened by Shultz and encumbered by the deeds of trust. Buchanan v. Clark, 10 Gratt. 164. See also the reasoning of Judge Tucker in Douglass v. Fagg, 8 Leigh 588, 602, 603; notes to Dering v. Earl of Winchelsea, 1 Lead. Cas. Eq.. Part I. (4th Amer. Ed.), 147. Hansbrough, the judgment creditor, cannot complain of this. It does not prejudice his rights. It imposes no additional hazard, inconvenience, or delay upon him. He filed his bill against all the alienees and asked that all the lands aliened, as far as necessary, should be subjected to the satisfaction of his judgment. The alienees are all before the court, and it is the plainest equity imaginable, that the land primarily bound should be first subjected. If the lands conveyed by the trust deed of May 3,1878. were first sold, after satisfaction of the complainant's judgment, the trust deed creditors would be entitled to be substituted for relief against the land held by Robertson, or such of the proceeds as remained after satisfaction of Hansbrough’s judgment. There is every reason therefore why the land sold to Robertson shall be subiected in the first instance.

The statute (Code of 1873, ch. 182, § 10) declaring the order in which aliened lands shall be liable, must be construed so as to harmonize with the equities which have been considered. It could never have been intended by the legislature to subvert equities at once so potent and so obvious.

There is nothing in the record showing that the lien reserved by the deed of Mrs. Gorgas has ever been released. The mere taking of the bond by Hansbrough for the same debt would not of itself operate a release, and the lien is subsequently recognized in the deed *from Shultz to Robertson as existing. See opinion of Judge Staples in Coles v. Withers & als., supra 186, and authorities there cited. But even if the lien under the deed has been released, the result would not be changed. There is still the judgment lien and the agreement of Robertson to pay the debt.

The decree of the circuit court must be reversed, and the cause remanded with directions to recommit the commissioner’s report, and. in any sale of the lands which may hereafter be ordered, the land conveyed to Robertson must be subjected before the lands subsequently aliened.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the land conveyed by the appellant, Joseph H. Shultz, to the appellee, Harrison Robertson, by deed bearing date on the 22d day of May, 1877, a copy of which deed is made an exhibit in this cause, is first liable to the satisfaction of the judgment of the appellee, Hiram Hans-brough, and should be subjected thereto before the other lands aliened by said Shultz should be resorted to for that purpose.

But tlie court is further of opinion, that the debts and the amounts thereof chargeable of said lands, and especially the debts secured by the deed of trust to Lewis Linkénhoker, trustee, dated May 3d, 1878, are not ascertained and determined by the report of Commissioner Simmons and the decree aforesaid with such certainty as to authorize a sale of said lands, and the said decree was therefore premature, and is erroneous *in ordering such sale before the said debts and amounts thereof had been so ascertained and determined as aforesaid.

Therefore, it is decreed and ordered that the said decree be reversed and annulled, and that the appellants recover against the appellee, Hiram Hansbrough, their costs by them expended in the prosecution of the appeal aforesaid here; and this 'court now proceeding to render such decree as the said circuit court ought to have rendered, "it is further decreed and ordered that the first and third exceptions of William Jolliffe to the report of Commissioner Simmons be sustained, and that said report be recommitted to one of the commissioners of the said circuit court with instructions, after giving notice to the parties, to make further enquiries into the matters embraced in the other exceptions.of said Jolliffe to said report, (this court not determining any questions raised by the last-named exceptions), and also into the several debts aforesaid, and ascertain the dates and amounts'thereof, principal and interest, whether owing and to whom, and restate the accounts ordered by the decree in this cause rendered on the 17th day of February, 1879, and make report to the said circuit court. And it is further decreed and ordered that in hereafter ordering any sale of the said lands that may be necessary, the said circuit court shall order the land aforesaid conveyed to the said Harrison Robertson to be sold to satisfy the judgment of the appellee Hiram Hansbrough. in the bill and proceedings mentioned, first and before sale shall be made for that purpose of the lands subsequently aliened by the said Shultz.

Decree reversed.  