
    *Clark v. Ward & als.
    April Term, 1855,
    Richmond.
    i. Attachments— Nonresidents — Who Are Case at Bar. — w, living in Virginia, determines to remove to another state; and in pursuance of that purpose, leaves the place where he has resided, and proceeds directly to the place where he intends to reside. He is a nonresident of the state in the sense of the attachment law, directly he commences his removal, and "before he gets beyond the limits of the state.
    
    3. Conveyance of Personal Property — Failure to Record Deed — Possession by Trustee — Effect.—A deed is made conveying" personal property to trustees for the purpose of paying debts specified therein; and the trustees take possession of the property and proceed to sell it for the purposes of the trust. Though the deed was not duly recorded, yet the property having been delivered to the trustees, this was a valid transfer thereof, and protects the property against the demands of creditors who had not acquired liens upon it before said transfer was consummated.
    3. Attachments — Case at Bar. — A creditor secured by a deed of trust with others, sues out a foreign attachment against his debtor, and seeks to subj ect the property conveyed in the deed, to the payment of his debt, in preference to the other creditors secured by the deed ; but he fails. This does not preclude him from his right to claim under the deed his ratable proportion of the trust fund.
    4. Same — Failure to Describe Real Estate in Endorsement — Effect.—The endorsement on the process of attachment not mentioning or describing real estate, the attachment does not operate upon any such estate.
    
    5. Same — Case at Bar. — The attachment is served upon trustees in a deed of trust for the payment of certain debts, and among them are the debts due to the plaintiff in the attachment. There could therefore be no surplus in the hands of the trustees until the plaintiff’s debts were *paid, and consequently there can be no surplus in their hands liable to his attachment.
    6. Same — Case at Bar. — The creditor having stated in his bill and proved, that his debtor had assigned to him certain railroad stocks, and a bond secured by a deed of trust, as a security for one of his debts, and the deed conveying all the debtor’s stock and debts to the trustees, though they disclaimed any right to or possession of the stocks and bond assigned to the plaintiff, they are interested for the creditors, to see that the fund assigned to the plaintiff is properly applied to the satisfaction of his debt: And therefore, though there is nothing in their hands on which the attachment can operate, the bill should not be dismissed ; but the court should proceed to have the assigned property properly disposed of and applied ; and to give the plaintiff relief according > to his rights under the deed.
    On the 28th of June 18S3, between- the hours of 10 and 11 o’clock A.. M. William M. Clark sued out of the clerk’s office of the Circuit court of Frederick county a subpoena in chancery against Henry P-Ward, George W. Ward and C. Lewis Brent, returnable to the next July rules. On this subpoena a memorandum was endorsed, by which the officer to whom it was directed was ordered to attach the debts due and to become due by the defendants George W-Ward and C. Lewis Brent to the defendant Henry P. Ward, and also any other estate of that defendant whether in his own hands, or in the hands of the other defendants, so that the said defendants be restrained from paying or conveying away the debts by them owing to, or the estate or effects in their hands of, the said Henry P. Ward, until the further order of the court. The sheriff endorsed on this subpoena, that it was received at seven minutes past 11 o’clock A. M. It was returned “executed on George W. Ward and Brent. H. P. Ward is not an inhabitant. ’ ’
    On the same day on which the subpoena was sued out, Clark "filed his bill, in which he stated that Henry P. Ward was indebted to him in three sums of money, which he paid as security for said Ward, amounting to about one thousand two hundred dollars. That for *one of these debts Ward had assigned to him as security twenty-three shares of the stock of the Winchester and Potomac railroad company, and also a claim on Alexander Clark, due by note, for about two hundred and fifteen dollars; but that neither the scrip nor the note was delivered to him at the time or since, so that he had no means of collecting the note, and the scrip could only be transferred on the books of the company by the said Henry P. Ward in person, or by his attorney in fact, or by a decree of a competent court; and by no other means could be made available.
    He further stated that the said Henry P. Ward was not a resident of the state of Virginia, and that George W. Ward and C. Lewis Brent had in their possession goods, effects and estate and property of various kinds belonging to the said Henry P. Ward, and were indebted to him for money received for him sufficient to pay plaintiff’s debt. And making the three parties defendants, he prayed that the goods, estate and property of Henr37 P. Ward in the hands of the other defendants, and the moneys due from them to Henry P. Ward, might be attached, and they be restrained from paying or conveying the same until the future order of the court; and that the said stock of the railroad company might be sold under the decree of the court for the benefit of the plainti.fi; and for general relief.
    The defendants George W. Ward and C. Lewis Brent answered the bill. They said that they knew nothing of the indebtedness alleged in the bill, of Henry P. Ward to the complainant, or of the alleged assignment of the railroad stock and the claim on Alexander Clark; that neither the stock nor the claim had come into their hands or under their control. That they were not aware, and therefore could not admit, that Henry P. Ward, at the time of filing the bill or the issue of the subpoena, was a nonresident of the state of Virginia. And they denied that they or ^either of them then had or at the time of filing the bill had, in their possession any goods or effects, estate or property of any kind belonging to Henry P. Ward, or that they or either of them then owed or at the filing of the bill owed him for money received for him, to any amount. The bill was taken for confessed as to Henry P. Ward.
    The evidence was clear that Henry P. Ward was indebted to the plaintiff as stated in the bill, and that he had assigned the railroad stock and the claim on Alexander Clark as a security for one of the debts. The proofs further show that in March 1853, Henry P. Ward was a merchant doing business in the town of Winchester; that he had become embarrassed to insolvency, and by a deed bearing date the 14th of that month, he conveyed to George W. Ward and C. Lewis Brent, the whole of his property, consisting of real estate, his interests in estates of deceased persons, all his stock of goods, debts due to him, household furniture, and any stock that might be held by him in any joint stock company, in trust, to pay a large amount of debts specified in the deed; and among these were the debts due to the plaintiff Clark. These with the large mass of debts were placed in the second class in the deed: And it was provided that the trustees should sell the real estate and goods at any and such times within six months from the date of the deed, at public or private sale, either for cash or upon such credit as they should think would best promote the interest of the creditors; and until the goods were disposed of the trustees might dispose of them at private sales, and employ an agent to conduct the store, looking only to the interest of the cestuis que trust.
    This deed was admitted to record upon the following certificate, viz:
    ^Frederick County, viz:
    On the 14th day of March 1853, Henry P. Ward personally appeared before me, a justice of the peace for the county aforesaid, and acknowledged the above and foregoing deed of trust bearing date the 14th of March 1853, to be his act and deed, for the purposes therein mentioned. Given under my hand.
    J. P. Riely, J. P.
    It appears that within a few' days at farthest, the trustees took possession of the goods valued at about four thousand dollars, and they were sold in the months of March, April, May and up to June. ■ That from the date of the deed up to the 28th of June, Henry P. Ward resided with NT. Bent in Winchester, except for a short time, when he was absent, a part of the time in Philadelphia and a part in the county of Culpeper. That he left Winchester on the 28th of June, about 9 o’clock A. M. upon the Winchester and Potomac railroad for Philadelphia, with the purpose of residing there. That on reaching Harpers Ferry he remained there until between half past 2 and 3 o’clock P. M. when he took the cars for Baltimore, intending to go directly on to Philadelphia.
    The cause came on to be heard in November 1853, when the court being of opinion that Henry P. Ward was not to be treated as a nonresident of this state at the time of the institution of the suit, decreed that the bill should be dismissed, with costs to the defendants George W. Ward and Brent. From this decree the plaintiff applied to this court for an appeal, which was allowed.
    This case was elaborately argued in writing by Steger, for the appellant, and Conrad & Tucker, for the appellees.
    *Steger, insisted, 1st. That in the sense of the statute, Code, ch. 151, $ 1, p. 600, Henry P. Ward was not a resident of the state at the time the process was issued. That having left Winchester with the purpose to settle in Philadelphia, whether he had passed beyond the limits of the state or not at the time, he was not a resident here: That imported a permanent abiding, which was not the condition of a man who was in the act of removing with the purpose not to return, but to fix his residence elsewhere. He referred to Roosevelt v. Kellog, 20 John. R. 208; the case of Wrigley, 8 Wend. R. 134; and Drake on Attachments, \ 82, 83, 84, 85, as sustaining his construction of the statute. Drake, | 85, says, “It follows from these views of what constitutes a resident or inhabitant, that change of abode sine animo revertendi makes one immediately a non-resident of the place from which he departs. He also referred to Farrow v. Barker, 3 B. Monr. R. 217; Davis v. Thomas, 5 Leigh 1; and Moore v. Holt, 10 Gratt. 284. And he referred to the change in the language of the act from that of the act of 1819, in which the words are, “out of this country.” 1 Rev. Code, ch. 123, $ 1, p. 474. In the Code the language is, “not a resident of this state.”
    2d. That if Henry P. Ward was not a non-resident of the state, it was error to dismiss the bill as to him. That as to him the plaintiff was entitled to come into equity to have the railroad stock subjected to the satisfaction of his claim. That as to this branch of the cause the other defendants disclaimed all interest; and it was therefore simply a question between the plaintiff and Henry P. Ward. That clearly as to him and as to this subject the statute gives the court jurisdiction: It requires the suit against an absent defendant to be brought in the county where his estate is: And in this case it was so brought, and the sheriff returned *that he was no inhabitant. See Code, ch. 169, § 1, p. 641.
    3d. That the deed of March 14th, 18S3, was not duly recorded; and was therefore void as to creditors. That the act, Code, ch. 118, § S, p. 508, declares that every deed of trust shall be void as to creditors, ‘ ‘until and except from the time that it is duly admitted to record. ’ ’ And it further directs the various modes in which deeds shall be admitted to record. Code, ch. 121, $ 2, 3, p. 512. In this case the certificate of the justice was fatally defective: First, in not stating that the county of Frederick, in which the person making the certificate was a justice, was in the state, as is required by the act; second, in not stating that Henry P. Ward’s name was signed to the deed, which is also required by the statute; and third, in not stating that the acknowledgment was made in .the county of Frederick. A justice of the peace cannot act out of his county, and therefore it is required that it shall be stated that the acknowledgment was taken in the county where the justice has authority to take it. And for the strictness required in such cases, he referred to Turner v. Stip, 1 Wash. 319; Harvey v. Alexander, 1 Rand. 219; Lockridge v. Carlisle, 2 Heigh 186; Currie v. Page, 2 Leigh 617; Harkins v. Forsyth, 11 Leigh 294; Hairston v. Randolph, 12 Leigh 445; Healy v. Rowan, 5 Gratt. 414; Carper v. McDowell, 5 Gratt. 212.
    He insisted further, that if the sale was an absolute sale, it was fraudulent and void, because there was no consideration for it. If it was in 'trust, as it clearly was, then it was void unless it was duly recorded. Bird v. Wilkinson, 4 Leigh 266; Lane v. Mason, 5 Leigh 520. And if it was void, then the property embraced in it is subject to an attaching creditor precisely in the same manner and to the same extent as if *the deed had not been made. Peay v. Morrison, 10 Gratt. 149; Gibson v. White, 3 Munf. 94.
    Conrad & Tucker, insisted, 1st. That even if the deed was not duly recorded, yet as the trustees had taken possession of the property and sold it, and in fact had paid over the greater part of the proceeds of the sales to the cestuis que trust before the attachment was issued, that the debtor certainly had no claim or right to the money in the hands of the trustees, and the attaching creditor could not therefore be entitled to it. Schofield v. Cox, 8 Gratt. 533; Glassell v. Thomas, 3 Leigh 113. That the property attached being personal chattels, its delivery under a bona fide transfer of title, for a lawful purpose, consummated the title of the trustees as against both Ward and his creditors, even if no writing had been used to pass the title or declare the trusts. 1 Black. Com. book 2, ch. 25; Power v. Walker, 3 Maulé & Selw. 7. And if possession be taken at any time before an adverse execution, though long after the date of the deed, it will be valid. Jones v. Dwyer, 15 Fast’s R. 21; Glasscock v. Batton, 6 Rand. 78; Robinson v. McDonnell, 2 Barn. & Aid. 134; Mair v. Glennie, 4 Maulé & Selw. 240; Hastwood v. Brown, 21 Eng. C. L. R. 447.
    2d. That the deed was duly recorded. That though the statute gives a form of certificate, it only requires a substantial compliance with it. Horsley v. Garth, 2 Gratt. 471. That when a justice performs an official act and certifies it, the presumption of law is, that it was done where he had authority to do it. And it is equally a presumption of law that the party acknowledging the deed is the grantor in it, as the name is the same.
    3d. That the attachment did not lie under the circumstances of this case. First, because the debtor *had no property in the state or debts due to him; and second, because Henry P. Ward had not ceased to'be a resident of Virginia when the process was issued. To effect a change of domicil, there must concur an actual removal with the intention to- reside in the place to which the party has removed. 1 Bouvier’s Inst. 99; Jennison v. Hapgood, 10 Pick. R. 77; Cooper v. Galbraith, 3 Wash. C. C. R. 546. A mere intention to remove, unless such intention is carried into effect, is not sufficient to operate the change. 1 Greenl. Evi. § 108; The State v. Hallett, 8 Alab. R. 159.
    
      
       Attachments — Nonresidents.—For the proposition that, one is a nonresident ol the state in the sense of the attachment law, directly he commences his removal and before he gets beyond the limits of the state, the principal case is cited and followed in Dean v. Cannon, 37 W. Va. 129, 16 S. E. Rep. 446. The principal case is also cited in foot-note to Long v. Ryan, 30 Gratt. 718. See, in accord, Moore v. Holt, 10 Gratt. 284; monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
       The act, Code, ch. 161, § 1, p. 600, and the act, Sessions Acts of 1862, ch. 95, p. 78, authorizes an attachment “against a person who is not a resident of this state.” The act of 1819, IRev. Code, ch. 123, § 1, p. 474, authorized an attachment in equity against defendants “who are out of this country.”
    
    
      
       Conveyance of Personal Property — Failure to Record Deed — Possession by Trustee. — In Hobbs v. Interchange, 1 W. Va. 67, it is said that, the registry act does not apply where the possession of the goods is taken by the vendee, citing Clark v. Ward, 12 Gratt. 440.
      
    
    
      
       Attachments — Endorsement.—In the fourth headnote of the principal case it is held, the endorsement on the process of attachment not mentioning or describing the real estate, the attachment does not operate upon any such estate. This is approved in McFadden v. Crawford, 36 W. Va. 679, 15 S. E. Rep. 411.
    
    
      
       The act, Code, ch. 151, § 7, p. 602, says the attachment shall be sufficiently levied “as to real estate, by such estate being mentioned and described by endorsement on such attachment.”
    
   DANIF > i, J.,

delivered the opinion of the court:

It seems to the court, that at the time of the issuing of the subpoena and attachment in this case, the appellee Henry P. Ward was in fact, and in the true sense and meaning of the statutes regulating the subject, not a resident of this state.

It however seems further to the court, that there was no levy of said attachment on any real estate of the said Ward, no such estate being mentioned or described by endorsement on said attachment.

And the court, without deciding whether the certificate of J. P. Riely of the 14th day of March 1843, of the acknowledgment before him, by the said Ward, of the deed of trust of the same date, was sufficient in law to authorize the recording of said deed, is of opinion, that as the deed aforesaid purports to grant, assign and deliver.to the trustees, George W. Ward and C. Lewis Brent, all the estate, property and effects therein intended to be conveyed; and as it appears from the evidence, that the execution of said deed was accompanied or in good faith soon followed by a delivery of the personal property in said deed mentioned, there was a complete and valid transfer of said property to the said George W. Ward and C. Lewis Brent; and that the recording of the deed was in no *wise essential to the protection of said property against the demands of creditors who had not acquired liens on the same before said transfer was consummated ; and that as by the terms of the deed aforesaid, the payment of all the debts claimed by the appellant against the appellee Henry P. Ward, is expressly provided for, and so there can be no surplus in the hands of the trustees, after satisfying the demands of the creditors therein provided for, in which the appellant could have any interest (as his own claims would be paid before such surplus could arise], there was no property of the said Henry P, Ward in the hands of the said trustees liable to the attachment of the appellant.

The court is, however, also further of opinion, that the effort of the appellant to invalidate said transfer on the ground that the deed was not duly recorded, and to subject the property therein mentioned to the payment of his demands in preference to the other creditors therein secured, did not preclude him from a right to demand and have of the trustees his ratable portion of the proceeds of the property in their hands, in accordance with the provisions of said deed.

And the court is further of opinion, that as it is alleged in the bill and proved by an exhibit filed therewith, that the said Henry P. Ward, on the 12th of October 1852, assigned to the appellant certain scrip for five hundred and seventy-four dollars of stock of the Winchester and Potomac railroad company, and also a claim on Alexander Clark, due by note, and secured by a deed of trust on his property, as a security to indemnify the appellant on account of his acceptance of a draft for five hundred dollars, which is one of the debts provided for in the deed of trust of the 14th of March 1853: And as by the said deed the said Henry P. Ward assigned to the said trustees all money due him by bonds, notes or otherwise, and all stock that may be held by the said Henry P. Ward in any *joint stock company; and as the appellant admitted in his bill that the amount of his claims against the said Henry P. Ward was properly subject to the off-set of a store account, the amount of which was not known, the said trustees, though having in their hands nothing amenable to the attachment, were yet interested as representing the creditors, in seeing to a proper settlement of accounts between the appellant and the said Henry P. Ward, as also to a sale of the stock aforesaid and a collection of the claim on Alexander Clark, and a proper application of the proceeds to the payment of the draft aforesaid.

And the court is therefore also further of opinion, that whilst the Circuit court properly refused to subject the property in the hands of the trustees, to the satisfaction of the claims of the appellant, in preference to the debts of other creditors provided for in the deed of trust, it erred in dismissing the bill, except so much thereof as sought to subject the property of Henry P. Ward in the hands of the trustees, to the attachment. Therefore it is decreed and ordered, that the decree aforesaid, except in the particular just mentioned, be reversed and annulled, and that the appellee Henry P. Ward pay to the appellant his costs, &c. And it is ordered that the cause be remanded to the said Circuit court, in order that the balance due by the said Henry P. Ward to the appellant may be ascertained, and a personal decree rendered therefor; also a decree for the sale of the stock aforesaid in the Winchester and Potomac railroad company, and the application of the proceeds of sale towards the discharge of the appellant’s demand, with liberty to the appellant to amend his bill and make new parties, if so advised, with a view to obtain a decree for the sale of the property mentioned in exhibit Ho. 3, as conveyed by deed of trust to secure the note therein also mentioned, and for a like application of the proceeds *of such sale; and also a decree for the payment by the trustees of the share or portion of the trust fund which may be applicable under the provisions of the deed of trust of the said Henry P. Ward of the 14th day of March 1853, to the residue of the appellant’s demand.

Decree reversed. 
      See the principal case cited in Harden v. Wagner, 22 W. Va. 371.
     