
    NATHANIEL H. BAIRD v. HENRY R. BAIRD, LARKIN BROOKS, and others.
    A Us pendens being notice to all the world, a sale of land which is the subject of a suit in Equity, before a decree is r-endered, will not be regarded, and the land may be sold under an execution issued upon the decree when rendered.
    In such case a supplemental bill to enforce the decree in the original suit, making the purchaser of the land a party, is unnecessary, and will be dismissed upon demurrer.
    
      {Rogers y. Holt, ante 103, and Gee v. Hines, ante 815, cited and approved.)
    Bill, in the nature of a supplemental bill, filed to Spring Term 1867 of the Court oí Equity for Person. A demurrer having been put in was set down for argument at Fall Term 1867, when the demurrer was overruled by Mitchell J., and the defendants appealed.
    At Spring Term 1858 of the Court of Equity for Person, an ex parte petition was filed by the plaintiff, N. H. Baird, the defendant Henry R. Baird, and others, devisees and legatees of William Baird (who died in the year 1857), praying for a valuation by commissioners of certain lands conveyed by the testator to the petitioners by deeds of gift in his lifetime, and for a partition of slaves bequeathed in his will in accordance with the following provision: “ I direct that all the residue of my estate be equally divided between my sons John, &c., (naming them) with the understanding that each is to account-for what 1 have advanced to each in my life-time, so as to make all as nearly equal as possible. I have been negligent in keeping accounts of advancements, and I trust they will do justice among themselves,” &c. Commissioners -were appointed according to the*prayer of the petition, and at Fall Term 1859 they made their report stating the valuation of the several tracts of land, and charging the more valuable with the payment of certain sums to render the shares equal. Exceptions to the report were filed by Henry R. Baird, and it was set aside, and other commissioners were appointed. They made their report, which was of .a similar character to the other, to a subsequent Term, and exceptions to it were filed by John Baird and Nathaniel H. Baird.' The cause was continued to Spring Term 1867, when the exceptions were withdrawn and the report confirmed. The decree confirming the report, in accordance therewith, ordered Henry'jR. Baird (one of the defendants in this cause) to pay to Nathaniel Ii. Baird (the plaintiff) the sum of $1940. 84| to make the share of the latter equal, &c.
    The present bill recites these proceedings and states that of 1788 acres conveyed to the defendant H. R. Baird, by his father William Baird, by deed of gift in his life time, H. R. Baird had sold portions before the death of Ins father and also that after his death (by deed dated-) he conveyed to the defendant John Baird 200 acres, and (by deed of trust dated September 26th 1866,) to the defendant Larkin Brooks 600 acres upon trust to secure the payment of certain debts due to Josephus Younger and others, who were made defendants. It was also alleged that the cestuis que trust sued out attachments against the defendant H. R. Baird in the year 1866, but prior to the date of the deed to Larkin Brooks, and had them levied on a portion of the 1788 acre tract, and that at September Term 1866 of the County Court of Person judgments therein were rendered against H. R. Baird, but that no sale had been made.
    The prayer of the bilí is that the defendant be enjoined from selling the land conveyed to him under the deed in trust, that the cestuis que trust may be enjoined from levying their executions upon and selling any part of the original tract of H. R. Baird, that the said tract or so much thereof as might be required, should be sold under an order of the court, and the proceeds applied to the payment of the sum charged by the former decree in favor of the plaintiff against the defendant H. R. Baird; and for further relief.
    
      Phillips & Battle, for the appellant.
    The bill is unnecessary, either as supplemental, or to execute a decree.
    1. If, as in partition, the $1940 be a charge under the decree in the original petition, that petition, as lis pendens, bound all the lands of H. E. Baird derived from his father, and execution might issue under that decree against the parts sold, as here, pendente lite,as well as against that retained. Therefore this proceeding must be dismissed as being unnecessary. Rogers v. Holt, ante, 108. This follows especially in view of the principle that sums charged in partition of land are charges upon the land only. Young v. Trustees of Davidson College, ante, 261; Jones v. Sherrard, 2 D. & B. Eq., 179; Button v. Edwards, 5 Ire. Eq., 425.
    2. If the former petition was not a proceeding strictly analogous to partition under Rev. Code, ch. 82, it did not bind the lands until decree rendered. In such case H. R. Baird, and not the land, would be the primary debtor. The decree would therefore have only the ordinary effect of a decree for money.
    
      Graham,, contra.
    
    1. (a) This may be entertained as a bill to execute the decree in the former case, or a supplemental bill, rendered necessary by the alienations of some of the lands received by H. R. Baird from his father, in which parties are necessary who were not such in the case first before the court. For while all of H. R. Baird’s lands are to be brought into hotchpot, as it were, for purposes of valuation, only those can be proceeded against, for satisfaction, which had not been aliened by him, before his father’s death ; and where any of them have been aliened since, the alinees are to be made parties. Adams’ Eq., 415, and note; 2 Mad., Ch. 524-5. See also 3 Dan. Ch. Prac., 1689-92; 2 Vern., 407; Redesdale 69, 91, 95; 3 Atk. 217; Ld. Carteret v. Paschal, 3 P. Wms., 197; Binks v. Binks, 2 Blig-h P. C., 593, where it is said such a bill may be brought against a person claiming as assignee of a party to a decree.
    (b) The amount awarded to make Nathaniel’s share equal to Henry’s is a charge on the land — as in cases of partition under Rev. Code, ch. 82. ( Wynne v. TunstaU, 1 Dev. Eq., 23; Jones v. Sherrard, 2 D. & B. Eq., 179; Sutton v. Edwards, 3 Ire. Eq. 425); for the act is but in affirmance of former rules of equity, making and enforcing charges to secure equality. Adams’ Eq., 231, and cases cited in note. The act was necessary to give County and Superior Courts of law like powers.
    The will of the testator and the proceeding of these parties under it was intended to be in strict analogy to a bill for actual partition. In this view it was entertained by the court, and the charge in question imposed.
    (c) Every purchaser, after Wm. Baird’s death and the pendency of suit for assessment, is privy to his alienor and affected by the decree. Goble v. Clapp, 1 Jon. Eq, 173.
    2. The bill may also be entertained as a bill for • the specific execution of an agreement that every son of the testator should bring his land into assessment so as to have equality in their allotments, as directed by the testator’s will as a condition to their participating in the valuable legacy of slaves and other property. — Dan. Ch. Prac. 974, 6, 7. The admissions of the parties thus put in writing is sufficient to bind them. — the signature of an agent being all that is necessary. Oliver v. Dix, 1 D, & B. Eq., 108; Osborne v. Horner, 11 Ire., 359. It is sufficient that the Solicitor signs his name — the nature of the agreement appearing in the instrument. Their suit therefore was, in the nature of the submission to arbitration with mutual stipulations to stand by the award; but the award cannot be enforced without this suit because of the alienations of H. R. Baird to the other defendants.
   Battle, J.

After a careful examination of this case we are unable to perceive any principle, upon which the bill can be sustained. It is said by the counsel for the plaintiff to be a supplemental bill, filed for the purpose of having a former decree executed. With that view is there the slightest necessity for it? We think not. The proceedings in the two causes show that by a decree made in the first cause, at the Spring Term 1867 of the Court of Equity for Person county, a certain sum of money was charged upon a certain tract of land belonging to the defendant, Henry R. Baird, in favor of another tract belonging to the plaintiff, and w7as ordered to be paid by the former to the latter. While the suit was pending, a part of the land of Plenry R. Baird was by him assigned to some of the other defendants, and the present suit to execute the-decree, was brought to the next succeeding term of the court. It seems to be based upon the supposition that the lands of the defendant Henry R. Baird, in the hands of his assignees, could not be reached by any process of the court, -without a supplemental bill to bring them in as parties. In that we are of opinion that it erred. The alleged lien w7as upon the land, and as the assignees acquired their title to it by purchase while the former suit was going on, the decree which was finally made in it could be enforced at once without making them parties The plaintiff had the right to have fruits of his decree soon after it was rendered, by any means which the law allowed to make it most effectual. If it were necessary to proceed against the land itself, which was charged with the payment of the money, the land might be taken and sold no matter into whose hands it had come while the suit was pending. As to the effect of a Us pendens, see Adams’ Equity 157, and the cases referred to in Note 2, of the American edition.

It having been thus shown that the present suit was entirely unnecessary to give to the plaintiff the full effect of the former decree, it follows that the bill cannot be maintained, but must be dismissed. See Rogers v. Holt, ante 108, and Gee v. Hines, decided at the.present term.

In coming to the conclusion at which we have arrived, it will be perceived that we have taken it for granted that the plaintiff is right in giving to the decree in the former suit the same effect that it would have had as a decree for parti tion under the Rev. Code ch. 82, sec. 1, in which a dividend of greater value is charged with a sum of money in favor of a dividend of inferior value, for equality of partition. It is -manifestly unnecessary for us to decide whether it is so or not, for if it be not so, then of course the bill will not lie, because it is based solely upon the correctness of the contrary supposition.

The bill must be dismissed with costs.

Per Curiam.

Decree accordingly.  