
    *Sands v. Lynham, Escheator.
    March Term, 1876,
    Richmond.
    [21 Am. Rep. 348.]
    I. Aliens —Real Estate of — Escheat.—H, of foreign birth, died in 1867, seized and possessed of real estate in R, intestate and without any known heirs. The real estate of which he died seized vested in possession in the state without office found, or other proceedings at law.
    II. Same — Personal Representative of — Judgment against. — After the death of H, G sued his curator S for a large debt, alleged to be due from H, and there was a judgment by default. G then sued S, the curator, in equity, to subject the real estate of which H died seized for the payment of the judgment. There was a decree for a sale, and a sale in pursuance of the decree, when J became the purchaser of a part of the property. Held:
    1. Same — Same—Same — Decree for Sale — Parties.— The state not having been a party to the suit, the decree and sale are a nullity as to her, and gave J no title to the property purchased by him.
    2. Same — Same—Same—Same—Rights of Bona Fide Purchaser. — If J was a bona fide purchaser, he is entitled to be substituted to the rights of the creditor G; and upon showing that the claim of Gis just, to have the real estate subjected to its payment.
    III. Same — Real Estate of — Escheat—Injunction.—After the death of H, an inquisition of escheat was executed in 1868; and the jury, after finding the death of H without known heirs seized of the real estate, stated that certain parties were in possession, claiming under said sale. The escheator returned the inquisition in June 1869, when the property was advertised as escheated. J then filed his petition in the proper court, stating he held the property under his purchase, and asking for an injunction, The escheator and register were made parties; but before the escheator answered, the court made a decree perpetuating the inj unction. The escheator then filed a bill to review the decree. Held :
    1. Same — Same—Same—Same—Error.—It was error to make a decree passing upon the rights of the purchaser of the property, and perpetuating the injunction, *without the answer of the escheator. Code of 1860, ch. 113, § 8.
    2. Same — Same—Same—Proceedings by Escheator.— As the title of the state does not depend upon the inquisition, it cannot be affected by any errors or irregularities in the proceedings of the es-cheator.
    3. Same — Same—Same—Same.—The decree of the court was a decree by default; and tie bill of review by tlie escbeator, may be treated as a petition for a rebearing- of the decree.
    4. Same — Same—Same—Same—Bill of Review. — But it was a proper case for a bill of review.
    Solomon Haunstein, of foreign birth, died seized of an estate of inheritance in six houses and lots in the city of Richmond. He was unmarried and died intestate; and his estate was committed to Richard D. Sanxay, as curator. In March 1867 Win. Gleason, as assignee of John W. Thompson, recovered a judgment by default against Sanxay as curator of Haunstein’s estate, for S>7,000, with interest from April 1st, 1861 ; and in April in a suit brought by Gleason against Sanxay as curator, in the circuit court of Henrico, in which the bill and answer were presented at the same time, and the cause docketed by consent, the court made a decree appointing Sanxay a commissioner to sell the real estate of Haunstein, to receive the purchase money, and convey the property to the purchaser; and out of the proceeds of the sale pay off the judgment recovered by .Gleason. A copy of the decree and of the judgment are the only parts of the record in that case which have been filed in this; but there are two deeds, one from Sanxay as commissioner, to Johnson H. Sands, as the purchaser of two of the lots of Haunstein, and the other from Mary J. Wilkinson, who had been a purchaser at the sale by Sanxay, to Sands of the lot so purchased by her.
    In May 1868 an inquisition of escheat was held by Samuel M. Page, escheator of the city of Richmond, *when the jury found Haunstein did die seized of an estate of inheritance in the said six lots; that he died intestate and without heirs, and that there was no person known to the jury to be entitled to said lots; but that they had been by a decree of the circuit court of the county of Henrico, sold to satisfy an office judgment obtained against the estate of Haunstein since his death; and that there were then at the time of the said inquisition certain parties in possession of said lots claiming them under said sale.
    Page did not return his certificate of said inquisition to the register of the land office until June 1869; and the register then advertised the property as escheated.
    On the 10th of July 1869, Johnson H. Sands filed his petition in the circuit court of the city of Richmond, in which he set up his claim to the three of the Haunstein lots which he had purchased as before stated; he pointed to certain irregularities in the proceedings to escheat the property, and he insisted that the jury having found the sale of the property under a decree of the court, and the actual possession by the purchasers at that sale, the inquisition was not in favor of the right of the commonwealth to the said lots. And he prayed that Page might be made a party defendant to his petition and required to answer the same; and that the register of the land office might be made a party and enjoined from advertising the property as escheated; that the court would declare the land not escheated to the commonwealth, and for general relief. The injunction was granted.
    A copy of the order of injunction having been served on Page and the register, and Page not having appeared or made any defense, on the 17th of July, the court .took up the case, and being of opinion that *the verdict of the jury of inquisition shows upon its face, that the real estate mentioned therein was not liable to be escheated, and that the proceedings of the defendants under said verdict were wholly irregular and illegal, made a decree perpetuating the injunction.
    In January 1870, Page, the escheator, by leave of the court, filed his bill to review the decree of the 17th of July 1869. He stated his excuse for not having filed his answer in the short time before the decree was made. He insists that the proceedings on the inquisition were regular, that the petitioner had no title to the property, and it was error to proceed to decree .upon the petition until the escheator had filed his answer; as was expressly provided by the statute. Code ch. 113, & 8.
    Sands demurred to the bill, and also answered ; but the court overruled the demurrer, and set aside the decree of July 17th, 1869, on the last ground stated in the bill of review. And John A. Hynham having succeeded Page as escheator, he was substituted as defendant and directed to file his answer.
    Hynham in his answer insisted that the matters stated in the petition were insufficient in law and equity to entitle the plaintiff to the relief he sought, or any other relief in the premises against the commonwealth or her officer or agents: that the finding of the jury as to the sale of the lots was wholly irrelevant to the proper finding in said inquisition, &c., &c.
    The cause came on to be heard on the 16th of June 1874, when the court made a decree dissolving the injunction and dismissing the petition with costs. And thereupon Sands applied to this court for an appeal; which was allowed.
    * Young and Meredith, for the appellant.
    The Attorney General, for the appellee.
    
      
       Bill of Review — Petition for a Rehearing. — The principal case is cited in Kendrick v. Whitney, 28 Gratt. 655; Sturm v. Fleming, 22 W. Va. 413. See also, Laidley v. Merrifield, 7 Leigh 346; Mettert v. Hagan, 18 Gratt. 231; 3 Enc. Pl. & Pr. 592.
      
        ESCHEAT.
      I. PROPERTY SUBJECT TO.
      In General. — where the property of a British subject was sold during the Revolutionary War, by his attorneys in this country, without deed, before the act of October 1719, relative to escheats of British property, the sale was valid, notwithstanding the purchase money was not paid, and an escheat had been taken, after the sale, but before the passing of the act. King v. Hanson, 4 Call 259.
      A testator devised his real estate in Virginia to his executors to be sold by them, and gave the rents and profits of said lands, which might accrue before the sale, to his alien sisters, subject to the payment of his jnst debts and of certain legacies to his executors. Beld, that the title of the alien sisters was good against the commonwealth claiming the money for which the lands were sold; the testator having died without any lawful heirs, and his personal estate being sufficient to pay his debts. Commonwealth v. Martin, 5 Munf. 117.
      Trust Estates. — Land was purchased by an alien, but the conveyance was made to a citizen, upon an express trust that he should hold the same for the benefit of the alien and his heirs. Held, that the interest in such trust estate belongs to the commonwealth. Hubbard v. Goodwin, 3 Leigh 492.
      Where an agent for a company of British merchants, in the year 1771, purchased, on their behalf, a tract of land In Virginia, for a sum payable on demand, and received possession thereof for their use, and a credit for the money was entered in their books, the equitable title to, and possession of such land was thereby completely vested In the company, and escheated to the commonwealth, under the act of escheats of 1779, subject, however, to the payment of so much only of the purchase money remaining unpaid as did not exceed the sum for which the land was sold by the escheator, the British company being still liable for the balance of said purchase money. Day v. Murdoch, 1 Munf. 460.
      II. ENFORCEMENT.
      Parties. — An amicus curicc cannot move to quash an inquisition of escheat, unless he has 'an interest himself, or represents somebody who has. Dunlop y. Commonwealth, 2 Call 284.
      Where an alien possessed of real estate died intestate without any known heirs, a sale of such real estate, to satisfy a debt against the alien, in a suit to which the state was not made a party, cannot affect the title of the state. Sands v. Lynham, 27 Gratt, 291, 21 Am. Rep. 348.
      Irregularities. — As the title of the state does not depend upon the inquisition, it cannot be affected by any errors or irregularities of the escheator. Sands v. Lynham, 27 Gratt. 291, 21 Am. Rep. 348.
      Number of Jury. — Upon an inquest of office respecting property escheated, prior to the Act of 1794, the jury might have been composed of twelve jurors or of a greater or smaller number. See Va. Code 1887, § 2376; Bennet v. Commonwealth, 2 Wash. 154.
      Profits before Escheat. — where land, which an alien had purchased and conveyed to a citizen to hold in trust for himself and his heirs, escheats to the commonwealth, equity will not give the commonwealth the profits thereof, which accrued before the decree executing the deed of trust for the benefit of the state. Hubbard v. Goodwin, 3 Leigh 492.
      III.EVIDENCE.
      In escheat proceedings between the heirs of the alien and the commonwealth, where both parties claim under the same person, and the inquisition refers to a deed to the alien for the land, recorded in a certain county, a copy of said deed is evidence, although it was not recorded upon proper proof. Fiott v. Commonwealth, 12 Gratt. 564.
      Presumption. — Where alienage has once been established, it is presumed to continue. Houenstein v. Lynham, 100 U. S. 483.
      IV.EFFECT OF ESCHEAT PROCEEDINGS — WHEN TITLE OF STATE VESTS.
      , General Rule. — where an intestate of foreign birth dies seized and possessed of real estate and without heirs, the property vests eo instante in the state, and a judgment for debt and sale thereunder to which the state was not a party is a nullity, and the purchaser acquires no title. Sands v. Lynham. 27 Gratt. 291, 21 Am. Rep. 348.
      ■ Where Parties Are in Possession. — Inquisition of escheat for want of heirs vests possession in the commonwealth immediately, if the possession be vacant, but not otherwise; for if any one have adversary possession of the escheated land at the time of the office found, entry or seizure by the officers of the commonwealth is necessary to give it possession. And even when the possession is vacant at the time of the office found, the inquisition, in order to have the effect ver se of vesting the possession in the corn-inonwealtb, must be duly returned to the proper courts, according to the statute. 1 Rev. Code, ch. 82, § 2. See Va. Code 1887, § 2368; Commonwealth v. Hite, 6 Leigh 588, 29 Am. Dec. 226.
      Prior Sale. — The finding of an inquest of escheat in favor of the commonwealth will not take away the title of a purchaser claiming by a deed of bargain and sale, legally executed and recorded before the inquest was sealed, though without the knowledge of the bargainee till afterwards. Commonwealth v. Selden, 5 Munf. 160. See also, King v. Hanson, 4 Call 259.
      V.DISPOSITION OF ESCHEATED PROPERTY.
      Recovery by Heirs. — The monstrant must show good title in himself in order to entitle him to a judgment of amoveas manus against the commonwealth. French v. Commonwealth, 5 Leigh 512, 27 Am. Dec. 613.
      In a monstrans de droit to an inquisition of escheat, prosecuted under 1 Rev. Code 1819, ch. 82, § 7, the mon-strant is plaintiff. French v. Commonwealth, 5 Leigh 512, 27 Am. Dec. 613.
      Rights of Creditors. — Upon a petition under 1 Rev. Code 1819, ch. 82. § 14, by the creditor of aperson whose lands have been escheated, where judgment has been rendered for the whole amount of the demand, when the whole is not proved to be due, and it is uncertain to what part the proof extends, an appellate court will reverse the judgment and dismiss the petition. Watson v. Lyle, 4 Leigh 236.
      Upon such petition, the escheator, who is defendant, has the same right to plead the statute of limitations in bar of the petition, that a representative of the debtor would have to plead the statute in bar of an action, Watson v. Lyle, 4 Leigh 236.
      Grant of Escheated Lands by Commonwealth. — The commonwealth, under the existing laws, cannot grant escheated lands, without a previous inquest of office, and then not upon entries and surveys, as in the case of waste and unappropriated lands, but upon sales by the escheator. Alexander v. Greenup, 1 Munf. 134, 4 Am. Dec. 541.
      VI. STATUTORY AND TREATY PROVISIONS.
      Construction. — The statute, 1 Rev. Code 1819, ch 86, § 40, declaring entries or locations of lands that have been settled for thirty years prior to the entry or location, etc., invalid, and releasing any title which the commonwealth may be supposed to have thereto, has no application to escheated lands. (It is otherwise by the present statute. See Va. Code 1887, § 2374.) French v. Commonwealth, 5 Leigh 512, 27 Am. Dec. 613.
      where a citizen of Switzerland, who had removed thence to Virginia without denationalizing himself, leaves real estate in Virginia, his heirs, citizens of Switzerland, have by the treaty between the united States and the Swiss Confederation of the 25th of November 1850, the absolute right to sell said property, and to withdraw and export the proceeds thereof within such time as the laws of Virginia permit. Hauenstein v. Lynham, 100 U. S. 483, reversing Hauensteins v. Lynham, 28 Gratt. 62.
      What Law Governs. — The law which was in force at the time of the descent governs with ref erence to the capacity to take and hold real property. Hauensteins v. Lynham, 28 Gratt. 62.
    
   Staples J.

delivered the opinion of the court.

The inquisition finds that Solomon Haun-stein died seized of an estate of inheritance in the lots in controversy; that he died intestate and without heirs, and that there is no person known to the jurors to be entitled to the same; but that said lots have been sold by a decree of the circuit court of Hen-rico county to satisfy an office judgment obtained against the "estate of Solomon Haunstein since his death, and that there are now certain parties in possession of said lots claiming under said decree.

It is proper further to state, though it is not part of the inquisition, that the decree referred to, was rendered on the 29th April 1867, in a suit brought, or purporting to have been brought, by William Gleason, assignee of John W. Thompson, against Richard D. Sanxay, curator of the estate of Solomon Haunstein. No copy of the hill, or of any exhibit in the record of that suit is filed in this. It does not appear that any order of publication was ever made in the cause, or that there was any party defendant other than Sanxay the curator. It would seem that the bill and answer were filed on the same day, and on that day the cause was brought on for a hearing by consent, and a decree rendered for a sale of the lots now in controversy.

Upon this state of facts we are to determine what are the rights of the purchasers under that decree. In crder to arrive at a satisfactory conclusion upon that point, it becomes necessary to inquire what was the precise status of the real estate of Solomon Haunstein *upon his dying intestate and without heirs. Was the title thereto immediately vested in the commonwealth, or was an inquest necessary to effect that object.

It is well settled that an alien may take lands by grant. But while he has capacity to take, he has none to hold, and the lands may at once be seized to the use of the state. But until they are so seized, the alien has complete dominion over them, and his title cannot be divested except upon office found.

And so if lands are devised to an alien, he acquires a complete though a defeasible title by virtue of the devise; and this title can only be taken away by an inquest of office, which must be perfected by entry or seizure where the possession is not vacant.

In these cases, and there may be others, it seems that the inquisition is necessary, to vest a complete and perfect title in the state.

An alien cannot, however, take by descent, because the law will never cast the freehold upon one who is incapable of holding, and as the freehold can never be kept in abeyance for an instant, in such cases it vests immediately in the state without inquest of office.

For the same reason, if an alien dies intestate, or a citizen dies without inheritable blood, his lands belong to the state. They rest immediately without office found. They sink back into their original condition of common property for the general benefit. The rule on this subject is thus laid down by Chancellor Kent in 4 Vol. Com., page 423: ‘ ‘It is a general principle in the American law, and which I presume is everywhere declared and asserted, that when the title to land fails from a defect of heirs, it necessarily reverts to the people, as forming the common stock to which the whole community is entitled. Whenever *the owner dies intestate, without leaving any inheritable blood, or if the relatives he leaves are aliens, there is a failure of competent heirs, and the land vests immediately in the state by operation of law. No inquest of office is necessary in such case.

In Montgomery v. Dorion, 7 New Hamp. R. 475, a well considered case, the following propositions are laid down. '

“If an alien purchase lands and die, the lands instantly vest by escheat in the state, without any inquest of office. But while the alien lives, the lands cannot vest in the state without office found.
“In this state (New Hampshire) the lands of which a citizen dies seized, without heirs, revert in all cases to the state; provided he dies intestate. Upon principle, it would seem that lands must in such a case vest immediately in the state without any inquest of office, as they do in England in the crown when the king’s tenant dies without heirs.
“There might be cases in which an inquest of office might be expedient, as where one person is found in possession, claiming as heir or otherwise; but an inquest of office is in no such case essential to vest the title in the state.”

In support of these positions numerous other authorities might be quoted; but a simple reference to the cases is all that is necessary. Mooers v. White, 6 John. Ch. R. 360; Jackson v. Beach, 1 John. Cases 399; Stevenson and wife v. Dunlap’s heirs, 7 Monr. R. 134; Fry v. Tucker, 2 Dana R. 38; Johnson v. Hart, 3 John. Cases 322; Collingwood v. Pace, 1 Sid. R. 193; Stokes v. Dawes, 4 Mason R. 268; Fairfax’s devisee v. Hunter’s lessee, 7 Cranch R. 663; O’Hanlin v. Den, 1 Spencer’s R. 31; White v. White, 2 Metc. (Ken.) R. 185; Hinkle’s lessee v. Shadden, 2 Swan’s R. 46.

*The case of Commonwealth v. Hite, 6 Leigh 588, is not in conflict with these authorities. That was an information for intrusion on land of the commonwealth. Being in the nature of an action of trespass quare clausam fregit, it will not be maintained except in the case of actual possession. And the chief, if not the only question, was, whether the effect of an inquisition of office was to vest the possession in the state. It was held by this court, that when the possession of escheated lands is vacant at the time of office found, the effect of that proceeding is at once to vest the state with possession. If the possession is not vacant, it does not become so vested, and an entry or seizure by the state is essential in order to maintain an information for intrusion. This was the sole point decided by the court. It is very true that some expressions fell from Judge Tucker to the effect that the crown can only take by matter of record. All of which is strictly accurate as applied to an alien claiming by grant or by devise. He is in by title, having the freehold, which can only be divested by some act in the nature of a judicial proceeding: Because the king may not enter upon or seize any man’s possession upon bare surmises, without the intervention of a jury.

But as, according to the common law, lands cannot be in abeyance or without an owner even for a single minute, it follows necessarily that upon the death of the person last seized, without heirs capable of inheriting, the title must immediately vest in the state without office found.

The doctrine of escheat is originally derived from the old feudal law. An inquisition does not constitute an escheat. It is simply the means by which the state furnishes authentic record evidence of her title. The word escheat is derived from the French, and properly Signifies the falling of the lands by accident to the lord of whom they are holden, in which case the fee is said to be escheated. It is a species of reversion by which, upon the death of the tenant without heirs, the lord becomes entitled to the estate. While at common law a writ of escheat was necessary to vest the estate in the lord, when the king became entitled upon the death of the tenant without heirs capable of inheriting, no office was necessary; but he might, enter and seize without judicial proceeding, because in such cases the freehold was cast upon him by law in actual possession.

In this country the doctrine of escheat rests upon the broad principle, that when the title to land fails from defect of heirs, or when from any cause there ceases to be an individual proprietor of the land, it reverts back to the community. 1 Lomax’s Digest 774, 777; 3 Green’s Cruise on Real and Per. Property 213. In such cases, the title being in the state upon the death of the owner, no inquest of office is necessary.

If the possession be vacant at the death of the owner, both title and possession are at once transferred to the state. If, on the contrary, the land be held by adversary possession, the state must enter by her officers. Such an entry may perhaps be necessary to enable the state to make a valid grant of the land, or to maintain an information for intrusion; but it is not essential to the title, any farther than possession is to be considered a.n elment of title.

The state, of course, takes the lands subject to any liens created by the owner, and also to any valid debts contracted by him. But so does the heir, if there is one. This title is none the less complete, because perchance the land may be taken to satisfy the claims of creditors.

*In the case before us, upon the death of Solomon Haunstein intestate, without heirs, his real estate became vested eo instanti in the state; the possession being vacant, was also transferred along with the title. Whoever entered into the possession, did so in subordination to her title. When therefore the jury of inquest found that certain persons were in possession of the lots at the time of the inquisition, which was more than two years after the death of the owner, they found an immaterial fact, which did not affect the title previously acquired by the state.

It seems, however, that the appellant was one of the persons in possession, claiming title to the property under the decree of the circuit court of Henrico county. And it is insisted that this decree, having been rendered by a court of competent jurisdiction, is conclusive of every question decided by it until reversed by some proper proceeding instituted in the court which pronounced it.

No one will maintain that the decision of a court, having jurisdiction of the subject matter in a case before it, can be collaterally drawn in question for any errors therein, or in the proceedings which led thereto. But it is equally beyond controversy, that a decree, however regular in its forms, only binds parties and privies: It can not affect the title of a person not before the court. The exceptions to this rule are very few, and have nothing to do with the matter in controversy. It may be that a purchaser at a judicial sale is not affected bv errors in the proceedings which led to the decree. He certainly is affected by a want of proper parties before the court. In this state he takes all the risks of the title. He is bound at his peril to see to it that the persons having title to the property are parties to the suit. Without this, no act of the *court can give him a valid title. The curator of Solomon Haun-stein’s estate was the only party defendant to the suit in which the decree of sale was rendered. He had nothing to do with the real estate; not the shadow of a title to, or interest in it. If the appellant acquired title by his purchase, whose title did he acquire? Certainly not Solomon Haunstein’s, as all his interest terminated with his death; not that of any heirs, as there were none in existence. Th,e title of the state? It is not pretended. Her rights could not be affected by any orders or decrees in a suit to which she was not a party. If authority were needed to sustain so plain a proposition, it may be found in the case of Hudgin v. Hudgin’s ex’or et als., 6 Gratt. 320. The decision of this court in that case is conclusive upon this branch of the present case.

It is very questionable, to say the least, whether the general statutes, making real estate assets for the payment of debts, and authorizing suits in equity for the sale and administration of the same, apply to es-cheated lands. The design of those statutes was to give to creditors a remedy against heirs and devisees in the event of a deficiency of personal estate; and all the provisions have reference to lands which have been devised by will, or have descended upon heirs in cases of intestacy.

In cases of escheated lands, the 27th section of chapter 113, Code of 1860, prescribes the mode by which the creditor may enforce his demand against the realty, where there is, no personalty. It is very true that this section only provides for those cases in which there has been an actual inquest of office. It has been argued, that the creditor may be delayed for years, if he is compelled to await an inquisition before instituting proceedings to enforce his demand. It will be *seen, however, upon an examination of the various provisions in regard to escheats, that but little difficulty is likely to occur in this respect. Hach commissioner of the revenue is required annually to furnish a list of lands in his district of which any person shall have died seized of an estate of inheritance, intestate and without any known heir. On receiving such list, or upon information from any person in writing and under oath, the escheator is required at once to hold inquest to determine whether the lands have escheated to the commonwealth. Code of 1860, chap. 113, sections 3 and 4. These provisions afford to the creditor the fullest means of enforcing prompt action on the part of the state in the assertion of his claim; while the 27th section gives to him adequate remedies for the recovery of his demand. Any small delay that may occur by this course bears no sort of comparison to the mischiefs which will result from the establishment of a contrary doctrine. To hold that upon the death of a person without known heirs, any one claiming to be a creditor may file a bill in equity, with a personal representative perhaps in the interest of the plaintiff as the only defendant, and obtain a decree for the sale of the real estate, and thus divest the title of the commonwealth, is to open the door to the perpetration of the grossest frauds and injustice. The claim may be wholly fictitious. The sale of the lands may be altogether unnecessary. And even if necessary, they may be sold at the most ruinous sacrifice. Who is to protect the interests of the state against abuses and frauds of this description? It is impossible to foresee the mischiefs that will ensue if this court shall establish a rule of this sort.

This identical question has been the subject of adjudication in other states. In every case I have seen *it has been held, that upon the death of the owner of lands, intestate, without heirs capable of inheriting, the title, eo instanti and before office found, vests in the state; and the title could not be divested by a sale made under the decree of any court, unless the state in some form is a party to the proceeding. Hinkle’s lessee v. Shadden, 2 Swan’s R. 46; O’Hanlin v. Den, 1 Spenc. R. 31-43; 1 Zabriskie R. 582.

If these views be correct, the appellant acquired no title by his purchase valid as against the state. As the title of the latter does not depend upon the inquisition, the alleged errors and irregularities in the proceedings of the escheator are not of the slightest consequence. The rights of the state are not affected by them. The appellant can derive no advantage from them.

The decree of the circuit court of the city of Richmond entered on the 17th day of June 1869, injoining the sale of the lots in controversy, was therefore manifestly erroneous upon its face. It was erroneous not only for the reasons stated, but for the further reason, that it was rendered without an answer for the escheator. The provisions of the 8th section are positive, that the es-cheator shall file an answer stating the objection to the claim; and the cause shall be heard without any unnecessary delay, upon the petition, answer, and the evidence. It was the duty of the court to require such an answer before adjudicating the rights of the state. The decree of the circuit court was a decree by default; and the bill of review subsequently filed by the escheator may be treated as a petition for a rehearing. Such an application is required in all cases of decrees by default before an appeal is taken. But even if it be treated as a bill of review, it was a proper case for such a bill for the reasons already stated.

*The decree of the 16th June 1874 is, however, erroneous in one respect. If the appellant was a purchaser in good faith, he had the right to be substituted to all the rights and remedies of the creditor whose debt was paid by the proceeds of sale ,of the lots in controversy. This was the course pursued by this court in the case of Hudgin v. Hudgin’s ex’or, 6 Gratt. 320, already referred to. This court having decided in that case, that the devisees were not bound by the decree for the sale of their lands in their absence, was of opinion that the purchaser having bought in good faith, and the claim of the creditor being a just one, the former was entitled upon a dis-affirmance of the sale, to be substituted to the rights of the creditor, and to charge the land with the amount of the debt paid by him.

This, of course, involves an inquiry into the validity of the claim asserted by William Gleason, as assignee of John W. Thompson. It may be, as is alleged, that this claim was utterly fraudulent. This record does not furnish any reliable or satisfactory information on that subject. This court cannot undertake to affirm positively that it is a fictitious claim. If such be its character, neither the state nor the lands of which Haunstein died possessed can be made chargeable with it. It will devolve upon the'appellant to show that the. debt is a just one; and that must be done by evidence other than the judgment in question. This evidence he may be able to furnish. At all events, he should have an opportunity of doing so, if desired by him. The decree is therefore affirmed dissolving the injunction, but the same to be retained in the circuit court for the inquiry, if desired by the appellant.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree of the circuit court dissolving the appellant’s injunction. It is therefore adjudged, ordered and decreed that said decree be affirmed, and that the appellant pay to the appellee his costs by him expended in the prosecution of his appeal here.

The court is further of opinion, that the appellant upon showing that he was a bona fide purchaser of the lots in controversy, and the claim asserted by William Gleason, assignee of John W. Thompson, is a valid debt, justly chargeable upon the estate of Solomon Haunstein, deceased, would be justly entitled to be substituted to all the rights and remedies of said Gleason against said estate. The cause is therefore . remanded to the said circuit court, with instructions to retain the same a reasonable time in that court, to afford the- appellant an opportunity, if desired by him, of establishing the facts upon which his right of substitution depends.

Decree amended and affirmed. 
      
       Process against Defendant in Military Service. — The principal case is probably the only adjudication on the subject of the exemption of persons in the military service. But the same doctrine was followed in the analogous case of Neale v. Utz, 75 Va. 486, where the principal case was cited. See also, Prentis v. Com., 5 Rand. 697; M’Pherson v. Nesmith, 3 Gratt. 237.
     