
    *Claiborne v. Gross and Others. Wimbish v. Same.
    March, 1836,
    Richmond.
    (Absent Brooke and Cabell, J.)
    Equity Practice — Consolidation of Causes. — Two credr itors by several judgments file separate bills in chancery, impeaching a conveyance of land made by the debtor, as fraudulent; the chancellor, on the motion of one of the plaintiffs, consolidates the causes, but the final decree dismisses the bills respectively, and the plaintiffs respectively appeal: Held,
    1. Improper. — The order of consolidation was improper; by Carr and Brookenbrough, J.
    2. Appeal — Amount in Controversy Insufficient— Costs, — The amount in controversy in one of the suits being insufficient to give this court jurisdiction, the appeal in that suit shall he dismissed, but without costs.
    3. Same — Cause Remanded — Parties.—The decree in the other cause being reversed for error, and the cause remanded to the court of chancery, the creditor whose appeal was dismissed shall be made a party.
    Eiegit — Bill Filed to impeach as Fraudulent — Equity Jurisdiction. — An eiegit is levied on land of the debtor, but the inquisition does not set out the moiety by metes and bounds, and possession is not delivered to the creditor; the debtor makes a conveyance of the land to third persons; after-wards the eiegit and return are quashed, on the motion of the creditor, who then files a hill impeaching the conveyance as fraudulent: Held, equity has jurisdiction to entertain the suit.
    In the county court of Pittsylvania, August term 1815, Elizabeth Biggers recovered judgment against Richard Gross, in an action of slander, for 200 dollars and costs; which judgment was assigned by her to .Moore, and by him to Claiborne. An eiegit was sued out in March 1816, returnable to the 3rd Monday in May, which was returned — “Wot executed on account of the surveyor not attending.” Then, a ca. sa. was sued out dated the 6th November 1816, returnable the 3rd Monday in (January 1817; on which the sheriff returned — “Executed, and put in jail.” Gross escaped. And in Eebruary 1817, an eiegit was sued out, returnable to the 3rd Monday in *April; under which a moiety of a parcel of 312 acres of land held by Gross at the date of the judgment, was extended at the annual value of 20 dollars; but the jury did not set apart the moiety by metes and bounds; nor did it appear that the creditor ever took possession of it. In Hay 1822, on the motion of the creditor, the county court quashed the elegit and the return upon it, no doubt for the defect in the inquisition of the jury, in not setting apart the moiety extended, by metes and bounds.
    In the same county court, June term 1822, one Hodges recovered a judgment against the same Gross, for a debt of SO dollars, with interest from the 10th April 1817, and costs; and he assigned this judgment to Wimbish. A ca. sa. was sued out upon it, dated the 25th June 1822, returnable to the 3rd Monday in August; and the sheriff returned, that he had executed the process, and that Gross took the oath of an insolvent debtor, surrendering no effects.
    By deed dated the 27th April 1822, and recorded on the same day, Gross, for the consideration of 1S00 dollars expressed in the deed, conveyed a parcel of 240 acres of land in Pittsylvania to his daughters, Mejcy, Elizabeth and Emily Gross.
    The daughters, having given their own bonds to one Smith for a debt of 241 dollars due to him from their father, mortgaged the land to him to secure that debt, by deed dated, and recorded, the 20th May 1822. And, afterwards, during the same year, they sold 150 acres of the land to Hodges (the assignor of the judgment to Wimbish) for 1050 dollars; whereof he paid 270 dollars to Smith, in satisfaction of his mortgage, and for the balance he gave the vendors three bonds for 260 dollars each, payable at distant dates. Smith released his mortgage.
    Claiborne, the assign.ee of Biggers’s judgment against Gross, exhibited a bill in the superiour court of chancery *of Lynchburg, setting forth the facts above stated, touching the judgment, the assignment thereof to him, the proceedings on the several executions thereupon sued out, and the conveyance of April 1822 by Gross to his daughters; impeaching that conveyance as voluntary and therefore fraudulent in law as against Gross’s creditors ; charging that conveyance was made with express and avowed design to hinder and defeat the recovery of this particular debt, and was therefore fraudulent in fact; making Gross, his three daughters, and Smith to whom they had mortgaged the land, defendants; and praying, that the conveyance might be set aside, and that the land should be sold, and the proceeds applied first to the satisfaction of the debt due Smith upon his mortgage, and then the debt due the plaintiff.
    Gross and his daughters, in their answers, denied the actual fraud imputed by the bill; and the}' said, that Claiborne’s claim being satisfied by the extent on his elegit, Gross had conveyed the land to his daughters (subject of course to Claiborne’s title under the elegit) in consideration of their undertaking to pay their father’s debt of 241 dollars to Smith (which they had paid), and to support him and his wife, who were poor, old, and incapable of labour, during their lives; which consideration the daughters had fulr filled by their own industry. That Claiborne, having farmed the. shrievalty for the year 1817, had the control over the execution of his own elegit; and had that process quashed, but not till after Gross’s conveyance to his daughters.
    Smith, in his answer, stated that the debt to him had been paid, and his mortgage released, since the bill was filed.
    Wimbish also exhibited a bill containing the like allegations with those in Claiborne’s bill, and the like prayer for relief. All the parties defendants to Claiborne’s bill, were made defendants to this bill, and Hodges also, who had purchased from Gross’s daughters 150 acres of the land conveyed to them by their father.
    *The answers of Gross and his daughters to this bill, insisted that the conveyance from the former to the latter, was made bona fide for the valuable considerations mentioned in their answer to Claiborne’s bill. (Supposing this true, the conveyance having been executed and recorded in April 1822, the rights of the purchasers were consummated before the lien of Wimbish attached by the service of his ca. sa. on Gross in August following.)
    The answer of Hodges shewed the fact of his purchase of 150 acres of the land from Gross’s daughters for 1050 dollars; his payment of 271 dollars (principal and interest) to Smith, in satisfaction of the debt due him by the mortgage, and Smith’s release of the mortgage; and his debt to his. vendors for the balance of the purchase money.
    On the motion of Claiborne, the plaintiff in the first suit, the chancellor ordered, that the two suits should be united and proceeded in as one cause.
    Many depositions were taken and filed. And it was thereby proved, that Gross had often declared, that he had made the conveyance of the land to his daughters, for the purpose of defeating Claiborne’s claim on Biggers’s judgment: that no purchase money was paid by the daughters to the father, at anytime, nor had they the means of making such payment: that though the debt due to Smith was paid, it was paid out of the proceeds of the sale of part of the land to Hodges : and though it appeared that Gross and his wife were old and unable to. maintain themselves by their labour, and though the daughters lived with their parents, and worked for their maintenance and their own ; yet there was no proof, on the one hand, of any agreement made between the father and daughters, either that they should assume and pay the father’s debt to Smith, or that they should support their parents during their lives, as the consideration of the father’s conveyance of his land to *the daughters; nor, on the other hand, was there any proof to the contrary.
    The two causes coming on for hearing together, the chancellor dismissed the bills of the plaintiffs, respectively, with costs; and the plaintiffs, respectively, appealed to-this court.
    Johnson, for the appellants
    in both suits, maintained, that the conveyance from the father to his daughters was, to say the least of it, merely voluntary, which .was enough to avoid it, as against his creditors; and that besides, it was sufficiently apparent from the proofs, that the conveyance was made for the express and avowed purpose of hindering1 and disappointing Claiborne in the prosecution of his claim. He submitted, that interest ought to be allowed on Claiborne’s judgment, upon the authority of Beall v. Silver, 2 Rand. 401.
    R. C. Nicholas and Grattan for the appellees,
    made a strenuous effort to sustain the decree. X. They insisted, that the order of the chancellor to consolidate the two causes, without consent of parties, and even without the consent of the two plaintiffs, was irregular, and must be wholly disregarded by this court; and the chancellor himself, in fact, disregarded it in his final decree; for he dismissed the bills respectively, and the plaintiffs respectively appealed. Wim-bish could not appeal from the decree dismissing his bill, nor could this court take jurisdiction of his appeal; because the amount of his claim was under 100 dollars, 1 Rev. Code, ch. 64, l 2, p. 190. The decree in Wimbish’s case was final, and whether right or wrong, irreversible. His appeal must be dismissed. II. As to Claiborne’s case, they said, he had had the land of Gross, his debtor, extended under his elegit as early as February 1817; he had a right to the moiety of the land extended, as tenant by elegit; the irregularity of the inquisition, if it was fatal, might have been corrected on the return of *the process, by quashing it, and extending the land anew; but he chose, at the time, to abide by the title he had acquired; and he was, in fact, tenant by elegit at the time the conveyance from the debtor to his daughters was made. That conveyance being made (of course) subject to Claiborne’s rights as tenant by elegit, was not and could not be fraudulent as to him. He could not afterwards, upon his own motion, quash his elegit, and the extent made under it, and thereby make a transaction fraudulent which otherwise would not have been fraudulent, and so overreach and avoid the previous conveyance of the debtor to his daughters, even supposing that conveyance merely voluntary. For, by abandoning his first elegit after it had been executed, which was a complete satisfaction, he extinguished his claim: because, though a tenant by elegit, if evicted by others, may have a new elegit or any other execution, yet, they said, he could not entitle himself to a new execution by an eviction arising from his own fault, much more procured by his own act alone. 2 Wms. Saund. 68c; Co. Hitt. 289b, 290a. But granting that the creditor here had a right to quash his own elegit, and the extent made upon it; then, either any new elegit he might sue out, would have relation back to the date of his judgment, or, as against mesne purchasers, it would have no relation back whatever. If by quashing his elegit, the lien of his judgment from its date was renewed, there was no manner of necessity for him to resort to equity for relief; his remedy at law was complete, simple and unembarrassed; he might have sued out another elegit, and that would have overreached all mesne conveyances, whether voluntary, or founded on a good or on a valuable consideration: the conveyance from his debtor to his daughters would have been no hindrance to him: equity need not, and therefore ought not, to have interposed to remove a conveyance out of his way, which was not a hindrance to his remedies at law. If when *he quashed his elegit, the relation of his lien back to his judgment could not be allowed so as to overreach fair mesne conveyances (as was held by this court in Rppes v. Randolph, 2 Call 103) ; then the whole question was, Whether the convej'ance in this case was merely voluntary, and so fraudulent in law as against creditors, or was fraudulent in design and in fact? They contended, 1. That this was not a voluntary conveyance. For the daughters assumed the debt which their father owed to Smith, and gave their own bonds for it, as well as a mortgage of the land to secure the payment: they bound themselves personally for that debt, whether they should derive any benefit from their father’s conveyance of the land to them or not. They agreed too to apply the fruits of their own labour to the support of their aged parents during their lives; and the proof that the agreement was made, consisted in the fact that it was fulfilled on their part. And it was competent to the parties, to aver and prove any consideration other than that expressed in the deed, provided the consideration proved was of the same nature with that expressed; that is, both valuable considerations. Duval v. Bibb, 4 Hen. & Munf. 113, 121; Eppes v. Randolph, 2 Call 12S, 152. Then, 2. As to the imputation of actual fraud, — that was an imputation upon Gross alone. The fraudulent purpose of the grantor did not affect the grantees, unless they were parties to 'the fraud. Garland v. Rives, 4 Rand. 282, 300, 301. And there was no proof of any actual fraud to which the purchasers were parties; no proof of any actual fraud in the father, that could affect the rights of the daughters under the conveyance. The proof consisted wholly of declarations of the father after the conveyance was made; which, surely, were not evidence against the daughters.
    Johnson replied, that Wimbish acquired by the service of his ca. sa. on Gross, and the debtor’s discharge from custody under the statute for the relief of insolvent *debtors, a lien on the lands of the debtor, and therefore, if Wimbish’s appeal should be dismissed for want of jurisdiction, and the decree as to Claiborne should be reversed, Wimbish must be made a party defendant to Claiborne’s bill. The inquisition on Claiborne’s elegit of 1817 was void for uncertainty, because it did not set apart the moiety extended by metes and bounds; 2 Wms. Saund. 69a. In modern practice the sheriff never delivered the moiety extended, to the creditor; his remedy was to bring ejectment for it; but if the inquisition was void for uncertainty, the creditor could never obtain possession of the land under it; and therefore in this case, the court, on the motion of the creditor, properly vacated the elegit; Id. 69c. The creditor was then entitled to a new elegit; which would have related back to the date of his judgment, since he had .previously made his election to take a moiety of his debtor’s lands, and this process would have overreached mesne conveyances; yet this did not preclude him from his resort to equity, to have the voluntary and fraudulent conveyance removed out of his way. And he maintained, upon the proofs in the cause, that the conveyance of Gross to his daughters was certainly voluntary, and so void against his creditors, if not fraudulent in design and in fact.
    
      
      Equity Practice — Consolidation of Causes. — In the principal case, where two creditors filed separate bills in chancery impeaching a conveyance of land made by the debtor, as fraudulent, and the chancellor on motion consolidated the causes, it was held by two judges that, the order of consolidation was improper.
      In Tavenner v. Barrett, 21 W. Va. 672, it is said, orders to consolidate causes in equity should rarely if ever, be made. Citing opinion of Judge Carr in Claiborne v. Gross, 7 Leigh 339. Where it is proper, chancery causes should be heard together, but ought not except perhaps in a few special cases to be consolidated.
      And in Barger v. Buckland, 28 Gratt. 868, it is said by Moncure, P., the plaintiff in the several suits had a right to bring them severally and to recover several costs; and it is doubtful whether they could have been consolidated without their consent, citing Claiborne v. Gross, 7 Leigh 331.
      But in Patterson v. Eakin, 87 Va. 54, 12 S. E. Rep. 144, it is said, commenting on the principal case. Judge Carr quoted with approval the language of Chiee Baron Richards in Fonnan v. Blake, 7 Price 654, who sala; “I never heard of an order, in the course of my experience, for consolidating causes in equity nor can I conceive upon what principle it can be done.” Tucker, P., saw no reason why when separate suits are brought which might have been brought by the plaintiffs jointly, they may not be consolidated into a single cause. This case <Pattersonv, Eakin) holds, that the consolidation of causes is within the discretion of the court of equity. The principal case is also cited in Wyatt v. Thompson, 10 W. Va. 645, which also holds that the consolidation of causes is within the discretion of the court.
      Consolidation of Actions — Proceedings to Obtain— Rule to Show Canse. — The proper mode for bringing the subject to the attention of the court is by motion for a rule to show cause why the suits or actions shouldnotbe consolidated. McRae v. Boast, 3 Rand. 481; Beach v. Woodyard, 5 W. Va. 231; Wyatt v. Thompson, 10 W. Va. 645.
      Same — At Law — Discretion of Court, — The consolidation of actions is not a matter of strict right, hut it is addressed to the discretion of the court. McRae v. Boast, 3 Rand. 481.
      Same — Same—By Agreement. — where the plaintiff brings two actions against the same debtor, who pleads payment to both actions, and the parties agree that both shall be tried together, such agreement is in effect a consolidation of the actions. Eagles v. Hook. 22 Gratt. 510.
      Same — in Equity — Discretion of Court. — A court of equity may, in its discretion, order causes pending therein to he consolidated and heard together. Patterson v. Eakin, 87 Va. 49, 12 S. E. Rep. 144; Hill v. Postley, 90 Va. 200, 17 S. E. Rep. 946; Wyatt v. Thompson, 10 W. Va. 645; Beach v. Woodyard, 5 W. Va. 231. It is also within the discretion of the court whether it will postpone the original cause until a cross bill is ready so that both may be heard together. McConnico v. Moseley. 4 Call 360.
      Same — When Proper — General Ruie. — where the parties are the same, and separate suits have been brought upon matters which might have be'en united in one suit, and the defence is the same in all, a consolidation rule ought to be granted. Beach v. Woodyard, 5 W. Va. 231; Wyatt v. Thompson, 10 W. Va. 645.
      Same — Same—Illustrative Cases. — In Devries v. Johnston, 27 Gratt. 805, three suits were brought by the saro e plaintiffs against the same defendants to enforce payment of debts by attachment and sale of the debtor’s land, the court ordered these suits to he consolidated and heard together. See also, Stephenson v. Taverners. 9 Gratt. 398, and note; Preston v. Aston, 85 Va. 104, 7 S. E. Rep. 344.
      A suit by the beneficiary against the trustee may properly'he consolidated with another suit by a legatee against the same defendant as executor, where the rights of each plaintiff involved the settlement and. distributions of the same estate-Moorman v. Crockett, 90 Va. 185, 17 S. E. Rep. 875.
      Consolidation is properly ordered where there is a plea in the cause that another suit is pending in the same court, between the same parties concerning the same subject. Mosby v. Withers, 80 Va. 82.
      The plaintiff files his bill to have his title to certain real estate established and to obtain the legal title from the trustee. Also in the same court a hill is filed, against the plaintiff, claiming as assignee of the vendor, the purchase money of the land, which is still unpaid. The causes were properly heard together. Mayo v. Carrington, 19 Gratt. 74.
      And in Magill v. Manson, 20 Gratt. 527, the complainant sued to have her bond to the defendant set aside as having been fraudulently obtained, and the defendant filed a cross bill to attach a debt due from a third person to the complainant, for payment of the bond. Held, the cases were properly heard together.
      Suits between different parties claiming the same property may be heard together, to avoid decrees that might clash with each other. McConnico v. Moseley, 4 Call 360.
      In Barger v. Buckland, 28 Gratt. 850, where three suits by judgment creditors are brought to subject tbe land of their debtor which he had conveyed in. trust to secure a debt, and the causes were ordered to be consolidated and heard together, each plaintiff is entitled to his Separate costs.
      Same — When Improper. — But where the suits are by different plaintiffs proceeding against different funds in the hands of different defendants to satisfy separate and distinct liens, consolidation is improper. Wyatt v. Thompson, 10 W. Va. 645; Beach v. Woodyard, 5 W. Va. 231.
    
    
      
      Appeals — Amount in Controversy. — On this question. the principal case is cited in Umbarger v. Watts. 25 Gratt. 174 (see note); Rymer v. Hawkins, 18 W. Va. 317. See generally, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob. 263.
    
   CARR, J.

Two judgments at law having been obtained by different persons against Gross, wer“ transferred, one to Claiborne, and the other to Wimbish; and they filed a separate bills against Gross, to set aside, as fraudulent, a deed made by him conveying his land to his daughters. After these bills had been separately answered, and had been depending for some time, the chancellor ordered, that they be united and proceeded in as one cause. Knowing that these consolidation orders were sometimes made in the courts of common law, it did not strike me to inquire whether they were proper in chancery also, until my attention -was turned *to the question by brother Brooke, and some cases referred to. On examining these, I find the attempt to introduce such a practice into the court of chancery in England, has been discouraged. And as this is the first time the question has come before us, it may not be amiss to quote a passage from the latest case I find in the english books, in which the vice chancellor reviews the different cases on the subject. It is the case of the Warden and Fellows of Manchester College v. Isherwood, decided in 1829; 2 Sim. 476; 2 Cond. Eng. Ca. in Ch. 506, where the vice chancellor says—“The general rule is, that every plaintiff shall be at liberty to conduct each suit that he institutes, in what way he thinks best. At law there is one exception ; in the case of policies of assurance: and the question is, whether in courts of equity any such exception has been allowed? In the case of Pyke v. Brock, 3 Gwill. 1345, in the year 1791, a motion was made to consolidate seven tithe suits. In that case, chief baron Eyre speaks of the practice as if it were common ; but the reason assigned for making the order was, that no cause was shewn. In Keighly v. Brown, 16 Ves. 344, in 1809, a motion was made, before answer, to consolidate tithe suits. Lord Eldon is represented as stating his opinion, that the court of exchequer did very freely consolidate cases of this description; but it appears that he mentioned the point to baron Thompson, who had no idea that the order was of course in the court of exchequer, though sometimes made under special circumstances ; and lord Eldon refused to make anj' order. In 1819, in the case of Forman v. Blake, 7 Price 654, a motion was made, after answer, to consolidate tithe causes. The chief baron Richards said—'‘I never heard of an order, in the course of my experience, for consolidating causes in equity, nor can I conceive upon what principle it can be done. There are many reasons why it should not; and if it be the practice, it is extraordinary.’ And upon referring *to the registrar, he said there was a case wherein a similar application had been made, about twenty-four years ago, in about 1795, when the court refused the application. In 1820, in Forman v. Southwood, 8 Price 572, a motion was made to consolidate tithe suits, before answer; and that was refused; and it is stated, (see page 575,) that a similar application had been made in the case of Davies v. Mosely, in May of the same year, and refused with costs. These are all the cases in print. But in a manuscript case of Kynaston v. Perry, before lord Eldon in Eebruary and March 1826, a motion was made to consolidate tithe suits, before answer, and refused. It is evident, therefore, that neither in this court, nor the court of exchequer, has the practice prevailed, of compelling the plaintiff to consolidate his different suits against several defendants : and the present motion, being a mere experiment in opposition to practice, must be refused with costs.” In the record before us, the cases seem to have been united on the motion of the plaintiff in the first cause. I think we must still consider them as distinct causes: andas that of Wimbish v. Gross is below the jurisdiction of this court, the appeal as to that must be dismissed; but, under the circumstances, without costs, the appellant being led to believe by the order of court, in which he seems to have had no agency, that his cause formed part of the other.

With respect to the case of Claiborne, I think the decree dismissing his bill must be reversed. I take much pleasure in saying that the argument for the appellees was such as would have done credit to much older counsel; yet it could not avail to cleanse of its stain the deed from Gross to his daughters. I am compelled to believe it fraudulent and void as to creditors. It has all the badges about it. It was voluntary; the consideration expressed is disproved ; and it is in full proof, that the grantor made it for the express purpose of avoiding the payment of Claiborne’s judgment.

**But it was contended, that this was not a case of which equity had jurisdiction, because the judgment of Claiborne was older than the deed, and because it had actually been satisfied by the levy of an elegit. With respect to the elegit, the court from which it issued quashed it; and we are compelled to conclude, properly; because the proceedings of a court having jurisdiction of the matter, cannot be questioned by a side wind. The execution being thus quashed, is as if it had never issued, and leaves the plaintiff free to pursue any remedy which was before open to him. But in the mean time, these deeds have intervened; the deed to the daughters, their deed to Smith, and their deed to Hodges. The case of Eppes v. Randolph, deciding that judgments do not bind lands after twelve months, unless execution be taken out, or an elegit entered on the record,—is considered the law of the land, however it may be doubted by one or two. This being so, will equity refuse to receive this plaintiff, and assist him in setting these deeds out of this way? I think not. But though these deeds will not be suffered to impede creditors, they are yet good between the parties; and if by the fair exercise of its powers equity can, instead of cancelling them, make them the means of satisfying the claims of the creditors, -I think such an administration will be best suited to its mild spirit. And this I believe may be done. The record tells us, that the deed made to secure Smith’s money has been released, that debt being paid. But the deed- conveying ISO acres of the land to Hodges is still in force, and he can have no cause of complaint provided his title is secure; which will be effected by satisfying out of his purchase money, the debts due from Gross before he executed the deed to his daughters. He was to give 1050 dollars for the land: he paid the debt to Smith *amounting to 271 dollars, and executed his bonds for the balance; three bonds for 260 dollars each, payable at distant dates; to secure which he has executed a deed of trust of the land. We hear of but two creditors of Gross, namely, Claiborne and Wimbish; and the latter, though his appeal has been dismissed here for want of jurisdiction, has a just claim for the amount of his execution, and that claim will be available to him, by means of his ca. sa. under which Gross swore out; for upon that event, the law vested all his property, not pledged to prior liens, in the sheriff, for the benefit of the ca. sa. creditor. And Wimbish (I apprehend) may, under our insolvent law, 1 Rev. Code, ch. 134, l 34, p. 538, proceed by summons to get satisfaction of his debt; or as there may be difficulties in the way of such proceeding, it may be safer to direct, that when this cause goes back (as it must) he be made a party, and entitled to satisfaction after the judgment of Claiborne, prior in time, shall be satisfied.

It was contended that this judgment of Claiborne’s must be taken to have been nearly half discharged, as his elegit had been levied many years before it was quashed. I question much, from the proofs in the record, whether he was ever in possession under it. We know that he did not receive possession from the sheriff, on the day the inquest was taken ; and we know also, that the lines dividing the half intended for him were never completed, so as to set it out in severalty. This is a point, however, which need not be decided now, but may be inquired into when the cause goes back.

Upon the whole my opinion is that the decree in Claiborne’s case be reversed, and the cause sent back, with directions to make Wimbish and Hodges parties; that an account be taken of the judgment of Claiborne, charging him with the annual value of the moiety, as settled by the inquest, for such time as he shall have been in actual possession thereof; and that upon Hodges’s ^receiving a good and sufficient title (if he has not already received it, for his deed is notin this record), he be decreed to pay and satisfy out of the purchase money in his hands the judgment of Claiborne, the execution of Wimbish &c.

BROCKENBROUGH, J., concurred.

TUCKER, P.

The first question which presents itself in these cases, is as to the order to consolidate the causes. Whether that order was regular or not, is no otherwise important here, than as it may affect the appeal of Wimbish, whose demand is, not sufficient to give jurisdiction if his case stands by itself.

Claiborne and Wimbish are both seeking-to set aside the same fraudulent deed, and to charge the same land, and, no doubt, might have united in the same bill for the purpose of recovering their demands. Nothing is more common, or more proper, than the joining of parties as plaintiffs, who have the same common object. It is on this-principle that one creditor may institute a suit on behalf of himself and others who may come in, in the course of the cause,, and prove their debts and their right to participate in a common fund. Whether, where several suits have already been instituted, they can be consolidated, may however be a different question. I do not distinctly perceive any good reason why those who might have united in commencing a joint suit, may not afterwards unite their several suits, and consolidate them into a single cause. I recollect no particular instance of the kind, though we are all aware-that where there are various demands, which are intimately connected with each other, and seek to charge the same fund,, the several causes in which they are asserted are tried together, and one decree is made to embrace them all. Whether regular or not, this has become a common practice with us. But as to consolidating suits in equity, I am indebted to my brother-Brooke, for a reference to *lhree recent cases in which the practice is denied and disapproved; Forman v. Blake, 7 Price 654; Forman v. Southwood, 8 Price 572, and Manchester College v. Isherwood, 2 Sim. 479; 2 Cond. Eng. Ca. in Ch. 508. I have examined them, and incline to think they are not parallel to the case at bar. The point, however, is not, I conceive, necessary to be decided in this case; for, notwithstanding the order, the cases are severed in the decree. The bills are dismissed respectively, and the parties respectively prayed an appeal. Here, then, is an appeal prayed by Wimbish separately from Claiborne, and so accordingly is it docketed. This appeal cannot be supported, for Wimbish’s demand cannot give jurisdiction to this court. The appeal must therefore be dismissed, but without costs, as improvidently allowed.

As to Claiborne’s case: I think there was-no doubt of the justness of his demand; the fraudulent character of the alienation ; or the jurisdiction of the court.

1. As to his demand. It is not pretended, that it has been paid. But it is said to have been satisfied by the elegit. This cannot be. The elegit having been quashed by a court of competent jurisdiction, the legality and justice of whose acts we cannot thus collaterally question, it must be considered as if it never had existence. My own impression is, that it was properly quashed, as the boundaries of the extended land were not set out so as to enable him-to take possession. If, indeed, he has had' possession, of which I am not satisfied, an account of the profits he has actually received must be taken, and those profits set off against the demand. But I do not think he would be properly chargeable with speculative profits on an extent which was void, and has been quashed for uncertainty. His debt then is unsatisfied.

2. As to the fraudulent character of the alienation, that is beyond question. The deed was made for a consideration different from that expressed upon its face, when, in truth and in fact, the principal consideration *was a secret trust for the support of the grantor and his wife. If this be not void, both at common law and by the statute, I am at a loss to conceive that can be so.

3. As to jurisdiction. If Eppes v. Randolph be still considered as good law, then the attempt of Claiborne to extend the land by a second elegit after the first was quashed, would have been arrested by the intervening alienation to Gross’s daughters, unless he can prove it to be fraudulent and void : and to do this, — to remove that deed out of the way, — he had a right to resort to a court of equity, the two jurisdictions being concurrent as to this matter. And even if the existence of that deed did not of itself furnish a barrier to proceeding at law, the deed of trust to Smith, who is not proved to have had notice, would have been an insuperable one. Admitting that deed to be a good one, and not overreached by the new elegit, Claiborne’s only remedy is in equitjq where he may get paid out of the residue of the trust fund, after satisfying Smith. Since the suit brought, indeed, Smith has been paid by Hodg-es, and now Claiborne is entitled to payment out of the funds in the hands of Hodges, who certainly appears to have no reasonable title to a rescission of his contract. He, however, is no party to Claiborne’s bill. The cause should, therefore, go back for further proceedings. Hodges should be made a party, and Wim-bish also, as the insolvency under his ca. sa. gives him a right to such portion of the fund as is necessary to pay his debt, after Claiborne is satisfied, he having the preference according to the case of Fox v. Rootes, 4 Leigh 429.

In Wimbish’s case, appeal dismissed.

In Claiborne’s case, decree reversed, and cause remanded for further proceedings, with directions that Wimbish and Hodges shall be made parties defendants &c.  