
    *Eppes & al. Ex’rs of Wayles v. Randolph.
    [October Term, 1799.]
    .Deeds — Reacknowledgment —- Effect. — Deed reac-knowledge;! within 8. months, from its date, and. recorded within 4 months from the reacknowledgment is good from the date of the reacknowledgment, altho’ there are more .than 8 months between the time when the deed was first executed and the day of recording it. '
    Same-Consideration — Failure of Deed to Mention-Proof. —Although the deed does not mention, that it was made in consideration of a marriage contract, the party may ayer and proye it.
    Judgments — Limitation-.—Judgments do not bind lands after 13 months from the date unless execution be taken out within that time, or an entry of elegit be made on the record.
    This was an appeal from a decree of the High Court of Chancery, in a suit wherein the executors of Wayles .were plaintiffs against Da,vid Meade Randolph,. ■ Richard Randolph, Ryland Randolph and Brett Randolph, sons and devisees of Richard Randolph, deceased; the bill stated, that in December 1772 the said Richard Randolph, deceased, being indebted to Bevins in ^740. sterling, executed his bond binding himself, his heirs &c. for payment of the same; that Wayles was security to this bond. That Bevins going- out of this state left, the bo.nd with Wayles, who died in possession of it; no part thereof having been paid; that Bevins brought suit and obtained a decree, in Chancery in the Red-' oral Court, against Skipwith and his wife executrix of Wayles for the said ^740. with interest; that the plaintiffs'have paid off great part of the said decree, and- are going on to discharge the residue. That the said Richard Randolph, deceaséd, by his will, áfter several devises, gave the residue of his estate, to his four sons above mentioned, whom he made executors: That he died largely indebted, and the executors allege a want of assets to pay his creditors : That on th.e 11th of October 1780, the said' Richard Randolph; deceased, being .indebted on the bond aforesaid and otherwise, to an amount equal to the whole of his estate, executed'a deed for a tract of land in Bermuda Hundred, Chesterfield county, with the stocks thereon, and 19 slaves to his son David M. Randolph, for and in consideration of his natural love and 'affection for his said son, 'and fór hi'S advancement'in life;'that'the said Richard . Randolph, deceased, being indebted as aforesaid, did *on the 20th day of September 1785 execute a deed' fbr' his' estate called Curies to his son Richard Randolph, after the death' of the said Richard Randolph, deceased, and Anne his wife, ‘‘The consideration, expressed in the said'deed,' being a marriage shortly 'to be had and solemnized, between' the said Richard the son and Miss Mafia Beverly the daughter of Robert Beverly;” but that the said Maria was not 'á party to the said deed. That the said deed was not recorded ' until the third, day'of July .1786: That the' said Richard Randolph, deceased, was fit 1 the time of making his will and at his death seiséd in fee simple of two tracts of land in the counties of Cumberland and- Prince Edward;-one called Sandy Eord, the other Clover Forest,-also of a mill and acres of land in Prince Edward, and of two other tracts of 130' acres each in Chesterfield county, one of which was called Elams. That- he devised Sandy Ford to his son Brett, and Clover Fore'st, with one of the Í30 acre tracts in Chesterfield^ to his son Ryland; that he devised the mill and 50 acres of land adjoining it to his sons Brett and Ryland, 'arid Elams to his son David M. Randolph. That the said Richard the son is heir at law to his father the said Richard Randolph deceased. That the said deeds were, made, by , the said Richard Randolph, deceased, when he well knew that his estate, .in possession, was insufficient to pay his debts, and . that the said deeds were made with, a view to defraud his creditors: That they are void as to .creditors not only for that reason, but because the conveyance to David M. Randolph, was .not- made ■ on consideration good in law against creditors, and that to Richard was not recorded in due time according to the ■act of Assembly. That, if there be no personal assets, the plaintiffs are entitled to satisfaction out. of .all the said lands, or any .other real esta.te .of the said Richard Randolph, deceased, as they have a right to stand in the place of Bevins, and of any other creditors by specialty, *who have been paid their debts, out of the assets in the hands of the executors; and that Richard the son has mortgaged Curies to Singleton and Heath: The bill therefore prays a discovery of the personal estate; and, if that should prove insufficient, that the plaintiffs may have satisfaction as well out of the said lands mentioned in the deeds, as out of those devised by the will; and for general relief.
    The answer of David Meade Randolph as acting executor says, that he knows nothing of his own knowledge relative to the bond: • That the testator died greatly indebted by judgments, bills of exchange, bonds, notes and simple contracts to a greater amount than the assets which have come to his hands: That the assets will not be sufficient to pay the debts of higher dignity: He also demurs to that part of the bill which prays, that the plaintiffs may be put in the place of the bond creditors, because the plaintiffs by their own shewing are not bond, but simple contract creditors. In his own right he pleads that he took no lands or slaves by the devise, except the tract of 130 acres in the cofmty of Chesterfield called Elams; which he did not take to his own use, but has sold it, and applied the money to the use of the testators estate: That, in the year 1780, the defendant, having made proposals of marriage to Mary the daughter of Thomas Mann Randolph, the latter wrote a letter to the said Richard Randolph the defendants father, consenting to the marriage, provided the said Richard would give the defendant a decent and competent fortune, and put him in possession of it; that this letter was delivered open to this defendant, to be presented to his father the said Richard Randolph the elder; which the defendant did: That it has been since lost, but the contents can be proved: That, in consequence of the said letter and the intended marriage, the said Richard Randolph the elder, upon the 8th of August 1780, wrote a letter to the defendant, to be shewn to *the said Thomas M. Randolph, in which he promised, in consideration of the marriage taking place, to give the defendant a fee simple estate in all his Bermuda Hundred lands, and a tract of 1000 acres situate upon Dry creek in the county of Cumberland, with the slaves and stocks thereon, and' two negro carpenters. That thé marriage afterwards took effect; but a little before the celebration thereof, to wit, on the 11th of October 1780, in consideration of the said intended marriage, the said Richard Randolph the elder conveyed to the defendant the Burmuda Hundred lands in Chesterfield with 19 slaves thereon; and as he had not the legal estate in him, he gave the defendant a letter of attorney to sue for and obtain a conveyance from the Royall’s of whom the said Richard the elder had purchased it; by virtue of which letter of attorney the defendant obtained a decree for a conveyance against the heir of the Royall’s; and a deed hath been accordingly executed to him. That the said Richard, in compliance with his letter aforesaid, conveyed to the defendant the Cumberland estate also. That, owing to a mistake in the attorney who drew the deed, the marriage is not expressed as the consideration; although it was the real consideration.
    Richard Randolph in his own right pleads, that he took no lands or slaves by devise j and demurs to that part of the bill which prays that the plaintiffs may stand in the room' of the bond creditors, as, by their own shéwing, they are not bond creditors: By way of answer, he says that lie knows-nothing of Bevins bond of his own knowledge ; and states the want of assets to pay-debts of superior dignity.
    The answer of Brett Randolph states, that he knows nothing of Bevins’ debt-mentioned ■ in the bill; admits his father’s will, but says that he never qualified as executor: It likewise admits the devise to him of Sandy Eord lands and a moiety *of the mill. 1 Of which he had sold acres including a moiety of the-mill, for the sum of £ . That the testator was indebted by bond to Pleasants in £ who has brought suit and obtained judgment thereon against him and the said Ryland as devisees as aforesaid; of which judgment the defendant is bound in law to satisfy a moiety: That the testator was likewise indebted by bond, to Benjamin Harrison jr. and company in £ ; who-have also obtained judgment against him and the said Ryland as devisee; and have sued out execution against the whole of the residue of the devised lands unsold by the said Brett; that the said residue was naked and unimproved at the time of the testators death; but has been improved by the said Brett, which has increased -its value ; That, after the execution aforesaid issued; the defendant let the said Benjamin Harrison have the said residue, at a fair valuation, in discharge of part of the sum due by the said execution: That he was also obliged to purchase of Jackson (who-had the fee simple therein) 371 acres of the Sandy Eord tract at £ ; which should be allowed, or the said 371 acres should not be considered as any part of the devise ;■ That these sums, to wit, for Pleasants judgment, that for the improvements, and that for the purchase of Jackson’s lands, are of greater amount than the alienations made by the defendant.
    The answer of Ryland Randolph is to-the same effect with Bretts respecting the plaintiffs debt, the executorship, the devises to the defendant, the judgment of Pleasants, that of Harrison & Co. and the issuing of the execution by the latter; that the defendant sold the Chesterfield tract for £371. 16. and 74 acres of Clover Eorest for £76. IS. That Harrison & Co. have taken the mill and all the lands unsold by the defendant in execution, which were not sufficient to pay the interest of the defendants proportion of that judgment,' whereby Harrison &' Co. obtained a perpetual *title thereto; That the defendant, after the testators death, was obliged to pay an arrearage of taxes due on the testators several tracts of land-in Cumberland ; That the defendant had bought Brett’s moiety of thé mills, which was also-included in the extent on the execution. Which together with the defendants moiety of Pleasants judgment exceeds the amount of his alienations.
    The deed from Richard Randolph the father to Richard Randolph the son was dated on the twentieth day of September 1785; was re-acknowledged on the 21st of March 1786; and was recorded on the 3d of July 1786. The consideration is expressed to be, “for the purpose of advancing him the said Richard Randolph the younger, and for and in consideration of a marriage intended shortly to be had and solemnized between him and Miss Maria Beverley the eldest daughter of Robert Beverley of Bland-field, and also, for and in consideration of the sum of five pounds to the said Richard Randolph, by the said Richard Randolph the younger, in hand paid.”
    The deed from Richard Randolph the elder to his son David Meade Randolph for the Bermuda Hundred lands is dated on the 11th of October 1780; and the consideration is expressed to be, “the natural love and affection which he beareth to his son the said David Meade Randolph and for his better advancement in life.” And that for the Dry Creek land in Cumberland, expresses to be made; “for and in consideration of the natural love and affection which the said Richard Randolph beareth unto his son the said David M. Randolph and for his advancement in life.”
    There is a letter from Richard Randolph the elder to his son David Meade Randolph in the following words.
    “Dear Davy,
    “Ever since you informed me, you had a prospect of forming a connection so very agreeable *to your friends here, X have exerted myself, to little purpose, to procure you a seat to carry a wife to, as it never was consonant to my notion of things, any man should think of marrying until he had a home (let it be ever so indifferent) to present those with, that ought to be most dear to him: Which, I -flatter myself, is the sole motive that induced you to engage in a business so serious; because you may be assured without such honorable intentions, there is little happiness to be expected from such a measure; and having not the least doubt of your plans being on the most noble principles I shall think it a duty incumbent on me to enable you to carry them, without delay into execution : Which I shall do cheerfully, as I wish to live now, altogether for the sake of my children, having lost my relish for almost every thing else.
    “When I furnished your Uncle with twelve thousand pound for the reversion of Turkey Island, it was with a view of securing it for you; but as your present situation may make it inconvenient to you to wait for dead mens shoes, instead thereof I am very willing, in consequence of your marriage taking place with Col. T. M. Randolph’s daughter Polly, to give you a fee simple estate; in all the lands I have in Bermuda Hundred, one thousand acres in Cumberland county, called and known by the name of Dry Creek, together with all the slaves and stocks thereon of every kind whatsoever, with two negro carpenters, mulatto Peter and Mingo; so that, should this proposal be agreeable to all concerned, I shall hold myself in readiness to ratify it any moment, and am with love to the good family, your loving father.
    Richard Randolph.”
    Curies, Aug. 8, 1780.
    Curry a witness to the re-acknowledgment of the deed, states: That both Richard Randolph *the father and Richard Randolph the son re-acknowledged the deed from the former to the latter, when he attested it as a witness.
    There are several depositions, proving the amount of the value and improvements put by Brett on Sandy Ford; the sales made by him; and the valuation at which the residue was taken by Harrison.
    The deposition of Richard Randolph the son states, that in the year 1780, he heard his father read a letter from Th.omas M. Randolph, which .was said to be a joint letter, and requiring a settlement of property to a certain amount, previous to their consenting to the marriage of their daughter Molly to David M. Randolph; in consequence of which the said Richard Randolph the elder agreed to make provision and actually gave Presque Isle and Dry Creek to the said David M. Randolph.
    Harry Randolph’s deposition states, that the marriage of David M. Randolph was postponed, only on account of Col. Richard Randolph not having given his son David Meade Randolph certain property in fee simple in lands, &c. ; and which the depo,nent understood was to be partly in or about Bermuda Hundred. That the deponent remembers seeing a letter, signed by Colonel Thomas Mann Randolph, demanding a settlement prior to the said marriage; and this deponent understood that such a settlement was made.
    Pending the suit, Hanbury as surviving partner of Capel and Ozgood Hanbury, and Main as executor of Hyndman surviving partner of James Buchanan & Co. were admitted plaintiffs, and filed their bill charging that the said Capel and Ozgood Hanbury had obtained three judgments of ¿£1039. 0. 8. sterling each, against the said Richard *Randolph the elder, in the County Court of York, on the sixteenth of July 1770: That the said Richard the elder was indebted to the surviving partners of the said James Buchanan & Co. by bond, in a balance of £2355. 11. 3. on the 5th of July 1775; For which sums the plaintiffs respectively ask relief, having regard to the dignity of their debts.
    The following agreement was entered into:
    “It is agreed in this cause that the judgment creditors are not to be considered as subject to the disadvantage attendant on their being plaintiffs in equity, with the admission of their having no legal title: nor are the defendants to be understood as admitting that they have a legal title; but it is agreed that the claim and defence are to be first considered as they would stand at law, and if the defendants have a de-fence at law they are to receive the benefit of it: If, on the contrary, it is the opinion of the court that the plaintiffs ought to succeed at law, then it is agreed that the case shall be so considered, and the defence of the defendants, as well legal as equitable, shall be estimated as it would be, if they were now praying to be relieved against those judgments. Any issue which the court may deem necessary may be directed nowithstanding this agreement. It is further understood that nothing in this agreement shall bar the court, if the right be determined in favor of the complainants, from extending the remedy according to the principles of equity.”
    Pleasants as executor of Robert Pleasants also filed a bill for the amount of a judgment of £40. obtained against Richard Randolph the elder, in his lifetime, in the County Court of Henrico.
    There is also a claim on behalf of Byrd’s trustees upon a judgment of Henrico Court against *the said Richard Randolph deceased, on the 6th day of July 1784; on which a writ of fieri facias issued, and was satisfied, except as to £394. IS. 9. which was enjoined by the said Richard the elder, but the judgment was revived, by scire facias, against his executors in the year 1788, as to the enjoined sum.
    To these bills' the defendant Richard Randolph and David Meade Randolph by answer deny any knowledge of Hanbury’s judgments until after the death of Richard Randolph; that they are respectively purchasers for valuable consideration; and therefore they severally pray that their respective purchases may be saved to them, in the same manner as if specially pleaded; that, at the time of rendering those judgments, the said Richard Randolph the elder lived in Henrico Countj'; that they believe the said judgments have been in the whole or in great part paid; and rely upon the presumption arising from length of time.
    The defendant Richard Randolph, by way of amendment to his answer says, that on the 21st of March 1786 the said Richard Randolph the elder lay ill of the sickness of which he died on the 5th of June 1786; That the portion of ^1200. sterling promised by Robert Beverley in consideration of the marriage, between his daughter and the respondent, has been paid; that the executors of Wayles knew of the deed to the defendant, shortly after it was executed ; that the deed was executed in consideration of the marriage contract; and that the defendant has mortgaged to Singleton and Heath.
    The answer of Heath states, that the mortgage was made to him by the defendant Richard Randolph, who had a conveyance from, and was heir at law to the said Richard Randolph deceased; and that he is a purchaser without notice.
    The answer of Singleton’s executors states that the defendant Richard Randolph being seized “‘either by descent or purchase mortgaged to their testator.
    The executor of Hanbury replies, that he was a British subject; that the debts claimed are within the treaty of peace; that the defendant David Meade Randolph had notice of the judgments on or before the 1st of June 1791; that the plaintiff and the said Capel & Ozgood Hanbury have always resided in parts beyond sea, and out of the limits of Virginia.
    Amongst the exhibits are copies of Han-bury’s judgments; the bond of Richard Randolph the elder to Hyndma'n as surviving partner of James Buchanan & Co. and that to Bevins; the exhibits spoken of in the answers of Brett and Ryland Randolph ; and the will of Richard Randolph the elder.
    The Court of Chancery directed one of the commissioners to take an account of the lands, tenements and hereditaments, whereof the said Richard Randolph the elder was seized on the 16th of July 1770, and which descended to his heir at law, and also which were settled upon, or devised to any of his sons: and also to take an account of such parts thereof as had been conveyed, or otherwise disposed of by the said heir and devisees respectively, with the considerations paid, or secured to be paid for the same ; and also an account of the permanent improvements, upon any of the said lands, tenements and heredita-ments, made by the said devisees.
    Upon the coming in of the report, the Court of Chancery delivered its opinion, that the deeds from Richard Randolph the father to David M. Randolph the son, said to be one “for his advancement in life,” and the other ‘ ‘for his better advancement in life,” might be averred to have been in consideration of the marriage, being congruous with the consideration mentioned in the deeds. That the judgments of Hanbury, and of *Byrd’s trustees, if revived against the heir of Richard Randolph the father, would not by relation defeat or impair lawful mesne acts, such as those deeds, and the judgments and proceedings against Brett and Ryland: That the deed to the defendant Richard Randolph the son, if it had been cancelled and re-executed in March 1786, and had been altered in another part, would have been an act of that day, in the same manner as if another conveyance had been then executed ; and, having been proved within eight months from that time, would have been good against the creditors of the father; although the marriage of the son and Maria Beverley, in consideration of which the conveyance was executed, had preceded; because marriage is a consideration continuing. But the said deed being only acknowledged before the witnesses who proved it, which could mean nothing more than an acknowledgment that the deed had been sealed and delivered on the day of its date, and the said deed being stated to have been made in consideration of a marriage to be had and solemnized, whereas the marriage had been actually solemnized before, could not be considered as an act of the day when it was so acknowledged, and consequently not having been proved within eight months from the sealing and delivery thereof, was void against creditors, by the words of the act of Assembly. That there fore, if the judgments of Hanbury had been revived against Richard the father, or his heir and devisees, writs of elegit or levari facias might, by the act of 1772, have been lawfully directed to the sheriff of any county, and, in that case, must have been first satisfied: But, not having been revived, they were not entitled to a priority against creditors of equal dignity. That, if Wayles’ executors had taken an assignment to their trustee of Bevins’s bond, they would, in his name, have been entitled to the same relief that Bevins himself would; and that a court of Equity would have enjoined the heir of Richard Randolph ^deceased from pleading payment by the sureties executors: That they ought to have the same remedy as if such assignment had been made; and that they had an equal right, with the judgment creditors, as the heirs were specially bound by the bond. Therefore that court dismissed the bill as to David Meade Randolph ; and, declaring the lands, conveyed to the defendant Richard Randolph the son, liable to the creditors, deducting the improvements made thereon, by him, ordered a sale by commissioners. And pronounced the lands devised to Brett and Ryland, and which had been extended and sold for payment of the testators debts, to be exonerated from the lien, to which they would otherwise have been subject. From this decree Richard Randolph appealed to this court.
    On the day of pronouncing the decree, the following agreement was entered into, ‘ ‘The plaintiffs counsel agree that a suit, which is contemplated to be brought on behalf of Robert Beverly and Maria Randolph his daughter, in order to obtain a specific performance of the marriage contract in this suit alleged to have been made, for settling Curies estate on the marriage of the defendant Richard' Randolph and the said Maria, shall not be prejudiced by the decree in this cause having been entered before such suit is instituted; but that the plaintiffs,' in such suit, shall have the same benefit therefrom, as if the suit had been instituted prior to the pronouncing of the decree in this cause, provided that the said suit shall not be unnecessarily retarded, by the complainants in the said suit.”
    The bill by Robert Beverly and his daughter was against the plaintiffs in th.e other suit, and against Richard Randolph the son, and the executors of Richard Randolph deceased. It stated, that, in 1785, Richard Randolph, the son, applied to the said Robert Beverly for permission to address his daughter, the plaintiff Maria, in the *way of marriage: That the said Robert informed him he should give his daughter a portion of £1200. sterling, in addition to a legacy of A500. sterling, upon which a considerable interest had accumulated; and therefore should .expect that the said Richard Randolph the father would make a comfortable provision for his said daughter, and when this was properly done he should have no objection to the proposed marriage: That, in a short time after, the said Richard the son returned with the following letter from his said father. “Sir, the connection my son Richard is about to form, with your amiable daughter Maria, is perfectly agreeable to all his friends upon James river; and you may be assured, on so desirable an event taking place, I shall prepare for making the best provision, my situation will admit of, for their accommodation. The place where I now live, known by the name of Curies, in Henrico countj*, is what I intend for him, at the death of his mother and myself, with forty slaves; that is to say, eight men, six women, six plough boys and twenty children; together with the use of Turkey Island plantation, during the lives of Richard and Anne Randolph, when it is to revert to my estate again; an'd am with a tender of our compliments to the family, your most obedient servant. Richard Randolph. Curies July 20th, 1785. ’ ’ That. the said Robert Beverley, thereupon, assented to the marriage, which accordingly took effect; and the plaintiff Robert hath paid the portion and legacy aforesaid: That the said Richard Randolph the father, intending to execute his promise aforesaid, made a deed to Richard the son for the Curies estate, upon the 20th day of September 1785, which was before the marriage. That the said Richard the father being ill of the sickness of which he died, and finding that he would be unable to go to court to acknowledge the deed re-acknowledged it before three other witnesses, on the 21st of March 1786, .and the same was recorded in July following. *That the deed varies from the articles, as to the interest which ought to have been granted. That the defendants have set up claims against the estate, alleging that the deed was not recorded in time. That the re-acknowledgment, if not equal to a re-execution of the deed, was agreeable to the construction of the act of 1748: That the original articles may now be enforced; and that compensation should be made for the loss of the interest in Turkey Island; the sales of which are in the hands of the defendant David M. Randolph as executor of the said Richard the elder. Therefore the bill prays that the deed may be established as far as it consists with the articles; that compensation may be made for Turkey Island; and that the plaintiffs may have general relief.
    The answer of the creditor defendants admits the letter of the said Richard Randolph the father to the plaintiff Robert Beverley, previous to the marriage, but relies upon their rights as explained in the former proceedings and decree.
    There was a narrative signed by the said Robert Beverley, which -was admitted to-be read in the cause, and is as follows. “When Mr. Richard Randolph jr., applied to me in 1785, for permission to address my daughter Maria, I observed to him, that as I should give my daughter twelve hundred pounds sterling, and Mr. Mills had left her five hundred more, upon which had accumulated a considerable interest, I should expect that his father should make a comfortable provision for him and that when this was properly done, I should have no objection to the marriage. In a short time after this was done he returned with the following letter. (Here follows the letter recited in the bill addressed to Mr. R. Beverley.)
    Deeming the provision above specified adequate to the fortune I should give my daughter, and supposing that Col. Richard Randolph had a right to make the pro-posai, I told Mr. Richard Randolph *junior the marriage might take place, but that without such a provision I should not have consented to it.
    Robert Beverley. ’ ’
    Blandfield March 4, 17§7.
    The Court of Chancery, for the reasons explained in the proceedings in the former cause dismissed the bill with costs. From which decree the plaintiffs appealed to this Court.
    Both causes came on to be heard together in this court.
    Call for the appellants.
    There are four questions to be considered on the part of the appellants in these causes; 1. Whether the judgments bind the lands, in the hands of the lienees? 2. Whether the re-acknowledgment of the deed, from Richard Randolph the father to Richard Randolph the son, was effectual to convey the estate out of the grantor, from the date of the re-acknowledgment, so as to defeat the rights of creditors? 3. Whether if the re-acknowledgment be insufficient, the original agreement, on account of the fraudulent execution of it, may not now be enforced according to the first intention of the parties? 4. Whether if the deed, from Richard the father to Richard the son, be void, the mortgagees, as deriving title under the heir at law, will not be preferred to the other creditors?
    I. The judgments do not bind the lands in the hands of the alienees; because no executions were sued within a year from the rendition thereof; and . therefore the lien, if there ever was one, expired.
    For the reason why judgments bind lands at all, is not that the statute says they' shall be bound in so many words; but it is merely a consequence which the court draws from the statute, by holding purchasers to constructive notice of the judgment. So that the lien is created not by the statute, *but by the knowledge which the court presumes the purchaser to have had of the judgment.
    But there is aiso a rule of law, that, after twelve months and a day have expired, the judgment shall be presumed to be satisfied, 3 Black. Com. 421. So that after twelve months and a day have elapsed, without any execution, the plaintiff is driven to the necessity of removing the presumption, before he can make his judgment effectual.
    Thus then it appears, that there are two presumptions against each other, 1. The presumption of notice; 2. The presumption of payment: Of which, the presumption of payment is, at least, as strong as that of notice; and therefore is entitled to the same weight in the present discussion.
    But if there be a presumption of payment, as well as a presumption of notice, and the. equity of the parties be equal, the purchaser ought to prevail. For he had a right to make the same presumption of payment, which the law did; and therefore was guilty of no fault: Whereas, it was gross negligence, in the creditors, to suffer their judgments to sleep so long, without actually suing executions, or continuing the award of them upon the roll; so as to put purchasers on their guard. For it operated as a fraud upon the purchasers, which shall give them priority. It is like the case of an execution delivered to the sheriff and the proprety taken, but not sold, at the instance of the plaintiff; which will be postponed to a subsequent judgment and execution at the suit of another creditor. 1 Yez. 24S.
    Thus far upon principle; but a great writer states the very case, now under consideration ; and decides against the lien. I mean the Lord Chief Baron Gilbert who in his book upon the law of executions,, after having shewn, in the preceding pages,, the time in which judgments, in personal, actions, were to be executed, at corn-mon law, and that *a judgment gave an authority to the party to sue execution within a year and day; but if he did not do it within that time, that it was presumed to be paid, adds, ‘ ‘This time of limitation of judgment, was not only in personal but real actions; for though the judgment on a real action settled the right of the land forever, as in the personal it did the right of the thing in demand, yet that judgment could not lie dormant forever, to be executed at any time; for then dormant judgments would over-reach conveyances between the parties, and therefore there was but a years time to execute such judgments, which judgment, over-reached all conveyances, and forced the party to an audita querela; but after the year, the judgment over-reached nothing ; but he was put to his scire facias on that judgment, and not to his action, for the right of the land had been already determined, and therefore it was only to revive the determination touching the lands, unless something had been done by intermediate conveyances, Gilb. law Fx. 12.”
    This passage establishes all that I have been contending for; It shows the genius of the law upon subjects of this kind; and proves that the judgments do not overreach the conveyances in the present case. For it would be difficult to conceive why a judgment should over-reach mesne conveyances in personal, and not in real actions; wh}', in a real action, where the land itself is demanded it should not disturb the purchaser, and in a personal action, where the land itself is not specifically sued for, it should; why in a real action, where the land itself is actually recovered, the conveyance should not be postponed, and in a personal action where money only is recovered and payment may be made various ways, that it should; finally, why in a real action, where the execution can only go against the lands, the purchase should be protected, and in a personal action, where the Execution is usually issued against the person and effects in the first instance and the *lands are seldom resorted to, until all other means have failed, the purchase should be avoided.
    Perhaps it will be said that as the statute has now given a scire facias in personal actions a different rule will result; for the judgments might have been revived by writs of scire facias; and that when revived they would have related back to the day of the first rendition. That, however, would not be correct. 1. Because relations,- which are legal fictions only, never have that effect: For they are created rather for necessity lit res magis valeat quam pereat; and therefore, they extend only between the same parties, and are never strained to the prejudice of innocent persons. 2. Because that argument is directly contrary to the doctrine laid down in the passage just recited. For the author expressly says that a scire facias lay at common law; and therefore, in this respect, the cases are alike: But when he speaks of an expired judgment, and says it will not over-reach, it is plain, that he must mean after it is revived; for until revived, it could not be enforced. So that in fact he puts the case of an expired judgment revived by scire facias; and decides that it will not overreach. For it would have been nugatory, to have peremptorily said, that the judgment would not over-reach, without mentioning, because not revived, if by a subsequent process, it could have been revived, and made to over-reach by relation.
    But if, as was argued in 3 Mod. 189, the scire facias be a distinct action, and the judgment on it a new judgment, it is conclusive that the judgment on it does not relate back to the first, so as to avoid mesne purchases; because, in that case, it would be the second judgment which would bind, and not the first; as it is only b3' considering the first as the real judgment, and the second merely as an award of execution on the first, that the lien can be preserved. For the statute gives the elegit on judgments upon which executions may issue; *but if the second be a new judgment, then the execution issues upon that; and of course the elegit could only issue upon the judgment in the new action or scire facias; which would create a new obligation, and would be the point from whence the lien would recommence. Accordingly in the case in the 3 Mod. where judgment was obtained against a feme sole, who afterwards married, and then a scire facias was brought against husband and wife, and, upon two nihils returned, judgment obtained against them; after which the wife died, and a second scire facias was brought against the husband alone; and it was held that it lay: Which could not have been the case, unless the judgment upon the first scire facias had been considered a new judgment altogether; for if it had related back to the first, that was a judgment against the wife only before the marriage, and therefore would not have bound the husband after her death.
    This reasoning is strengthened by the act of' Assembly concerning executions, which recites that the plaintiff may take execution within a year after the judgment; and therefore impliedly, that he cannot have it afterwards. But, when he can no longer have execution, the lien which arises from it must expire. For if the lien is created by the Court merely because the plaintiff has a right to sue execution, it must follow, that when he has no longer a right to the execution, there can be no lien. Because the lien; when the right to execution expired, lost its support; and to use the language of lord Coke on another occasion, became a flower fallen from the stock, without any thing to nourish and keep it alive.
    These arguments are the stronger in Hanbury’s case, when it is considered that at the time of the conveyances no scire facias could have issued on those judgments, without special leave of the court, on account of the length of time which had elapsed; because that increased the presumption *of payment and more completely justified the purchaser. For where the plaintiff could not make use of the process of the Court ex debito justi-tise, it rendered the presumption greater that the right was extinguished.
    But there is another objection to those judgments, namely, that at the time of the rendition of them no execution could have been sued upon them into another county. But if the lands are only bound because execution might be sued against them, it follows, necessarily, thatwhere no execution could issue against those lands, they could not be bound. For how absurd would it be to say that lands could be affected by a judgment, upon which no execution, that would reach them, could issue. It is like the case of judgments in the Federal Courts, which do not bind the lands in any other state than that where the judgments are given; because an execution cannot issue into any other state.
    Nor does it alter the case, that, by the subsequent act of 1772, an execution against lands might be issued into any other county upon a judgment in a County Court. For the Legislature could not intend that it should relate to expired judgments, which could not be enforced without new process. The words of the act are opposed to that idea. For they give the clerk power to issue execution; which supposes the judgment to be capable of affording an execution, without any new act to be done. But when no execution could issue, it necessarily followed that it was not a case contemplated by the Legislature; And the Court will not extend the construction, in favor of a negligent creditor, to the injury of fair purchasers, who are seeking to avoid loss, in a case where they have honestly laid out their money, upon this specific property; whereas the creditor is seeking to make gain out of property which he did not particularly hazard his money on : and the *principle of universal justice in such cases is, that his condition, who seeks to avoid loss, is better, than his, who seeks to make gain.
    But as the judgment only binds in respect of the constructive notice, which is a legal fiction and a creature of the court. The court, by analogy to the record laws, will confine the lien to the same jurisdictions, and limits, as the recording of conveyances is confined to: Which will be no inconvenience to any body, as the creditor will have his lien over reasonable limits: and the purchaser will be exposed to no greater difficulty in enquiring for judgments, than he will for conveyances. Whereas the inconveniences, from a general lien all over the state, will be incalculable, and intolerable. For there are ninety County Courts, six Corporation Courts, and eighteen District Courts; besides the Courts of general jurisdiction. So that the labour of the purchaser would be endless, and he would sooner relinquish the purchase than encounter the difficulties.
    But, in addition to this, the opportunities of fraud, which it would afford, would be infinite; for it would put it in the power of the debtor and creditor to deceive all mankind. Thus a man living in Henrico may have a judgment rendered against him over the Allegany; and seven and twenty years afterwards, this dormant judgment may be trumped up, in order to defeat a fair purchaser, who has honestly paid his money without the least suspicion of any incum-brance. An observation which is particularly applicable to the present case. Because here were judgments obtained, in York, 27 years before the commencement of the present suit; and it is now sought to charge them on lands in Prince Edward and Cumberland. Although no purchaser of those lands would ever have had the slightest suspicion that they were bound by a judgment in York.
    But for other reasons, the judgments in York do not bind these lands.
    *1. Because at the time of the conveyances no scire facias from a County Court ran into another county against the terretenants, who must be actually summoned in person or upon the lands; nor can it even now run into another county, upon such judgments. Eor the scire facias into other counties, given bj -the act of Assembly, is only against parties to the judgments and their representatives, and not against other persons. So that if the judgments were revived by scire facias against -the executors, they would not be effectual against the purchasers.
    2. Because the scire facias, as between the plaintiff and the terretenant, is an entire new proceeding altogether; and, being an action concerning the realty, the venue must be laid in the county where the lands lie, as necessarily as in an ejectment or writ of right; and therefore the County Court of York, having no jurisdictión of lands in another county, could not try the issue, which the terretenant might think ■proper to make. So that the terretenant, if accidentally summoned in the County Court ■of York, might plead to the jurisdiction of the court; or, failing to do so, he might state any matter in bar of the plaintiffs right, and then the Court of York, not having jurisdiction of the subject matter, must desist from further proceedings in the ■cause, in the same manner as every court of limited jurisdiction must do, whenever it appears that the question is beyond the bounds of their authority.
    Therefore, under every point of view, it may be affirmed that the lien was at an end, •and that Richard Randolph the elder might lawfully convey.
    II. The re-acknowledgment of the deed was effectual to convey the estate out of the grantor from the date of the re-acknowledgment, so as to defeat creditors.
    *This clearly consists with the view of the Eegislature; for that was only ■■to enable creditors and purchasers to en-quire for the title and to find out the true owner of the estate: Which, is as effectually done by a re-acknowledged deed, if recorded, as by an original deed.
    But then a technical reason is urged against it; namely, that the deed being good between the parties, the grantor had nothing to dispose of, at the time of the re-acknowledgment'; and therefore the re-acknowledgment is void. That argument however is not found. Eor if the mere execution of the deed passed the estate out of the grantor, as against creditors and purchasers, then the giving up the deed again to the grantor destroyed the grantees evidence of his title; and therefore the grantor might regrant either to the same or another person, Eitt. Sect. 377: Where it is said “If the feoffee granteth the deed to the feoffor such grant shall be good, and then the deed and the property thereof belongeth to the feoffor &c., and when the feoffor hath the deed in hand, and is pleaded to the court it shall be rather intended that he cometh to the deed by lawful means, than by a wrongful mean:” Upon which Eord Coke observes “Hereby it appeareth that a man may give or grant his deed to another; and such a grant by parol is good. Co. Eitt. 232 (a).” These passages decide the very point; and shew that the grantee may give up his deed to the grantor, and that the latter may avail himself of the benefit of it. Of course it follows, that he may grant to whomsoever he pleases^fterwards.
    Nor could the grantee resume his title; for, as by statutorj' conveyances the estate only passes by the deed and not by transmutation of possession, it follows that, when the grantee cannot shew a deed, he can claim nothing in the land. Because to recover at law, he must produce the deed: But this he cannot do, when he has not the possession of it; and a Court of Equity would not assist him against his own voluntary surrender of the deed: Whereas the second grantee would always have it in his power to shew proper title papers; and consequently his right could not be disturbed.
    It is therefore like the case of a deed that is cancelled and afterwards re-delivered (which is admitted to be good;) because it is precisely the same thing, in principle, by whatever means the property in the deed is lost; for it cannot be material whether it is lost by this or that mode.
    But the re-acknowledgment would pass an interest, if the estate, as between the grantor and grantee, was actually transferred. Eor if it was after the eight months, then it would pass the right, which had resulted to the grantor for the benefit of creditors and purchasers: And if it was before, then it passed the possibility of such re-verter, as it is now clearly held that a possibility is assignable. 3 Term Rep. 88; Eor, the grantee being in possession under the grantor, the re-acknowledgment would operate either as a confirmation or release of the interest.
    These observations have been made upon the supposition that the whole interest passed out of the grantor upon the first delivery of the deed. But in truth the deed passes nothing, as to creditors and purchasers, until it is recorded. Fori as against creditors and purchasers, the act of Assembly malces four 'things necessary to be done, in orde'r to perfect the conveyance. 1. Writing; 2. Indenting; 3. Sealing; 4. Recording. For the -words are “That no lands &c. shall'pass, alter or change from one to another &c. by bargain and sale, lease and release, deed of settlement to uses, of feoffment, or other instrument,, unless the same be made by writing, indented, sealed' and recorded &c. ” ■ So that all four are absolutely' requisite agriinst creditors or .purchasers; arid the absence of either of those things, will leave the estate, as to them, in the grantor still. 1
    *It is therefore, as to creditors and purchasérs, exactly like the case of the statute of enrollments in England, passed in the 27 H. 8, Cap. 16: From which our act of Assembly appears to have been copied; as the words are nearly the same, except that, that statute,' although it says po estate shall pass without enrollment, does not declare, in so many words, that the conveyance shall be good between the parties to the deed, as our act of Assembly does: But, in practice, the courts, there, have put the same construction on it.
    Now it has always obeeri held under the statute of enrollments, that, until the enrollment is actually made, the estate abides in the grantor against creditors and purchasers: -So here, the deed, until it is actually recorded, has no effect against either preditors or purchasers; but, as to them, the estate remains in the grantor. For the right of the creditors and purchasers' is more than an estoppel; it is an actual ■ beneficial interest, which the act prevents from passing out of the grantor at all, unless the prescribed regulations are observed. So that the deed before it is recorded only passes part of the interest out of the grantor and not the whole; like the case of a conveyance of an estate tail or any lesser interest out of the fee.
    But then perhaps, it will be said that according to this construction a man would lose his estate, against creditors and purchasers, on the next day after his deed was executed, provided it was not previously recorded; although it might actually be recorded within eight months afterwards. This however would not be correct. For when it has been recorded it is good by relation from the day of the date. 2 Inst. 674. Because when several things are necessary to be done, in order to perfect any act, when the last is done it relates back to the first; .and the whole are good ab initio. l Wils. 212; Hob.,22; Ventr.360. Therefore although the deed is not good, as to creditors and ^purchasers, before it is recorded, yet after it has been recorded it relates back to. the delivery, and avoids, the rights of all other persons indiscriminately; becaus.e the grantee, having by law eight months allowed him to record it in, was guilty of no fault in not doing it sooner; and as he had made the. first contract, he had the first right in conscience. ’ So that the relation in .such ra case wrought no injustice. ....
    But if nothing passed against creditors and purchasers by the first delivery, then the grantor had an interest to pass by the re-acknowledgment. For he had that portion of' the estate which remained in him for the benefit of creditors and purchasers; and this interest he might well grant notwithstanding the deed, Hinds case, 4 Co. 71: Where, Hawe bargained and sold lands to Eibbe, and before enrollment, levied a fine to him; and it was held that the fee pas'sed ■ by" the fine. Which proves two things expressly, 1. That the' estate remains in the grantor until the enrollment; 2. That the grantor may pass that estate to his own grantee. So that it is precisely our case, as far as respects creditors and purchasers; and proves that, as to them, the land is considered as remaining in the grantor until the deed is recorded; but that when'it is recorded, it takes effect from the delivery by relation, and destroys the rights of the creditors and purchasers.
    Any other construction produces' incon.sistency in the effects of the act. For if the deed ipso facto, by the first acknowledgment, passed the whole estate into the grantee, it would be difficult to conceive how it would revest in the grantor, for the benefit of creditors and purchasers, after the eight months’had elapsed. Because the act does not declare that the estate shall re-vest, but that the deed shall be void only. Now the deed might be void, and yet the estate, once vested in the 'grantee, would remain there; and could not revest *in the grantor, by the words of the act of Assembly, without a new deed.
    But then it will be said that admitting this construction to be right, this was not a new deed, but a mere re-acknowledgment of the old one; which, according to the Chancellors reasoning can mean nothing more than an acknowledgment that it was delivered the day of its first date. This position is never true; because when it is re-acknowledged, the grantor repeats the ceremony, and says in the presence of the witnesses that he acknowledges it to be his seal, and delivers it as his act and deed. So that it is in fact always an act of the day of its re-acknowledgment. But however true the position may be in general, it is certainly not so in this particular case. Because the grantor here has ' actually caused the real date of the re-acknowledgment to be noted by the witnesses; thereby manifesting his design that it should be considered as an act of that day.
    : : Nor is it a circumstance of small weight that the general custom and practice of the country is conformable to- the exposition which we contend for. ■ Many deeds, soon after the act of' Assembly was first made, were re-acknowledged and recorded in the proper Courts; and the practice has been continued in various instances down to the present day. So that the proportion of estates, held under deeds in that situation, is probably very great. Therefore admitting the construction to have been, mistaken at first, it is certainly better that it should be adhered to; upon the principle, that common error makes the law, than that'a third part perhaps of all the titles in the state should be overturned.
    It is upon this principle that if a decision of a Court is against a statute, the decision, though wrong, will always after be adhered to. Yet the decision no. more repeals the act, than the custom of the people; but the court adheres to it as a less evil than uncertainty in the law.
    ^'Accordingly ' instances are not wanting, both in England and in this country, where men acting under a common deiusion with respect to the law have been protected. Thus in the case of Eong v. The Deane and Chapter of Bristow, 1 Roll, ab. 378. Where a lease was made, by the Deane and Chapter, at a time when it was supposed that the statute of Eliz. did not bind the King, and afterwards it was held that it did; yet because the law had been mistaken the lease was supported. So in this court in the case of Currie v. Donald, 2 Wash. 63, the custom of the country was mentioned as a circumstance of weight: And Branch v. Burnley Nov. 1799, was expressly decided upon the ground of the custom. The language of one of the Judges in that case, after stating the situation of the law record was, “In equity the custom is set forth, and though, as stated in the demurrer it was illegal, yet since the practice had impressed on the minds of the people, an idea of its legality, and under that idea the payment was made, he ought in this court to have the benefit of it.” Now there can be no difference whether the custom is illegal by common law or statute. For the law is equally binding in either case, and therefore, if custom can sanctify a mistake with regard to the one, it may with regard to the other.
    There is nothing in the objection that the marriage was already had. before the deed was re-acknowledged; because the recital should be considered as surplusage, and then the consideration of the money and blood was sufficient, to pass the estate; which could not be avoided, because the marriage contract would prevent the conveyance from being considered as voluntary, in the same manner as if a deed is expressed to be made for the consideration of five shillings, when full value was ^actually paid, the estate passes and the true sum paid will secure it to the grantee.
    The result is, that the re-acknowledgment was sufficient; and, as the deed was recorded within eight months afterwards, it is good against creditors.
    III. But if the deed is void because not recorded within the eight months, then the contract was not well executed; and therefore on account of the fraud may now be enforced.
    For the contract was not merged in the deed; because Beverley was no party to it; and did not even known that it had been made until long after the eight months had expired. It was therefore a transaction between other persons without his privity or consent; and consequently could not affect his contract, which he had a right to have effectually fulfilled.
    The 4 sect, of the act of Assembly makes no difference; 1. Because that means the actual settlement itself and not the mere agreement for it. 2. Because that was intended to operate on the claims of the husband and wife or their trustees only, and not upon those of third persons. 3. Because Beverley was a purchaser for money actually paid; and therefore it does not stand on the common footing of a marriage contract. 4. Because the execution was a fraud upon Beverley. For the father and son, who pretended to have the.articles executed and did not do it effectually, were guilty of a fraud, in the same manner as in the case of an underhand agreement to payr back money, contrary to the tenor of the contract. 2 Pow. Contr. 164. Others, therefore, will not be allowed to take advantage of the omission to record; for that, on account of the fraud can create no right: But Beverley is left, at liberty, to avoid what has been done, and to assert his contract. 2 Pow. Contr. 55.
    But if the contract remains, .then it specifically binds the lands; for the act does not avoid the contract but only the deed. So that if the contract was never merged it remained with all its *consequences, and formed a lien on the lands even against Judgments. 2 Pow. Contr. 58.
    IV. If the deed be not. good, and the marriage contract cannot now be carried into effect, still as the judgments are no lien on the estate, the mortgagees will be 'preferred.
    Because they have the title of the heir at law; and being purchasers they have, at least, an equal equity with the creditors; Therefore having got the legal estate from the heir, they must prevail against the creditors.
    Nor does the deed alter the case; because the resulting interest for creditors and purchasers descended on the heir, who might lawfully convey it: For the mortgage, which is a sale pro tanto, is good, although the heir will be liable to the creditors for the value of the alienations. This position, evident in itself, is particularly true in the present case; Because it is in his character of heir that Richard Randolph is sued. Which indeed was absolutely necessary ; for in any other mode he would not have been liable; nor could a suit in any other form have been maintained against him; because the statute only renders dev-isees liable; and as he was not a devisee, if the deed be void, and the same as if never made, he must be liable as heir or not at all.
    The mortgagees therefore have got the legal estate; and the Court will not take it away, from them, in favour of the other creditors who have no superior equity.
    Duval on the same side contended that Richard Randolph the son was a bona fide purchaser of the estate, and therefore would not be affected by implied notice of the judgments: 1 Eq. cas. ab. 354; 2 Eq. cas. ab. 682; 1 Ca. ch. 37. That the re-acknowledgment of the deed was sufficient; or if not, still it would operate as a covenant to convey; or if the deed was void, that the fee ^descended on the son, who might fence against the creditors with the equity arising out of the contract. Upon which points he cited Shep. Epit. 273, 407; Cro. Eliz. 217; 2 Eq. cas. ab. 683; 1 Eq. cas. ab. 358. That the judgments were not a lieu after the year aud day; for the negligence of the creditors will postpone them. Besides, as to some of the lands the judgments never did affect them; because they were purchased by Richard Randolph the elder, after the rendition of the judgments. In support of these propositions he referred to2Eq. cas. ab. 684, 362; 3 Atk. 273, 357; 2 Inst. 470; 2 Salk. 598; 2 Bac. ab. 343, 362, 364, 596; Rol. '470; Cro. Jac. 424, 477; 2 Hugh ab. 790, 893; 2 Mo. Ent. 390, 391.
    Hay. for the appellees. Made four points. 1. That Wayles’ executors were creditors by bond. 2. That the judgments were a lien on the lands. 3. That the deed was void as to creditors. 4. That the deed to David Meade Randolph was not for a valuable consideration. Which observation, he said, also applied to that of Richard Randolph junior, for the Curies estate.
    As to the first point:
    The effect is the same, as if Bevins himself had sued; for the debt was originally due by bond; and if the money had been paid by a person not security thereto, and he had taken an assignment of it, he would have been a bond creditor. So if the executors of Wayles had had it assigned to a third person for their use; because a Court of Equity would not have permitted the defendants to plead the payment. If bond creditors are satisfied out of the personal estate, the simple contract creditors shall have payment out of the real: Which is more than what is contended for here. Because there the satisfied bond is revived in favor of another person; but here it is only asked that the same bond may be made effectual in favor of the representatives of one who was origirially *a party to it; and this for the benefit of the security too, which is a favorable case.
    As to the second point:
    If the judgments gave a lien, when in force, they will when revived. There is no necessity for taking out execution, but the plaintiff may continue the entry on the record, 2 Bac. ab. 362; and therefore the lien attached notwithstanding the subsequent alienation of the land. The Stat. 13' Ed. 1, which gave the scire facias makes no other difference in the common law, than merely to continue the execution, and enable the plaintiff to carry the judgment into effect at a later time than he could have done at common law. So that, upon this statute execution may go at any time, if the notice mentioned in the act is given ; and therefore, upon Mr. Call’s own ground, the lien continued as the execution might be issued. If the plaintiff sues an elegit, although he never executes it, or makes an entry on the roll, the lien will continue and he may defeat a future sale. Therefore the argument, on the other side, goes to prove, that there is a difference between a judgment revived by the law, and one kept alive by the party himself; which cannot be true. The scire facias is but a mere judicial writ; and the entry is, that the plaintiff may have execution of the judgment; upon which no damages are given. So that to every intent it is but a mere restitution of the original judgment and its consequences. Of course, if it ever was a lien on the land, which is admitted, that lien remains unimpaired.
    As to the third question:
    The deed not having been recorded within the time prescribed by law is absolutely void; or else the ways of law, like The ways of Heaven, are dark and intricate, puzzled with mazes, and perplexed with errors. The re-aclmowledgment has not the effect which has been contended for; because *the act is that the recording of the deed shall take place within eight months from the sealing and delivery; which means the original sealing and delivery, and the subsequent re-acknowledgment is vain and ineffectual. Shep. touch. 69. If the deed had been delivered up to be cancelled, it would have been good; but this was not done in point of fact; and therefore the defendants must contend, that it was a surrender of the old deed to be cancelled. But that position cannot be maintained; for the fact is not so; and the re-acknowledgment only amounts to a confession that he delivered it on the day of the original date: Whereas a new deed implies the contrary; for a new deed respects time future only, but the old deed comprehends also the interval of time between the date of the old deed and the re-acknowledgment. That the re-acknowledgment is vain is clear from Perkins Sect. 154, who savs, “It is to be known that a deed cannot have effect at qvery delivery as a deed; for if the first. delivery take effect, the second delivery is void. As in case an infant, or a man in prison, makes a deed, and deliver the same as his deed, &c. and afterwards the infant when he cometh to his full age, deliver again the same deed as his deed which he delivered before as his deed, this second delivery is void. But if a married woman deliver a bond unto me, or other writing as her deed, this delivery is merely void; and therefore if after the death of her husband she being sole, deliver the same deed again unto me as her deed, the second delivery is good and effectual.’’ This doctrine, which is confirmed by Lord Mansfield in Goodright v. Straphan, Cowp...204, proves, clearly, that a re-acknowledgment, where the first delivery has actually had effect, has no operation. But in the present case the original execution and delivery of the deed had full effect, and therefore the subsequent «-acknowledgment was void. It is said, indeed, that no estate passed until the deed was recorded; but, *by the express words of the act, the deed is good between the parties: Which completely answers the argument. When the deed was re-acknowledged the estate was already in the grantee, and therefore the only effect of the doctrine, contended for on the other side, would be to give a longer time for recording- the deed than the law allows. But if the re-acknowledgment would have been good, between the parties themselves, as a new deed; yet, the positive words of the law had already operated on the old one, so as to avoid it in favour of the creditors; and had put it out of the power of the parties to defeat them by any act of theirs.
    
      As to the fourth point:
    The question is if this princely provision by a father for his son shall be good against creditors? There is no decision in .this state which supports the claim set up in favor of the son ; and the welfare of the country is certainly opposed to it. The deed itself shews him to be a mere volunteer, and if it was for a valuable consideration he ought to prove it. Even marriage is not shewn to be the consideration. The letter of Thomas Mann Randolph, which says that he would consent, if Richard Randolph the father would give his son David Meade Randolph an estate and put him into possession of it, does not alter the case. For if a father conveys an estate to his son, without any previous treaty it would be clearly void ; and then the question is, whether there was a sufficient communication in the present case? The letter states that the writer will consent, if the estate is given; but it does not appear that Richard Randolph the father was at all moved thereby. For in his letter to his son David he takes no notice of it, but appears to have acted from parental tenderness only. His language is, that he had long intended to give him the estates. So that he, in fact, only gave it at one time instead of another. The deed was written under the direction of Richard *Randolph and only states affection and advancement. Thereby plainly proving, that he did not act under the idea of a contract, but from motives of affection only. Consequently unless it could be shewn, that if a father makes a conveyance because his son is about to be married, it will be good against creditors, the defence in the present case cannot be supported. For it makes no difference that Thomas M. Randolph required it as a condition; since it does not appear that the requisition had any effect, upon the mind of Richard Randolph. Besides, the letter did not ask a settlement on the wife; but merely on David himself; so that the interest of the wife does not appear to have been contemplated. If it had required a settlement on the husband and wife, and the conveyance had pursued the requisition it might be argued from; but here was nothing to shew that any regard was paid to the wife; and although Thomas M. Randolph might have intended her benefit, he did not say so; and, Richard Randolph was not bound thereby, if he had. Richard Randolph was largely indebted at the time, and Thomas M. Randolph, who was his security in one instance, knew it. His object therefore, was to put the property out of the reach of the creditors; and consequently, as to them the transaction was void. But, if that was not the motive, still it was voluntary, and therefore of no effect against creditors. So that either way the conveyance forms no defence against the creditors. Richard Randolph perhaps acquired credit on this very property; and therefore the creditors ought to be satisfied out of it: Especially as David shews no settlement; but may do as he pleases with it under the deed, and may totally deprive the wife and children of it. Therefore, if marriage be a sufficient consideration against fair creditors at all, yet, as it is not shewn to have Been the consideration of the present deed, it will not avail the defendants in the case before the Court; but this *property as well as Curies, will be declared subject to the demands of the creditors.
    Warden, contra.
    Spoke to the same effect with Call, arid cited in addition Com. Dig. 63-4; Cro. Jac. 52.
    Marshall, for the appellants.
    '1. The executors of Wayles are not specially creditors. For the original debt has been paid to the obligee and no action to recover it, is sustainable at common law; because the bond having been paid off, and not assigned, lost its obligation. It is not true that the executors are in the place of an assignee; for the assignment preserves the bond, but the payment destroys it.
    The principle that the court goes on, in the case of marshalling assets, is not correctly stated, by the opposite counsel; for it is not that the specialty debt, is revived in favor of the simple contract creditor, but that the specialty creditor, having two funds, has contrary to equity, taken the personal estate from the simple contract creditor, and thereby let the real estate which ought to have contributed, go quit of bearing any proportion of the debts. An act which operates as a fraud; because it relieves the land that was justly bound, to the prejudice of a fair creditor, contrary to the rule of equity, which- uniformly compels the party, having two funds, to resort to that, which does not interfere with the claim of him, who has but one. But that is not our case; For this is not a question concerning the unjust exercise of a right against two funds: but whether a man, who has paid off anothers debt, without taking an assignment of it, shall be permitted to the prejudice of third persons, to revive the debt which had been extinguished by his own act? It is therefore not within the principle of marshalling assets.
    Moreover that principle is never applied to affect a purchaser; because he has as much equity as *the claimant, and he has the law besides. But, in this case, a Court of Equity is called on to assert, to the injury of fair purchasers, a principle invented for the sake of effecting justice. An attempt contrary to the nature of that court; which alwa3’s refuses to act when injustice would follow from it. But in the present case the plaintiffs had at most only an equitable claim; and therefore it would be monstrous to set it up, after it had been extinguished, in order to avoid the mesne acts of others.
    The question has a great resemblance, in principle, to the case of old incumbrances in the doctrine of mortgages. For, there, an old incumbrance will protect a latter mortgage, if it has not lost its legal force; but, if it has lost its legal effect, it will not, Pow. Mortg. 215. So in this case the bond, if it had not lost its legal effect, might have availed the plaintiffs; but having been paid off, by one of the obligors, its legal force is gone; and therefore the executors can only be considered as simple contract creditors.
    
      2. The judgments are not specific' liens on the lands.
    At common law lands were not bound, and the lien is only in consequence of the statute; which does not bind them, in express terms, but’ only by implication. The lien is a mere creature of the Court, resulting by construction from the election given to the creditor by the statute; and therefore the Court will never extend it beyond the limits of public convenience. No case has been produced where lands conveyed after the year and day were held to be bound; nor indeed can such an inference be fairly drawn, when there is no right to take an execution. Ror the lien is predicated on, and is only co-extensive with the right to take execution. If the case be taken by analogy to real actions it is clear. Ror in those the lien is gone when the right to take *execution ceases; which is. the same principle contended for, in the case now before the Court.
    It is said that the' scire facias revives everything. But .that can only be where the right is continuing; for it cannot retroact upon a mesne act, where the right has ceased. The statute which gave the scire facias does not say it shall overreach mesne acts; and the. lien is gone before the scire facias becomes necessary.
    The. argument, that the scire facias is a judicial writ, and that a release of . the execution will discharge it, proves nothing ; for it will also be released by a release of all actions; and therefore it may as well be called an action as an execution. Relation is fair between the parties; but it would be iniquitous, that it should have effect, against third persons; and accordingly it never does., unless, .in favour of one' who has a superior equitable or legal right. Suppose a legal title extinguished, and af-. terwards revived, would this revival avoid the mesne act against a third person, whp had innocently acquired a title in the mean time? It would be shocking that it should; an.d the law would never countenance such’ injustice'. Vet that is the amount of the principle contended for, on the other side.
    It is said that since the statute, .if notice is given, execution may go ,at any time. But this is contrary , to . all practice; the statute never was so understood; and the mischiefs of such a . doctrine, ' to creditors and purchasers, would, be incalculable.
    It is not true that there is no difference between the case at bar, a’nd one where the plaintiff continues his elegit on .the roll. Ror the continuance is a notice to" the, world, as much as the original, judgment, and of itself imports that the judgment has not been satisfied; whereas, when .no further steps are taken, it affords a presumption that the judgment has been satisfied.' This ^doctrine is applicable to all the judgments; but as to those of York Court it' is entitled to still greater weight. . Ror, as it is the case of a lien by implication mérely,’ it will not be extended, by the court, to all judgments indiscriminately. ■
    Generally speaking when the law obliges a man to take notice of any act, it affords the'means of doing it. But how can'that take place, in the case of County Court judgments? Ror the County Courts are so numerous that no prudence or industry could enable a purchaser to guard against them. No'matter how many transfers may have taken place; no matter how many years may have elapsed since the judgment was rendered; no matter how many precautions may have been taken to guard against injury, the judgment would overreach them all, and bind the lands in the hands of the innocent purchaser. So that the shackles on property would be infinite; especially, when it is considered that judgments are always docketed in the names of the plaintiffs and not of the defendants: A purchaser therefore, before he could venture to contract, would be obliged to search through all the judgments of all ■ the courts in the country. A labour which would‘be endless, and the pursuit intolerable. '
    The true idea therefore is, that the lien should be confined to the same courts, which the law requires the recording' of deeds to be confined to. So that a man 'should not be obliged to search further for á judgment than for a deed: Especially as the Legislature by the record laws meant to favour and secure purchasers; and therefore the court ought not, by mere construction and implication, to .ráise up’ an inference,' entirely contrary to the spirit • and intent 'of those laws; but on the contrary should promote the object of the Legislature as much as possible. It is not to be believed, that the Legislature could intend that the implied lien'should extend every Where, when the express lien was confined to certain limited jurisdictions. ^Because the danger from implied liens, was much greater than from express liens, and therefore' more to be discouraged.
    But the' necessity o'f a scire facias against the'terretenants is decisive;'for there could be no such proceeding where the lands lay in' another ' county; and therefore as the terretenant could not be brought before the court,' the lien could not be'' revived by the scire facias. In such a case there can be no inference of notice; because the lands could not.be reached in the' ’h'an'ds of the terfetéhants, between whom and the creditor there Is no privity'; although it may be otherwise as to the heir' on- account of the'privit3 between him and the creditor.
    Therefore whether the principles of the common law, the object of the Legislature, or'the reason and convenience of mankind be consulted, it Will be found to be true, that the judgments constitute no lien upon the lands in the present case. ' !
    3. There is no question, but that the policy of the record laws may be as well answered, by’ allowing a re-acknowledged deed to prevail, from the time of its re-acknowledgment, ás by allowing an entire new deed to have effect from its date. This position has been stated by us, and has not been answered by the counsel for the ap-pellees. Nor indeed can any just answe'r be given to' it. Ror, in both cases, not moré than eight months will elapse between the acknowledgment and the recording of the deed; and .that is all which the policy of the law appears to have required.
    But, forsaking this point, the counsel for the appellees insists that the act of Assembly is express, that it shall be recorded within eight months from the execution of the deed, and that a plain man would necessarily so understand it: Therefore he concludes that a second acknowledgment will not supply the omission. He admits however, that if '"the deed had been given up to be cancelled and then had been re-acknowledged, it would have operated as a new deed: Which is not very consistent with the other position contended for by him, that nothing could pass by a subsequent deed; or with the words, of the act of of Assembly, according to the construction which he puts upon them. Por how, in the case he supposes, would the estate get back to the grantor, or how could he have any thing for the second delivery to operate on, if the whole was out of him? This very admission necessarily proves that the grantor has an interest, which be may grant, so as to be effectual against creditors from the second delivery; or else the new deed would have no effect at all; which is contrary to the terms of the admission.
    It is said however, that the re-acknowledgment was no delivery. But for what purpose was it made then? Certainly the intention was to deliver; and here the evidence is express that it was delivered on the date of the last acknowledgment. Besides there ought to be positive evidence of the first execution of the deed ; .and I submit it to the court whether that be proved or not.
    But it is argued that if the re-acknowledgment be a second delivery, that still the second delivery was void and Perkins and Cowper are cited in support of the position.
    The case in Cowper was that of a re-delivery by one, who was a feme covert at the time of the original delivery, but sole at the time of the re-delivery; and, if it proves any thing, it rather supports what we contend for; because it was decided there, that the re-delivery amounted to a confirmation, and that circumstances might amount to a re-delivery. The same argument would apply, with equal force, in the present case, as the first delivery has been rendered void, as to creditors and purchasers, by the statute.
    *The passage in Perkins is of a case where the first delivery takes effect; but we insist that the estate in the present case remained in the grantor, as to creditors and purchasers; and therefore that the second delivery did operate. Por our law is like the English statute of enrol-ments, and therefore as against creditors and purchasers the estate does not pass out of the grantor until the deed is recorded. But it is said that the 4th section makes a difference; because by that the deed is to be good between the parties. The cases cited though, prove, that to be nothing more than the English Judges had, by construction implied before; and it was probably inserted, in our statute, in conformity to their decisions. The only difference therefore is, that in England the Judges declared it to be good, between the parties, upon principle and construction ; but in this country the act of Assembly, pursuing the course of their decision, has declared it so in express words. If this reasoning be correct, then Hindes case 4 Co. shews that there may be a second delivery, which will not only confirm the estate between the parties themselves, but will be effectual as .to every other purpose. Indeed the contrary doctrine would be intolerable; as, according to that idea, a defective deed could not be made effectual by any conveyance. There is no similitude therefore between the case in Perkins and that under consideration. Por Perkins supposes a case, where nothing remained in the grantor; but here we prove an existing interest which he might part with; and if he could grant it at all; he might as well convey it to his own grantee, as to any other person.
    It was said that according to this argument a judgment between the date and recording of the deed would be good against the grantee; although the deed should be actually recorded within eight months from its original date. But that position is not found; for the judgment would by relation, be over-reached by the recording of the deed *according to the doctrine in Hindes case, as there vrould be no injustice in it. Por as the first purchaser would have the first right in equity, no injury would be done to those whose rights were subsequent to his. Prom all this, it follows, that the re-acknowledgment was clearly good ; and therefore that the creditors cannot affect the lands.
    4. But the mortgagees have clearly the first right; because they had both titles, that is to say, the title under the deed, and that by descent.
    Por 1. Their case resembles that of the alienee of a devisee, whose right will be good against creditors, although the devisee himself continues' liable to them. Por the statute of 3 W. and like our act for recording deeds, expressly declares that the devise shall be void against creditors; but nevertheless the title of the alienee of the devisee is good, and the estate cannot be touched in his hands, Mathews v. Jones, 2 Anstr; Rep. 506. In that case it was expressly argued, that the devise being void as to creditors, nothing passed by it, as against them; and of course that the dev-isee could convey no estate to their prejudice. But the Court unanimously held, that the devise did pass the estate so as to enable the devisee to alien, and that he would only be personally liable. The same doctrine applies to this case; Por the conveyance here will be good except against creditors, and the alienation by the grantee will be good, altho’ the grantee will be personally liable to the creditors. Por the two statutes are equally strong and the principles precisely the same. Before the record laws in this country, the alienation would have withdrawn the land from the creditors here, in the same manner as the devise there ; and of course, if the alienation of the dev-isee there will prevail, so will the alienation of the grantee here.
    But 2.. If this doctrine were not true, then the consequence inevitably would be that the title of the mortgagees under the lien must prevail. Por if the conveyance is void altogether, then it is the ‘same thing as if it had never been made, and in that case Richard Randolph must, as to the creditors, take as heir necessarily. But, if he took as heir, then the mortgages by him are certainly good. Because alienations by an heir are good, although he is liable to the creditor for the value. But a mortgage is so far an alienation ; and therefore necessarily good.
    5. The conveyance to David Meade Randolph is not liable to exception.
    It is in vain to argue, that a considerable property has been conveyed, without any valuable consideration paid for it. Such an argument may be proper to the Legislature, but not to the Court: As it is no longer a question, whether a conveyance, in consideration of marriage, be sustainable or not. Eor the law is settled, that such a conveyance is good.
    But it is said, that a voluntary conveyance to a son, about to be married, is void. As that however, is not the present case I will not say whether the position be correct or not; but there are some cases which might make it very doubtful. As for instance in the case of the East India Company v. Clavel, 2 Bac. abr. 607; Prec. ch. 377, where A, agreed with the East India Company to go as president to Bengal, and entered into a bond of ^2000. for performance of articles: but before he set out he made a settlement of his estate, and among other things he declared the trust of a term of 1000 years to be for the raising of £5000. as a portion for his daughter, who afterwards married I. S. a gentleman of ^700. per annum, who before th'e marriage, was advised by counsel that the portion was sufficiently secured, and who afterwards on her death, had at her request expended ^400. on her funeral, but never made any settlement on her; and A. having embezzled the goods and stock of the company to a considerable value, the question *was, whether this settlement was voluntary and fraudulent as to them; and it was held to be a prudent and honest provision, without any colour of fraud; and though in its creation it was voluntary, yet being the motive and inducement to the marriage, it made it valuable. This case and others which might be mentioned seem to refute the position advanced on the other side; but, deeming it altogether unnecessary, I shall not go into the argument of that point now. Because an express marriage contract has been proved in our case. The letter of Thomas Mann Randolph and the depositions of Richard and Harry Randolph, shew that the marriage was suspended until the conveyance was made. The letter of Richard Randolph the father to David was clearly intended as an answer to that of Thomas Mann Randolph. Eor, in it he says that he had been looking out for an estate, ever since he heard of his addressing the lady; and that, in consideration of the marriage, he would give the property. The conveyance was the real ground upon which the consent of the lady’s parents was obtained; and without it, the marriage would not have taken place. So that. it is much stronger than the case of the India Company v. Clavel; because here was an actual treaty for the property, but there was none in that case. To which may be added that without the marriage David Meade Randolph could not have compelled a conveyance.
    It is objected though, that he also says, he intended to give him the same property before. But can that destroy the claim arising from the marriage? Surely not; for it is saying no more than was necessarily implied: because, before he would enter into the agreement, he must have been previously disposed to give the property. So that the objection does in fact amount to no more than this, that a man who is disposed to make an agreement ought not to make it, because he was previously disposed to do so.
    *It is said however that the letter from Richard Randolph to David M. Randolph does not refer to that of Thomas Mann Randolph. But the contrary is expressly proved. Besides, if it removed the objections of Thomas Mann Randolph, it was the same thing.
    Another objection raised is, that the conveyance is to David Meade Randolph, and not to his wife. But so was that in the case of the East India Company v. Clavel; and yet the settlement was held good. Besides the estate contributes to the benefit of the wife and her family; and the husband cannot deprive her of her right of dower in it. So that she in fact is benefited by it. In the common cases of settlements on marriage the remainder is generally limited to the husband and his heirs; Which, according to the doctrine contended for by the opposite counsel, would be void; but the marriage has always been considered as protecting the whole settlement.
    It is urged, that it is mockery to say, that the letter turned him into a purchaser. But in point of law it does; and although he may afterwards defeat the provision, by squandering or alienating it away, that will not alter the case. Eor there is a confidence that he will keep it; and as the object was the ease and comfort of the daughter and children, that end was thought to be sufficiently attained by the conveyance to the husband.
    But a singular objection is raised, namely, that Thomas Mann Randolph must have known of the embarrassment, under which the affairs of Richard Randolph were, at that time. Now, besides that such knowledge is not necessarily to be inferred, from any proofs in the cause, it cannot be contended that that circumstance would make any difference in law. For most marriage settlements originate from apprehensions of that kind; and therefore the knowledge instead of operating against the conveyance would rather strengthen it. Because Thomas Mann Randolph would not have ^permitted the marriage without it, and the testimony expressly proves that to have been the consideration of the conveyance. The words of the statute of Eliz. are not opposed to this doctrine; in which nothing, relative to such a case, is said: Nor indeed does that statute render even mere voluntary conveyances void, unless made to deceive and defraud creditors. 1 Eq. cas. ab. 149. But that is not important to be inquired into in the present case; because here was a sufficient consideration in law to support the conveyance.
    
      As to the form of the deed, it is to be remembered, that Richard Randolph the father had not got the legal estate conveyed to him, as to part of the lands, when the marriage contract was entered into, but David procured it afterwards; and therefore the argument contended for, with respect to the form, does not apply, as to that part. But, independent of that, if the deed does not secure the estate according to the terms of the agreement, then it is contrary to the contract, which the court will consider as still standing, and controuling the deed.
    Randolph on the same side,
    before Wickham began, stated that articles in the form of a deed would be good. 1 Wms. 339; Pow. Contr. 432, 334. That if the deed was improperly recorded the court might still order it to be done so as to have the effect intended ; and that the consideration might be averred in the case of David Meade 'Randolph. Upon these points he cited, 1 Wms. 339; Pow. Contr. 432, 334 ; 3 Term rep. ; 1 Gb. cas. 37.
    Wickham for the appellees.
    The judgments bind the lands; for all judgments give a lien ; and it is not important whether this be a rule of the common or statute law : Although it may perhaps be affirmed that the lien existed before the statute; as there was a levari facias against the issues, which Lord Coke says are the land itself. However, whether it proceeds from the common *or the statute law, it is equally clear, that it extends to all the lands; as well those, owned at the time of rendering the judgments, as those acquired afterwards. 10 Vin. ab. 563. But it is said that the judgment only binds for a year; and Gilb. law exns. 12 is relied upon. That book though, speaks of the law before the statute which gave the scire facias; and in a subsequent page it states a different rule. It is said that there is no instance of a lien where more than a year has elapsed. But the argument of Mr. Hay is just, that the scire facias merely revives the judgment itself. The precedents, to that effect, are numerous; and the general doctrine is contained in 3 Co. 13, (b). And if analogy be attended to, it will be perfectly clear. Por instance, if the debtor die, still the lands are bound in the hands of the heir, notwithstanding the necessity of a scire facias. Of which many cases may be produced; and although writs of a scire facias, to ground the elegit in the debtors life-time are more rare, this is owing to there being no necessity for actually issuing the elegit in that case. 4 Bac. abr. 412.' But if there be a lien notwithstanding the necessity of a scire facias in one case, why not in another? Perhaps it will be said that the election should be made within the year. But that is not so; for he may do it when he will. Against the heir clearly; and therefore against the terre-tenant. Because a scire facias may issue against the heir and terretenant jointly; 4 Bac. ab. 418. It is said that the scire facias is necessary, because the judgment is presumed to be satisfied. But that is only prima facie; and therefore, when the writ has issued, the defendant must plead and prove payment. The right to execution exists at the time of the scire facias, for the very writ supposes it; and the issuing of it is only required, in order to give the defendant an opportunity of proving the payment. It is said that a scire facias is released by a release of all actions; but a release of all executions has the same effect. *Which proves that the judgment is the principal, and that the scire facias is but auxiliary, and partakes more of the nature of an execution. The case cited from Vez. is not material; because possession is evidence of property; and therefore creditors and purchasers are liable to be deceived; but lands always depend upon title, and igrorance of the plaintiffs right is no defence. That the lands lay in another county will make no difference; for still they are bound; in the same manner, as in the case of a fieri facias; by which the property is bound from delivery of the writ to the officer, although the goods be in another county. The inconvenience of the doctrine has no weight in a Court of Justice, however proper it may be to the Legislature; for inconvenience never is allowed to do away a positive right. Wilson v. Rucker in this court the other day, was a strong case to that effect. As to the charge of neglect it ought to have no operation on the question. For the judgments were originally entered as a security for the money, and that payment was urged appears by the letters: Besides that, the fee bill soon after expired, and some of the plaintiffs were British creditors and could not sue. It is said that there could be no scire facias into another county; but there is a difference between issuing and serving of the writ. For a return of two nihils would be sufficient; and no venue was necessary, as was supposed. Neither is there any difference, in law, between the case of one who seeks to make gain, and one who seeks to avoid loss. There is no reason for confining the lien, according to the restrictions of the record laws. For although it may be difficult, for the purchaser to know, whether there be any judgments against the debtor, it is not impossible; and therefore the rule of caveat emptor applies, For he should buy of one who is able to give a good title, or a sufficient warranty. The case from 1 Ch. cas. does *not apply; because that was a case in equity; but the present case is to be considered, as if it was in a court of common law.
    Wayles’s executors are bond creditors. For at the time of bringing the suit the bond was not satisfied; and therefore the obligation was then actually subsisting. It is said however, that the principle of marshalling assets depends upon the specialty creditor having two funds, and being, therefore bound in conscience to go against the realty, in order that the simple contract creditor might be satisfied out of the personal estate. But specialty creditors may resort to which fund they please; and equity puts the simple contract claimants in their stead, if they go against the personal estate instead of the lands. Of course, if the deed is void, the executors, as specialty creditors, may charge the lands. Por the court can with the same propriety put them in the place of Bevins, as the simple contract creditors in the place of the bond creditors in the other case. ..If there be a difference it would seem to .be in favour of the executors in-the present case'; because of the privity between the parties.
    The deed for the Curies estate is clearly void against creditors. The words of the law are express and clear; and no abstract reasoning is either necessary or proper in order to explain it. The policy of the law was to prevent secret convej'ances; but the ■construction contended for, on the other side, tends to encourage them and to elude, the law. The second ■ delivery of the deed was clearly void Shep. Touch. 7-2, 60; and, if there be no proof to the' contrary, the inevitable presumption is, that it was executed upon the day on which it .bears date. Here then was a. complete delivery, and from that time the whole estate was out of the grantor, who had nothing- to gran.t after that; and therefore, according to the authority, the second delivery was merely-void. There is a wide difference between a re-acknowledgment, fand a new deed after the first is cancelled; for in the latter case the estate is gone, back ■from the grantee, who no longer hath any. thing in the land; but in the other- case he has. the whole estate in him still. The .case is not like the statute of enrollments ,in England; because there the statute is positive; that .the estate shall not pass . until the enrollment. -2 Bac. abr. 338, But our act of Assembly is expressly- otherwise; and, in effect, declares that the estate shall instantlj* pass to the grantee.' As to the argument derived from, what is called the custom of the. country, it is entitled .to no weight; -for a custom, how,ever general, cannot change a positive law; but the truth is, that the custom spoken of'is more general in the. case where the eight, months have actually expired, - than where, as in this case, the' re-acknowledgment was before the expiration of the eight months. ■ .
    Beverley’s articles -will not help the appellants. . -Such a decision would repeal the act of Assembly, which expressly requires that all such contracts shall be recorded; and although the two Randolphs may have practiced a fraud upon him, that will not alter the case, or destroy the, effect of the act.
    The claim of the mortgagees is no better than that of the other appellants. To en-. title them to any preference they should have been purchasers without notice; which must ,be plead and cannot be affirmed at the hearing, Mitf. Plead. 215; 1 At-k. 571; 1 Bro. Chy. ,353.. That Richard Randolph' was heir to his father, makes no difference; because the descent was broken. The case, cited from Anstruth. proves nothing in favor of the appellants. Eor before the statute, the heir was only liable for the lands remaining in his possession at the, time of; the suit, but as to those previously aliened he was exonerated; and as the statute only put the devisee on the same footing with the heir, it followed, that, the ' lands which were aliened, ^'before .the suit brought, did not remain liable in the hands of the alienee.
    As to the case of David Meade Randolph, it is on the face of the deed a voluntary contract; and as the evidence is not positive we must recur to the deed itself; especially as the deed and evidence do not agree together. The case cited from 2 Bac. 607, was different from this; because there the father was not indebted at the time of the settlement, as was the case in the present instance. The deed was before the marriage, and yet the wife is not made a party, which increases the difficulty of admitting that the marriage was the foundation of the conveyance. Eor there was nothing to protect the= wife’s interest, and the husband might have sold the estate before the marriage, so that she could not eyen have been endowed. The case in 1 Eq. cas. ab. 149, cannot be law, according to Mr. Marshall’s construction; but perhaps it was.only a mere abstract principle advanced by the court. These lands therefore, as well as the others, are liable to the creditors.
    Randolph in reply.
    The deed to Richard Randolph is good. Eor marriage is a favorite consideration in law; and when' the grantor made the deed he supposed himself in affluence.: To which I add that his will shews he possessed a very large estate still. It is no objection that an express estate is not given to the wife,- by the deed; because it is all that Mr. Beverley demanded. Besides the right of dower, with the comforts resulting from the affluence of the,husband, were real advantages to- the wife; and .the deed contains a restriction as. to alienation, in case of ,no heirs, that looks as if the children were contemplated. In- addition to which there .was . a real monied consideration. All which .puts the motive for the deed beyond all question.
    But then it is said, that the deed was not recorded within eight months.from its original deliver3r; and that the re-acknowledgment only amounts ■ *to a confession, that he had originally delivered it, but does not operate as a new delivery. This however would be, to suppose. that the parties meant a weak and absurd thing; and therefore no such presumption will-be made; but-it will be considered as a new delivery altogether.
    It-is said though that there cannot be a double delivery of the same deed. But no substantial reason, is, or can be offered for the position; because .there.. is nothing which prevents the grantee from giving up his deed, and the grantor from regranting the estate to him. The doctrine from Shepherd and Perkins is not against us; because those authors proceed upon the idea of a re-delivery only. But there is a very material distinction, according to the opinion of Eord Mansfield in the case cited from Cowp. 2Ó4, between a mere ré-delivery and a re-execution of the deed. In the present case, there was not only a re-delivery, but a re-attestation and re-execution also. Eor the time . of the re-delivery is expressly noted • on the deed, by the witnesses, in order to shew when the attestation and re-execution- took place,; -so as to remove all doubt, that it was intended to operate, as a new deed. Put the case that, the old date in the deed had been erased and. the new date inserted in its room, it would clearly have been good. But what was done, was essentially the same thing. Ret us suppose a case which may and does very frequently happen, that all the witnesses do not attest at the same time: In that case, according to this doctrine about double delivery, the deed would not be well proved. But surely the court would not endure such a position. Shepherd puts three technical cases, which he probably took up from mistake ; and one of the year books does not warrant his inference. A circumstance tending greatly to weaken his authority. Besides the doctrine was before the statute of enrollments, and no instance is produced since. If any circumstance prevents the grantee from having his deed recorded, he may file a bill in *equity and compel the grantor to make a new deed; which will be good against subsequent purchasers, and all creditors who had not made their claims effectual, before the institution of the suit. But if he may be compelled - to re-execute, why may he not do it voluntarily?
    The case is peculiar to Virginia, and consequently the custom is very material. Tor it is a custom known to every body; and in practice every where. Such universal usage should therefore make the law; and in fact the question never was made before, but the practice considered, by all ranks of men, as founded in the law of the land. It is therefore like the case of the scroll instead of the seal, or that of omitting to indent, or many of the decisions of our courts upon the law concerning the office of executors and administrators: None of which have any better foundation perhaps, than the long established practice of the country; which the case, cited from Rolls abridgment, proves should give the rule in such cases. Besides it' - is remarkable that this practice was in use at the time of passing the law; and therefore the presumption is that the Legislature intended to conform to it.
    There is no weight in the objection that the re-acknowledgment was before the expiration of the eight months; for it does not open any door to fraud as the opposite counsel supposes: Because that is more presumable in the case of a re-acknowledgment after the eight months have expired; whereas the other shews an honest intention, by making use of a timely precaution. In the present case, it was particularly so; 1. Because it was on the day the grantor made his will, and when he lay ill and feared he could not be got to court. 2. Because it was discovered that the witnesses could not be produced at court, within the eight months. So that there was a necessity for it from both causes; and consequently, there is not the least room to suspect a fraud. The cause *therefore stands in the same situation, as if the old deed had been destroyed, and a new one made; in which case, as the title on the destruction of the old deed would have been in the grantor, he might unquestionably have regranted it by the new one to whomsoever he pleased.
    That the marriage was prior to the re-acknowledgment makes no difference; because the old consideration, which was the-motive to the deed, continued. Indeed, in. support of the real justice .of the case, the court would now permit it to be recorded nunc pro tunc. 1 Wms. 140; 2 Vern. 234, S64.
    The deed to David Meade Randolph cannot be impeached. Tor there was an immediate communication between Thomas Mann Randolph, the father of the lady, and Richard Randolph, the father of the husband ; in consequence of which the letter to David M. Randolph was written. So that the marriage was the positive, pointed consideration of the deed. It is not material that Thomas M. Randolph did not ask for any specific property; for he required a competent provision for the son, so as to-enable him to maintain his daughter in comfort; and that was given.
    Nor was the act fraudulent either upon, intention, or upon the principles of law. Not upon intention ; because at the time the grantor thought himself rich; and there is, not a syllable of testimony to shew that the two fathers meditated any fraud. On the contrary it is not even shewn, that Thomas Mann Randolph knew of the declining circumstances of Richard Randolph. But suppose he had, it would not influence the question. Tor he would still have had a right to have insisted on a settlement :■ Indeed prudence would have the more-strongly dictated it upon that account; and that; in fact, is very often the reason, why settlements are demanded. Therefore upon no legal principle can a fraud be inferred j but as the letter, which is expressly proved by the witnesses, ^'demonstrates, most clearly, what was the true considération of the deed, it will be received in support of it.
    The judgments do not constitute a lien upon any of the lands. Tor at common law judgments did not create a lien; and the levari facias does not prove any thing to the contrary; for that writ had other objects. The lien therefore was the mere consequence of the statute of Westminster which confined the Tlegit to the King's Courts; and therefore to courts of general jurisdiction, like our old General Court. So> that a County Court judgment is not within the reason of the rule. Indeed any other construction would be intolerable: It would introduce inconveniences too great to be borne; and as there is no positive 'aw which says that there shall be a lien created by such judgments, there can be no reason for abiding by a rule which was intended to apply to the judgments of Courts of another kind.
    But it is said that the act of 1772 giving a general execution produces the same consequences.
    This however is not correct in any case ; and certainly not in this. Tor no application appears to have been made for executions, and the act clearly supposes that to be necessary. However, be that as it may, the neglect forfeited the right, if the plaintiffs, in the judgments, ever had any. Tor the judgments were suffered to expire, without afty excuse being made for it; and therefore they ought not afterwards to affect the right's of third persons. Gilb. 1. Tx. 12, is extremely applicable. Tor the case of a judgment in a real action is stronger infinitely, than a judgment for debt; because in the former the land is specifically recovered, and therefore the purchaser more bound, in conscience, to enquire concerning it. The negligence in the present case has been gross; and therefore ought not to affect innocent purchasers who had no cause to suspect a lien; because it is contrary to natural justice that such negligence ^should be encouraged, Chan, cas. 36. The case cited from Vez. contains a very just principle; and there can be no difference between real and personal property in that respect. For in both instances the delay was equally prejudicial; and therefore the rule as to one, will hold with regard to the other.
    The case cited from Bacons abridgment, relative to taking an Flegit, nunc pro tunc, does not apply; because it is a mere fiction of law, which never is allowed to produce an injury to those who have acted fairly, if the others have no superior equity. The scire facias is only a substitute for the action of debt which was the common law proceeding, and as the lands would only have been bound from the last judgment in the action of debt, no more would they in a scire facias. If all County Court judgments are to bind, the impossibility of getting notice, will create a disability, which will clog all alienation.
    Wayles’ executors are not bond creditors; but if they were we have at least articles under seal for the property; and the court will not allow it to be taken from us by those having no greater equity.
    But at any rate the mortgagees have a clear equity whether the deed be good or not. For the purchase was from the heir, whom the plaintiffs sue in that character. The mortgagees knew nothing of the debts, and therefore are purchasers without notice. So that as the law allows the heir to alien before action brought; and the mortgagees have fairly ventured their money on the estate, they ought not to be postponed to dormant claims in favor of negligent creditors. Therefore if the conveyance be considered as absolutely void, then the mortgagees have the title of the heir; and if it be considered as passing the estate,.then like an alienation by a devisee, they will still be entitled, although Richard Randolph will be personally liable, for so much, to the creditors. These *views of the subject are completely supported by the case cited from Anstruthers reports; and by 2 Bac. abr. 607, (a) 1 2}q. cas. ab. 105.
    Cur. adv. vult.
    
      
      Deeds — Reacknowledgment.—See, citing the principal case, Roanes v. Archer, 4 Leigh 557, 558, 560, 561, 563, 564, 567. See monographic note on “Deeds” appended to Fiott v. Com., 13 Gratt. 564.
    
    
      
      Same — Marriage—Consideration—Proof —In Hord v. Dishman, 5 Call 291, it is said, in Eppes v. Randolph, 2 Call 130, in. a deed, the consideration whereof was expressed to be natural lqve and affection, the grantee was nevertheless allowed to aver and prove the real consideration to have been" marriage, thereby giving a new and overreaching .influence to the deed. .For this proposition the principal casé is also cited in Duval v. Bibb, 4 H. & M. 121; Harvey v. Alexander, 1 Rand. 234. That marriage is a valuable consideration sufficient to support conveyance of property even.against creditors, the principal case is cited with approval in Herring v. Wickham, 29. Gratt. 637, and footnote note to’ Hopkirk v. Randolph, 12 Fed. Cas. 521.
    
    
      
      Judgments — Limitation.—The principal case holds that judgments do not bind' lands after twelve months from' the date -unless execution be taken-out within that time.-or entry of elegit be m.a.de on the record. .For this proposition the principal case is cited in Tinsley v. Anderson, 3 Call 333; Nimmo v. Com., 4 H. & M. 68; Clarborne v. Gross, 7 Leigh 341, 345; note to Lane v. Ludlow, 14 Fed. Cas. 1082.
      ■ In the third, headnote of Taylor v. Spindle, 2 Gratt. 44, it is said,’ the dictum of the ] udge, delivering the opinion of 'the court in Eppes v. Randolph, 2 Gall 124, “That, a judgment revived by scire facias only operates prospectively, so as to give a lien from the time of its revival, and has no retrospective effect so as to avoid mesne alienations,” examined .and disapproved. See also, Coleman v. Cocke, 6 Rand. 628; Werdenbaugh v. Reid, 20 W. Va. 596; Bank of United States v. Winston, 2 Fed. Cas. 743.
      
        u In Smith v. Charlton, 7 Gratt. 425, Daniel, J., says; ‘Yet I presume i-thasnot been doubted since the decisions in Eppes v. Randolph, 2 Call 186, and Nowland v. Cromwell, 6 Munf. 185, that this one year’s limitation could not ayail a defendant where there had.been a stay of execution by .his own agreement, or by force of an injunction obtained athis own instance.” See also, citing the principal case, Hutsonpiller v. Stover, 12 Gratt. 581 note to Alston v. Munford, 1 Fed. Cas., 581. See monographic note on “Judgments" appended to Smith v. Charlton, 7 Gratt. 425.
      Principal and Surety — Subrogation.—In Tompkins v. Mitchell, 2 Rand. 429, it is said; “It is a settled rule, that a surety is entitled to every remedy which the creditor has against the principal debtor, to enforce every-seburity; in' short, to stand completely in the place of the creditor. Parsons v. Briddock et al., 2 Vern. 608; 2 Ves. 622 ; 2 Meriv. 437; 10 Ves. 412; Wright v. Morley, 11 Ves. 22; 14 Ves. 162; I Johns. Ch. Rep. 412; 2 Johns. 554; 4 Johns. 130; Tinsley v. Anderson, 3 Call 329; Eppes v. Randolph, 2 Call 125; Hatcher’s adm’r v. Hatcher’s ex’r, 1 Rand. 58.” See also, citing the principal case. McMahon v. Fawcett, 2 Rand. 533; Watts v. Kinney, 3 Leigh 293, 296; Tennent v. Pattons, 6 Leigh 220; Powell v. White, 11 Leigh 316, 325, and note on p. 332; Hunters v. Waite, 3 Gratt. 54. See also, citing principal case, Coutts v. Greenhow, 2 Munf. 368, 370, 372, 373, 378; Gholson v. Kendall, 4 Leigh 615.
    
    
      
      This Is the name of the Burmuda Hundred lands.
    
    
      
      1 Call’s rep. 158.
    
    
      
      1 Call's rep. 500.
    
   PFNDHFTON, President.

(After stating the case, and mentioning that the Court were unanimous as to their judgment and the principles on which it was founded.) Delivered the resolution of the Court as follows:

We lay down this general proposition, that where a creditor takes no specific security from his debtor, he trusts him upon the general credit of his property, and a confidence that he will not diminish it to his prejudice. He has therefore a claim upon all that property, whilst it remains in the hands of the debtor; and may pursue it into the possession of a mere volunteer; but, not having restrained the debtors power of alienation, if he or his volunteer convey to fair purchasers, they, having the law and equal equity, will be protected against the creditors.

We then proceed to consider whether the sons Richard and David were such purchasers for a valuable consideration?

1. As to Richard.

There can be no objection to his consideration ; It is natural affection, marriage, and money paid. But the objection is, that the deed was not recorded within eight months from the sealing and delivery thereof; and therefore, by the express words of the act of Assembly, is void as to creditors. If the fact be so, the operation of the law is positive, since it comprehends all creditors; although in reason, the recording would seem to affect only mesne creditors, between the date and recording.

We consider this deed to have been sealed and delivered on the 21st of March 1786, and that *the recording, within four months afterwards, complied strictly with the law. The term re-acknowledgment seems to have produced, in the mind of the Chancellor, mistaken ideas. He understands it as meaning no more, than that Richard the father, on the 21st of March, acknowledged that he had, on the 20th of September before, sealed and delivered that deed. A mistake, which information from our clerk would correct. It would be, that when a man comes into Court to acknowledge a deed, the question put to him is not, whether, he delivered the deed at the date? but whether, he then acknowledges the indenture to be his act and deed? So the oath to the witnesses is, that they saw the bargainor seal and deliver the paper as his act and deed. Such was the oath administered to Currie and the other witnesses to this deed. When did they see it sealed and delivered? Not on the 20th of September 1785; (for then they were not present, and other witnesses attested that delivery;) but on the 21st of March when they subscribed it, noting, upon the paper, the day of the delivery which they attested.

It is admitted, by the Chancellor, that if this deed had been cancelled and a new one made, it would have been good. This the council also admit; but pursuing the Chancellors idea, they have produced a number of cases, some stating that, between the date and recording, the estate is in the bargainor; others that it is in the bar-gainee; and others still, that it is in suspense.

Heaving it to others to reconcile this clashing jargon, we consider what would be the opinion of a plain man on the occasion? It would be, that the estate was in the bargainee whilst he held the deed, which was the evidence of it; but, when he surrendered that deed to the bargainor, his legal title ceased, and the other was at liberty to convey to him, or any other: And if to him, might either destroy that deed and make a new *one, or, by a re-execution of the same paper, give it force, as a new deed from that period.

The reason mentioned for such re-execution, to increase the number of witnesses, applies in this case, and repels a suspicion of fraud.- The deed was to be recorded in Richmond, where all the courts were held for its admission; the eight months were near expiring, and only three witnesses to the deed; two of which resided at a considerable distance, and might not be had in time, the eight months being nearly run out.

What difference can it possibly make, between a new deed and the old one re-executed? Mr. Wickham stated two; in both of which the old deed is best.

First, he justly complained of the practice of renewing deeds from time to time, and keeping them secret; by which means, creditors and purchasers may be deceived, and against which Chancery will relieve as a fraud. But this will apply equally with respect to both cases; with this difference, that in case of new deeds each time, it might be difficult to prove the renewals; whereas the old deeds re-executed shew the progress from the first date and is more beneficial to the creditors.

The same observation applies to his other case. That of a mesne purchaser from the bargainee; since the renewed deed would shew an existing Title, at the time of his purchase.

Upon the whole we are of opinion, that the deed is to be considered, to every intent and purpose, as a deed of the 21st of March 1786 and not before; that it was, therefore recorded, in due time; and that Richard is to be considered as a purchaser for a valuable consideration.

2. As to David;

Being at liberty to aver and prove the real consideration, he has satisfactorily proved the deeds *to have been in consequence of a marriage agreement between the fathers of himself and his lady; and he is to be considered as a purchaser for a valuable consideration also:

It therefore only remains to enquire, whether at the time of their purchase, there was such a lien upon the land, by the judgment, as restrained the alienation of Richard the elder?

Hansbury’s judgments are the great subject of controversy. They were entered in July 1770, when an elegit could not issue upon them, into any other county than York ; and therefore in reason and justice could only bind the lands in that county: And this is not contradicted by authority shewing, that judgments in England, entered in the Courts of General Jurisdiction over the whole nation, bind the lands throughout.

The act of 1772, however, changed the principle, and by permitting the elegit to run into other counties, is supposed at present, but not decided, to extend the lien to all the lands in the country; and that Hanbury had a right, in July 1772, (that being the last day to which the executions were to be staid,) to sue out an elegit, on those judgments, into any other county.

We are then to enquire, what he was to do, in order to preserve his lien?

He was either to issue his elegit within a year, which expired in July 1773, or to enter upon the roll in England, or in the record book here, that he elected to charge the goods and half the lands; which would be equal to issuing the elegit. If he did neither, he might, on motion, be allowed to enter the election nunc pro tunc; but, in the latter case, if there had been an intervening purchaser, the motion would have been denied, upon the principles of relation : Which being a legal fiction, contrived to support justice, is never to be admitted to do an injury to a third person.

*But the creditor here has taken no steps; he has sued out no execution ; has made no election upon record. The judgments have long since expired; and no scire facias taken out to renew them. If he had done so. the lien would have been revived; but to operate prospectively, and not to have a retrospective effect, so as to avoid mesne alienations.

So that we can with great propriety, say, in the language of Chief • Baron Gilbert, that these judgments over-reached nothing; and did not prevent the fair purchases of the sons in 1780 and 1786, unless the causes, assigned in the replication, should be a sufficient excuse for the delay.

Presuming that if this constructive notice from dormant judgments will bind a purchaser at all (contrary to what is said in 3 Bac. 645 and 646, that express notice is necessary,) it ought to be taken strictly and not expended by equity, we proceed to enquire into the facts.

Prom July 1772 to April 1774, there is no excuse. This is 21 months, during which the judgments expired and the lien was at an end: if it could be revived by a scire facias on the judgment which has never been issued.

Admitting bis excuses to be good, from April 1774 to 1791, they ceased to operate from the latter period. At that time, if he had sued out his scire facias, there were lands in the hands of the devisees, which he might have charged in exoneration of the purchases. But by lying bye, until 1797, he suffered them to be exhausted, by other creditors, by bond (for the proceedings against them are all subsequent to 1791;) and now comes into equity to set up his lien against purchasers. This appears, to me, to be contrary to every principle of law and equity.

The other judgment creditors are liable to the same objection, of not having kept their liens alive, by the means before stated.

*The decree of the Chancellor ought therefore to be reversed, so far as it concerns the conveyance to Richard Randolph the son, and he and those claiming under him are to hold the estate according to the deed; But the decree is to be affirmed as to the residue; with this reservation, as to the claim of Wayles’s executors, that they are to be considered as bond creditors, standing in the place of Bevins, so far as may affect the distribution of assets remaining ; but not so, as to charge the executors with a devastavit, on account of payments, or judgments to simple contract creditors.

The decree was as follows:

“The court is of opinion, that the deed, from Richard Randolph the elder to Richard the younger, was made upon good and valuable consideration,- and was binding- upon the creditors of the father, having -been duly recorded within eight months from the twenty first day of March 1786; when the said deed was re-executed by sealing and delivery and attested by new -subscribing witnesses, and ought to be considered, to every intent and purpose, asa new deed of that date. That, although-, the deeds for- David Meade Randolph expressed the considerations to be for natural affection and advancement in life, he was, nevertheless, at liberty to aver and prove an additional consideration; and having established, by satisfactory proof, that the said deeds were made in consequence of a treaty of marriage between the fathers of him and his lady, he is to be considered as a bona fide purchaser of the estates. That the said purchasers are .not to be affected by the supposed lien upon the lands from the judgments in the proceedings mentioned, such lien not existing at the time of their respective purchases, -for the reasons stated in ■ the decree of the said High Court of Chancery. That the appellees, executors of John Wayles, ought to stand in- the ">:'place of James Bevins, and be considered as bond creditors, so far as may. affect the distribution of remaining assets; but not so as to charge the executors with a devastavit, on account of payments or judgments to simple contract creditors; and that there is error in so much of the decree aforesaid as declares the deed to Richard Randolph the son void as to creditors, and directs a sale of the lands by commissioners, and the application of the money to the benefit of the ap-pellees, and as to so much as subjects the money for which the land called Elams devised by Richard Randolph the father to his son David Meade Randolph hath been sold by him, to the payment of the demand of the appellees, the court being of • opinion, that the money, for which the said land was sold, is only liable to the demand of the appellees, if it has not already been applied to- the payment of debts which bound the devisee. Therefore it is decreed and ordered, that so much of the said decree as is herein stated to be erroneous be reversed and annulled, that the bill be dismissed as to the appellants; that the residue of the said decree- be- affirmed, with the reservation herein before stated, as to the executors of John Wayles; and that the appellees pay to- the appellants the costs expended in the prosecution of the appeal aforesaid here.”

- In the suit of Beverley v. Eppes the decree was as follows.

*“ The court is of opinion that-the said decree is erroneous. Therefore it is decreed and ordered that the same be reversed &c. and this • court proceeding to make such decree as the said High Court of Chancery ought to have pronounced. It is further, decreed and ordered that, the deed from Richard Randolph the father to Richard Randolph the son, mentioned in the proceedings, be established. And the cause is remanded to the. said High Court of Chancery, for the appellants to proceed further therein for the compensation prayed in their bill, if they shall think proper.” 
      
      The decree of the Court of Chancery as to this part of the case was in the following- words. “The money for which the land called Elams, which was devised by Richard Randolph the father to his son David Meade Randolph, hath been sold by him, is liable to the plaintiffs demands. ”
      And the devise to David Meade Randolph was in the following words, “I give to my son David Meade Randolph and to his heirs forever, my tract of land called Elams, in the county of Chesterfield, containing by estimation one hundred and thirty acres.”
     