
    Carr’s Adm’rs v. Glasscock’s Adm’r & als.
    October Term, 1846,
    Richmond.
    (Absent Cabell, P.)
    1. Executions — Sale under — When Valid though Irregular. — A sale of property under an execution, by the sheriff, is bona fide, though irregular; and the purchaser leaves the property with the debtor in the execution. Heed. The sale is valid; and the property is not liable to the creditors of the debtor in execution.
    2. Same — Same—Property Lett in Possession of Original Owner — Liability for Debts. — A purchase of property leaves it in the possession of the original owner, but possession thereof is taken by the adm’r of the purchaser before creditors have acquired a specific lien thereon, by judgment and execution. Heed. It is not liable to the original owner’s creditors.
    3. Same — Levy — Lien —When Expires — Liability of Surety. — The lien which a creditor acquires by a levy of his execution upon personal property is. if not enforced by a sale thereof, only temporary; and expires with the authority to sell under the execution. Therefor e, a surety of the debtor, who afterwards pays the debt, has no right to be sub-rogated to the lien of the execution upon this property.
    4. Same — Sale under — Property Left in Possession of Original Owner — Conveyances in Trust by Purchaser. —A purchaser of property, from a sheriff, by a sale bona fide, but irregularly made, leaves it in the possession of the debtor in the execution; and he afterwards, and whilst it is so in his possession conveys it in trust to secure his surety, who has notice of the first sale and purchase. Held. The surety having had notice at the time of the conveyance in trust, has acquired no right as purchaser against the adm’r of the first purchaser.
    5. Fraudulent Conveyances.— Quiere. If the first sale had been fraudulent in fact, whether notice of the sale would have precluded the claimant under the trust deed.
    A bill in chancery was filed in the Circuit Superior Court of Fauquier, by Glasscock’s adm’r and Penquite, *in his lifetime, against the administrators and distributees of Joseph Carr, to impeach and set aside a sale of fifteen slaves by the sheriff of Fauquier to Carr, in the summer of 1821, under executions which had been sued out by Joseph Janney against Henley Boggess, and which had been levied on those slaves as the property of Boggess, on the ground that the sale was fraudulent and void as against the plaintiffs, who claimed to be creditors of Boggess, as well as purchasers of the slaves from him. The answers controverted the claims of the plaintiffs to relief, either as creditors or purchasers: and controverted, too, the state of facts upon which the bill imputed fraud in the sale made by the sheriff to Carr. The state of the case, collected from the pleadings and proofs, is as follows:
    Joseph Janney, at April term 1820, of the Circuit Court of Fauquier, obtained awards of execution on two forfeited forthcoming bonds, against Henley Boggess, the principal debtor, and Robert Singleton, one of the sureties therein bound, but not against Bailiss Grigsby, another surety; the principal of the two debts amounting to /T478. 10. 2., (equal to 4928dollars 36 cents,) with interest and costs. And thereupon, in January 1821, he sued out two writs of fieri facias, returnable to April 1821, on which the sheriff made return that he had levied the executions on fifteen slaves and some horses, &c., and not sold for want of bidders. Upon the day appointed for the sale of the property under the writs of fi. fa., there had been a treaty between the principal debtor and the creditor, for indulgen ces to one half of the debt, but no arrangement was then made. Janney sued out writs of venditioni exponas on the 11th April 1821; under which the sheriff advertised the property for sale on the 15th May following; when Janney, the creditor, and several persons, (among whom there were some negro traders,) attended, as did also Caldwell Carr, to whom his father, Joseph Carr, *'had lent 2000 dollars, to enable him to effect some arrangement with the creditor, whereby the sale of the property, under the executions, might be prevented or postponed; Joseph Carr being the father, and Caldwell Carr the brother, of the wife of Boggess the debtor. Janney, on this occasion, offered to receive one half of his debt in cash, and to wait twelve months for the other half, but Caldwell Carr said he would have nothing to do with it, but on the terms which had been understood on the former sale day, without the consent of his father; upon which James Rdmo'nds, the deputy sheriff, acting under the executions, asked Janney whether if he, (the deputy sheriff,) would pay him 2000 dollars, and the balance to make up one half of the debt within 60 or 90 days, he would give indulgence for the other half for twelve months; and Janney said he would do so, provided the sureties of Bog-gess would consent. The sheriff then borrowed of Caldwell Carr the 2000 dollars which his father had advanced him as above mentioned, gave his bond to Joseph Carr for that sum so borrowed of Caldwell Carr, and paid it to Janney. But one of Boggess’ sureties in the forthcoming bond, Bailiss Grigsby, insisting that he was discharged from all liability for the debt, refused to give his consent to the indulgence; and thereupon, Janney directed the sheriff to proceed upon the executions. The sheriff again advertised the property for sale on (it seems) the 11th June 1821, at which day Janney’s attorney and several persons attended; but this sale was stopped by an injunction from the Superior Court of Chancery of Fredericksburg, obtained by Boggess. Upon this the sheriff asked Janney how he was to get back the 2000 dollars which he had borrowed to pay him, and had paid him on the 15th May; to which Janney replied, that the sheriff might sell under his executions, at any time, enough of Boggess’ property to pay that amount; Boggess consented to that arrangement ¡Joseph Carr insisted *on having his money returned to him; and the sheriff, during the summer, and while the injunction was still pending, sold the fifteen slaves, which had been- taken under the executions, to Joseph Carr for the 2000 dollars ; which was their full value. This sale was made at Boggess’ own house; Caldwell Carr alone was present, and purchased the property'for his father; and the slaves remained in Boggess’ possession till the death of Joseph Carr, the purchaser, which happened in’1828; Boggess, however, giving his bonds for the hires thereof from time to time. The sheriff made his return on the writs of fieri facias and venditioni exponas, stating.the fact of his sale of the fifteen slaves'to Joseph Carr, in the summer of 1821, on'the 27th October 1828. And this is the sale which the will impeaches as fraudulent and void as against Boggess’ creditors'. The injunction had been obtained by Boggess upon a bill filed in the name of himself and Joseph Carr against Janney; which was dissolved in May 1822. Janney then brought an action on the injunction bond against Boggess and his sureties therein bound, recovered judgment in April 1823; and sued out execution which was levied) and a forthcoming bond taken and forfeited. In this forthcoming bond, Daniel Glasscock and William Penquite were bound as sureties for Boggess. Execution was awarded thereon in April 1824; a fi. fa. was sued out for the debt amounting to ¿£919. 10. Ifet-i (equal to 3065 dollars 2 cents,) wjth interest and costs, and the execution was returned satisfied. The debt was paid by Glasscock and Penquite, the sureties; and it is on this transaction, (in part,) that the bill alleges that they became the creditors' off Boggess entitled to impeach the sheriff’s sale of the fifteen slaves to Joseph Carr.
    There was another ground on which the bill alleges that they were the creditors of Boggess. In September 1821, George Carson & Co., recovered a judgment against Boggess in the Circuit Court of Fau-quier, 'for *1294 dollars 27 cents with interest and costs, and sued out a fi. fa. in February 1822, which was returned levied, and a forthcoming bond taken and forfeited; in- which bond Glasscock and Penquite were bound as sureties for Bog-gess. Execution was awarded on this bond in April 1823; and a fi. fa. was shortly after suedout, which has never been returned. The bill alleges that Glasscock and Pen-quite, the sureties, paid this debt; but no proof of such- payment appears in the record.
    In September 1823, Boggess conveyed a tract of 400 acres of land and sundry personal property to Marshall Smith, in trust, to indemnify Glasscock and Penquite against their suretyship for Boggess to Janney; and in July 1824, the whole trust subject was sold by the trustee to Glass-cock and Penquite for 4000 dollars. The bill alleges that this sale was only nominal; intended to give Glasscock and Penquite the control of the property, that they might pledge it to borrow money to pay the debt they were bound for, which they did accordingly ; but the land was under a previous mortgage for more than it was worth, and so the deed of trust did not avail them as an indemnity. The answer insists, that the sale of the trust subject by Smith, the trustee, to Glasscock and Penquite, was a real transaction, and that they have thus received 4000 dollars of the money they now claim as due to them from Boggess.
    Glasscock and Penquite did in fact borrow the money to pay the debt due to Jan-ney (4260 dollars) from Joseph Carr, and mortgaged all the trust subject they had bought from Smith, the trustee, under the deed of September 1823, together with some valuable property of their own, for the repayment of the money borrowed, and that debt has been paid to Carr.
    Boggess having remained in possession of the fifteen slaves, (with their increase,) which had been sold by the sheriff to Joseph Carr in the summer of 1821, from the time of that sale ’till Carr’s death, sometime in *1828, by deed dated 26th July 1828, conveyed all the slaves to Josiah Tidball and Aquila Glasscock, in trust, to indemnify Daniel Glasscock and Penquite for losses they had incurred, or were liable to incur as his sureties. But the trustees never executed or accepted the deed; it was made without their privity or assent; and they never took upon them the trust. Under this deed, the bill claims that Glasscock and Penquite were purchasers, and in that character entitled to impeach the validity of the sale of the slaves by the sheriff to Carr in the summer of 1821. But the bill does not allege that they were purchasers under the deed of the 26th July 1828, without notice of the sale under which Carr claimed. This deed was recorded on the 31st July 1828.
    On the.same 31st July 1828, Caldwell Carr and John Rust, administrators of Joseph Carr, brought an action of detinue against Boggess, in the Circuit Court of Fauquier, for the slaves and their increase, and recovered judgment in September 1831. And having obtained possession of the slaves in question, under this judgment, they proceeded to distribute the same among the ten distributees of their intestate, the administrators themselves being both also distributees, and taking their shares.
    Afterwards, namely, at April term 1832, of the Circuit Superior Court of. Fauquier, Thomas W. Glasscock, administrator of Daniel Glasscock, recovered judgment against Henley Boggess for 2381 dollárs 71 cents, with interest from March 4th, 1830, and costs: and at the same term Penquite recovered judgment against Boggess for the same amount, with interest from .the same date, and costs. Glasscock’s administrator sued out a fi. fa. on his judgment, on the 2d May 1832, returnable to July rules; which was returned No effects; and Penquite sued out execution on his judgment in May 1833, returnable to July rules following, which *was returned No effects. And they brought this suit in June 1836.
    The Circuit Superior Court of Fauquier, upon a hearing in October 1839, declared that the sale of the slaves to Joseph Carr, in the summer of 1821, though ostensibly made by James Edmonds, (the deputy sheriff,) was really a sale made by Henley Boggess; and that the purchaser having permitted the slaves to remain in possession of the vendor, that sale was fraudulent in lavs' and void as to the plaintiffs. Therefore the Court decreed that the defendants, distributees of Joseph Carr, should respectively render accounts of the slaves which they had respectively received in the distribution, and of the increase and profits thereof since the distribution. From this decree, Carr’s adm’rs applied to this Court for an appeal, which was allowed.
    Leigh and Patton, for the appellants, contended:
    I. That there is no ground to impute fraud in fact to Joseph Carr, or any other party, in the purchase of the slaves by Carr from the sheriff in the summer of 1821.
    II. That the plaintiffs cannot claim relief as purchasers under Boggess’ deed of trust of the 26th July 1828; because they do not even pretend, in the bill, that they took that deed without notice of the rights of Carr, under his purchase of the slaves in the summer of 1821; and it is only a purchaser without notice of such a sale that can be entertained in equity to impeach it as fraudulent against him.
    III. That the plaintiffs cannot claim relief as creditors of Boggess, directly; because only such creditors whose rights have attached on the subject by judgment and execution sued out thereon against the vendor, before the vendee has got possession under his purchase that can impeach a sale, on the ground that possession did not accompany and follow the sale; and the plaintiffs *hever recovered any judgment against Boggess, much more sued out executions against him, till after Carr’s adm’rs had recovered the slaves in question in their action of detinue against him, and obtained possession thereof.
    IV. That the plaintiffs cannot claim as creditors of Boggess, bjT subrogation to the rights of Janney, to whom, as Boggess’ sureties, they paid the debt Boggess owed him.
    1. Because Janney had received the whole amount of the debt which Boggess owed him on his judgment and executions, and' all Janney’s remedies against Boggess had been thereby extinguished; so that he had no rights to which the plaintiffs can be subrogated.
    2. Because Janney received 2000 dollars of Carr’s money, which was the full value of the fifteen slaves, and had no equity to insist that those slaves should still be held liable for the balance of the debt due him from Boggess, as against Carr, who purchased the slaves for the very 2000 dollars of which Janney had got the full benefit.
    3.Because, if any body is entitled to be subrogated to the rights of Janney, it is Carr, and not the plaintiffs.
    V. That the sale made by the sheriff of the fifteen slaves to Carr, in the summer of 1821, was not a sale by the sheriff ostensibly only, but really by Boggess, as the Circuit Superior Court supposed; it was a sale made by the sheriff with the assent and by the direction of Janney, and with the assent of Boggess also, to Carr: that is, with the concurrence of all the parties to the injunction suit brought to stay the sale; and so the injunction was no impediment to a sale in which all those parties concurred. That, in truth, Carr’s vendors were the sheriff, Janney and Boggess; and, therefore, this is not a case in which a vendee has permitted the vendor to remain in possession after an absolute sale, ^'within the doctrine which declares such a transaction fraudulent per se as against the vendor’s creditors: on the contrary, it is a case in which possession did, in substance, accompany and follow the sale; and that doctrine has been so modified by recent adjudications, that it is wholly inapplicable to this case.
    VI. That for aught that appears in the record, Glasscock and Penquite did receive 4000 dollars of the debt which Boggess owed them in the purchase by them of the trust subject mortgaged by the deed of trust of September 1823, from Smith the trustee.
    Cooke, for the appellees, insisted:
    1. That the sale of the fifteen slaves to Joseph Carr was fraudulent in fact; that is, it was intended to delay, hinder, and defraud Janney, the creditor, in the recovery of his debt. For conceding, for the sake of the appellants’ argument, that it was lawful for the deputy sheriff to sell, with the consent of Janney and Boggess, so much of the property which had been levied on as was sufficient to raise the sum of 2000 dollars, and thus indemnify Carr and the deputy sheriff, who had paid so much to Janney, and that notwithstanding the injunction actually in force forbidding the sheriff to make such or any sale; the sale so made ought to have been advertised and made by public auction (or bid over bid) as the law directs. And this in order to leave as large a quantity of property as possible subject to the payment of Janney’s debt. The sale made was made without advertisement; without competition between bidders ; only one person was present who could purchase; consequently no sale by auction, or bid over bid: and it was obviously a sale of studied privacy. It is no sufficient evidence of the fairness of such a sale to prove that in the opinion of witnesses the price given was a fair price. The creditor had a right to the benefit of a competition among bidders, by means of which it is well known *that property often sells above its estimated value. The law secured him the right, and it was a fraud on him to take away that right.
    2. The appellees deny that it is necessary that they, before they can legally impugn the sale, in their character of purchasers, should allege or prove that they were purchasers without notice.
    3. The appellees admit that they cannot impugn the sale as creditors of Boggess, “directly,” but thej'insist that Janney. had a right, as creditor, before Carr’s adm’r reclaimed the slaves from Boggess by suit, to impugn that sale, and that they, having satisfied his judgment and execution, as sureties of Boggess, are substituted for him, and are invested by subrogation with all his rights and remedies. They deny altogether ■the doctrine that the payment, by them, of Janney’s claim by judgment and execution, extinguished quoad them the sureties, the remedies to which he was before entitled.
    4. They deny the soundness of the doctrine set forth in the second specification of the fourth error assigned by appellants. Janney had a legal right, after and although he had received the 2000 dollars, and after this injunction was dissolved, to levy his execution (for so much as remained due thereon) on any property in Boggess’ possession, which by the law of the land was subject to be levied on by any other creditor of Boggess. To the same right the appel-lees are entitled by subrogation: i. e. to all his legal rights and remedies.
    5. If Carr had a right by subrogation, as appellants allege, to sell Boggess’ property, as Janney might have sold it, to the amount of his 2000 dollars, he (Carr) admits and insists that he did exercise that right and was satisfied. It is because he left Boggess in possession of the property, after he had purchased it, that Janney acquired a new right, in common with all other creditors by judgment and execution, to levy on it; and this right, the appellees repeat, they hold by subrogation.
    *6. The appellees insist that the sale was, as the Judge below decided, a sale by Boggess to Carr, and not a sale by the deputy sheriff to Carr, under the executions.
    It was not a sheriff’s sale:
    I. Because, during the pendency of the injunction, there could be no legal sale by the sheriff.
    II. Because, if it had been legal for the sheriff to sell, it was still essential to the validity of such sale that there should be an advertisement, which there was not.
    III. There should have been a public sale and by auction, or bid over bid, which there was not.
    7.The appellees deny that there has been any modification, as the appellees assert, of the doctrine of Harben and Edwards, Hamilton and Russell, &c. &c., which can protect Carr’s claims to these slaves, left as they were by him in Boggess’ possession.
    8. They do not recognize the correctness of the notion that “the sheriff, Janney and. Boggess were the vendors of Carr,” or the correctness of the inferences drawn from it.
    9. They insist that there is abundant proof in the record of large payments made by the plaintiffs as sureties for Boggess to Janney the creditor by judgment and executions, and no sufficient evidence that those sums were repaid to the said sureties. The Court below was therefore justified in regarding the plaintiffs as creditors to some amount, so as to authorize it to affirm their right,-as.creditors, to impugn the sale of 1821. As to the amount due, the Court did not pretend to decide it, but merely directed an enquiry.
    
      
      See monographic note on “Executions” appended to Paine v. Tutwiler, 37 Gratt. 440.
    
    
      
      See monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paine, 11 Gratt. 348.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, t'hat the purchase by Joseph Carr of the slaves in controversy, in the summer of the year 1821, has not been successfully impeached on the ground of fraud in fact. It was bona fide and honestly made, for a full and fair price, at a sheriff’s sale of the *property under an execution against Henly Boggess, for the purpose of obtaining reimbursement of the sum of 2000 dollars, which had been advanced by said Carr, and paid over to Joseph Janney the creditor in the execution, in part satisfaction thereof; and irregularities in the said sale, if any, did not affect the validity thereof; the same having been acquiesced in by both the plaintiff and the defendant in the execution.

And the Court is further of opinion, that it is unnecessary to decide in the present case, whether as a general rule, where possession does not accompany and follow a sale of personal property, the continued, possession of the vendor is, in regard to creditors, to be treated as only prima facie evidence of fraud, and liable to be explained by satisfactory proof that the transaction was fair and bona fide, or is to be treated as conclusively fraudulent in law. If the latter proposition be true, it is not applicable to the present case, inasmuch as the alleged creditors acquired no specific lien upon the property by judgment and execution, before possession thereof was recovered by said Carr’s adm’rs in their action of detinue against said Boggess.

And the Court is further of opinion, that the plaintiffs have no right as creditors to subject the said slaves in the hands of the representatives of said Carr, by subrogation to the alleged lien of said Janney, inasmuch as the said Janney had in truth no lien to which they could be subrogated. The lien which a creditor acquires by a levy of his execution upon personal property is, .if not enforced by a sale thereof, only temporary; and expires with the authority to sell under the execution. And the said Janney, at no time after the purchase of said Carr', sought to enforce the levy of his execution, but abandoned the same altogether; and in fact the purchase of said Carr was with his assent, or at least his acquiescence; and the plaintiffs themselves allege that one of them, and the intestate of the other, afterwards *became the purchasers of the property, by their incumbrance from said Boggess of the 26th of July 1828.

And the Court is further of opinion, that the plaintiffs have acquired no right as purchasers, by their said incumbrance of the 26th of July 1828, to subject the said property in the hands of the representatives of said Carr, because one of them, and the intestate of the other, had notice of the purchase of said Carr, at the time of taking said incumbrance. It is not pretended in the bill that they had not such notice, and the fact of such notice appears to the satisfaction of the Court from the whole circumstances of the case. But the Court does not mean to express an opinion as to the effect of such a notice in cases of sales fraudulent in fact.

The Court, therefore, without deciding whether it has been shewn that the plaintiff Penquite, and the intestate of the plaintiff Glasscock, were fair and bona fide creditors of, or purchasers from, said Bog-gess, is of opinion that the plaintiffs have not, in either character, established any right to the relief which they seek; and that the decree of the said Circuit Court is erroneous. It is therefore adjudged, ordered and decreed that the same be reversed and annulled, with costs. And the Court proceeding to render such decree as the said Circuit Court ought to have rendered, it is further adjudged, ordered and decreed that the bill of the plaintiffs be dismissed, with costs.  