
    *Price v. Thrash.
    July Term, 1878,
    Wytheville.
    I. Bill by T, a judgment creditor of P, against P and liis alienees, to subject to the satisfaction^ of his judgment the land still held by P, and the lands in the hands of the alienees, charges that the deeds to these alienees were fraudulent and without consideration. The bill is taken for confessed as to all the parties but P, who answers denying the. fraud, and saying they were on valuable consideration. The court below holds the deeds to have been fraudulent, and decrees a sale of the land, and P alone appeals — Held :
    1. Deed — Fraud—Decree—Appeal—Rig" lit of Grantor to Question Fraud. — The alienees are the parties interested in this question, and they not having appealed, P cannot question the fraud in this court.
    2. Same — Same—Judgment Creditors— Equity Jurisdiction. — It is not necessary, since the revision of the law in 1849, that a judgment creditor shall exhaust his remedies at law before going into equity to subject the land of his debtor or his fraudulent alienees to satisfy his judgment. Code ot 1873, ch. 182, §§ 6, 9.
    3. Same — Same—Same—Same.—The remedy in equity against the real estate is not dependent upon inadequacy of the legal remedy to satisfy the judgment out of the personal estate, or the insufficiency of such estate for that purpose, but it may always be resorted to whether there be or not personal estate of the debtor sufficient to satisfy the judgment.
    II. In this case P says he was the surety of W in the bond on which plaintiff's judgment was founded, and that W had conveyed to J a large tract of land, among other things, to secure P in his suretyships for him, and tnis trust fund was ample to satisfy the debt; and he insists that tne plaintiff shall make J a party, and subject this trust fund before his land is subjected to the payment of the debt. But it appearing that W is a bankrupt and that the plaintiff had no judgment against him, and *this debt not being mentioned in the deed, and P not proving that he was a surety of W in the debt, the plaintiff was not bound to proceed against that trust fund.
    ill. Parties — Purchasers Pendente Lite.— After the bill was filed one of the alienees of P conveys a part of the land conveyed to him by P in trust to secure a debt. This was a conveyance 
      pendente lite, and it is not necessary that the plaintiff should amend his bill and make the trustee and creditor parties, in order to dispose of the subject.
    : V. Judicial Sales — Interlocutory Decrees —Amendments—Costs.—There being no averment in the bill or admission or proof that the rents and profits of the land retained by P will not pay the debt in live years, it was error to decree a sale of the land before having this enquiry made. .But the decree appealed from being interlocutory, this court will amend the decree in this respect, and as amended affirm it, with costs to the appellee.
    In January, 1874, Valentine Thrash brought his suit in equity in the circuit court of Roanoke county, to enforce the lien of a judgment which he had recovered at the November term, 1873, of that court, against Tazewell Pnce. The judgment was founded on a bond executed to Thrash by Warfield Price and Tazewell Price on the 13th of September, 1862, for ,$3,000, payable on demand, and it being a Confederate debt, it was scaled by the court, and Warfield Price having been declared a bankrupt, judgment was rendered against Tazewell Price for $1,200, with interest from the 10th of April. 1865, and $8.72.
    The bill, after setting out the judgment and bond, states that Tazewell Price was the owner of an undivided moiety of three thousand four hundred and sixty acres of land lying in the counties of Roanoke, Franklin and Floyd, purchased by him and his brother Warfield Price, and conveyed to them jointly by deed bearing date the 18th of May, 1863; that on the 22d of February, 1869, Tazewell Price and wife, for the pretended sum of $1,800, conveyed to Charles H. Hancock, the brother of Mrs. Price, four hundred and twenty acres of this land; that on the 24th of February, 1869, Tazewell Price conveyed *to Christopher Hancock, in trust for i the sole and separate use of his wife Elizabeth, another portion of the said moiety of land containing six hundred acres, the pretended consideration of which deed was that Tazewell Price had received the sum of $2,280, which was due to said Elizabeth in her own right from the estate of her father, Benjamin Hancock. These two deeds were recorded on the same day, viz: the 21st of June, 1869. And said Tazewell Price and wife, by deed bearing date the Cth of February, 1873, conveyed to their son-in-law, N. Hockman, and his wife Harriet, and to their sou, Charles W. Price, all their interest in four hundred acres of the same land. The pretended consideration for this deed was one dollar. Said Price has thus conveyed away about fourteen hundred acres of his moiety .in the tract of three thousand four hundred and sixty acres, leaving only three hundred acres of mountainous land of little value, wholly insufficient to pay the plaintiff’s judgment.
    Tie charges that there was no consideration for the deed to Charles R. Hancock, but it was conveyed to him to be held in secret trust for the benefit of said Price and his wife and their children; and said Hancock had never taken possession of the land, but it has been used and enjoyed by said Price in the same manner he did before the conveyance. He charges further that the wife of Tazewell Price had no separate estate derived from her father; and the pretended agreement that in consideration of $2,280 received by said Tazewell from the estate of the father of his wife he was to settle upon her lands to that amount, was a mere subterfuge to defraud his creditors; that by the will of Benjamin Hancock. the father of Mrs. Price, which he exhibits, Tazewell Price and his wife were expressly excluded from all interest in his lands, and she derived from the personal estate of her father in August, 1862, as her share, $1,880, which *was paid in Confederate currency. This sum was received by Tazewell Price, and it belonged to him; and he also received as a legatee in said will_ $400 left to him by the testator; and this is added to the first-mentioned sum of $1,880, to make up the sum of $2,280 stated as the consideration of the deed.
    He further insists that if Mrs. Price had been entitled in her own right to the said sum of $1,880, and she and her husband had the right to make such an agreement as is specified in said deed, the land conveyed, including as it does the mansion-house and other improvements, was worth four or five times as much as $1,880 of Confederate money in •August, 1862. The deed to Hockman and wife and their son, Charles W. Price, was voluntary. without consideration, and therefore void as to creditors. And making Tazewell Price and Elizabeth his wife, and the grantees in the several deeds mentioned, parties defendants, he called upon them to answer all the allegations of the bill as fully, &c.. and he prayed that the deeds might be set aside .as to his judgment, and the lands, or so much as might be necessary, sold for the payment of his judgment and the costs of this suit, and for general relief.
    The bill was taken for confessed as to all the defendants except Tazewell Price. He demurred, pleaded and answered. In his plea he avers that the debt represented by plaintiff’s judgment is the joint property of the 'plaintiff and Joseph M. Terry; and that by deed bearing date the 24th of January, 1874, the defendants, Hockman and wife, conveyed one hundred acres of land conveyed to them and Charles W. Price, to Lewis Huff, trustee, in trust to secure a debt to W. D. E. Duvall, and prays whether he shall make any further answer to the bill until it is amended and the said Terry, Huff and Duvall are parties thereto.
    Price in his answer admits fhe judgment. but says that *he was the surety of Warfield Price, the principal debtor. He says that the plaintiff, since this suit was commenced, is pursuing his remedy at law. suing out execution under which the sheriff has levied on and seized a portion of respondent’s personal effects, and applied the proceeds in partial ■ satisfaction of the judgment, and that plaintiff has sued out processes of garnishment against three alleged debtors of respondent, at the present time in this court on its law side. And he submits whether plaintiff shall be permitted to harass him by prosecuting his remedy in the two tribunals of law and equity at the same time for the same debt.
    He says Warfield Price and himself purchased the tract of three thousand four hundred and sixty acres of land; that they after-wards divided the same, not finally, but so as to give respondent the eastern portion and said Warfield the western portion, leaving the dividing line unfixed; that War-field Price executed a deed by which he conveyed to Joseph M. Terry his portion of the land, in trust, to secure respondent the sum of $708.07, due by bond, and also to indemnify respondent as his surety on debts due from him, meaning to include the debt of the plaintiff; that this deed enures to the benefit of the plaintiff, and that he is bound to exhaust this security before he can subject the lands of the respondent, especially as said Joseph M. Terry, as respondent has been informed and charges, has become interested in said judgment to the extent of half ownership thereof. And he avers that said deed of trust, which he makes an.exhibit with his bill, affords ample means of paying the whole debt.
    As to the deeds referred to in the bill, he says that to Charles R. Hancock was not without valuable consideration, nor was it designed to hinder, delay and defraud respondent’s creditors, but was on the consideration of $1,800, which was paid respondent in the presence of *witne?ses. As to the deed of Christopher H. Hancock, in trust for respondent’s wife, he also denies it was intended to hinder or defraud his creditors. That whatever might be his right to the money coming from her father’s estate, at law, he was advised, that a court of equity would regard it as substantially and justly the property of the daughter, his wife, according to the expressed wish of her father; and accordingly respondent, having been informed that in equity a wife is entitled to a settlement out of her property or out of the property she brings her husband, &c., he says the said conveyance was not voluntary, and certainly not made to hinder or defraud his creditors. He admits that the deed to Hock-man and wife and Charles Price was voluntary, and a pure gift to his children, but he denies that it was intended to hinder or defraud his creditors. He says he is individually free from debt, all his individual debts not amounting to more than $300; that he is bound as surety for the plaintiff’s debt, but that he had always looked upon the deed of trust upon the land of Warfield Price as completely securing that debt, and he insists it is still ample'to secure it. And independent of that security, respondent owns property, real and personal, more than three times sufficient to pay all that is due on said judgment. He says that the three hundred. acres of the large tract, which he still retains, is worth fully $8 per acre; he had in fact been offered $10 per acre for a part of it. He refers to other property he owns, real and personal, including the debt secured by the deed of Warfield Price; and he estimates that this property is worth at the least $5,000, more than three times the value of the balance of the said judgment.
    In conclusion, he says his goods and chattels and choses in action are more than sufficient to satisfy said judgment, and the plaintiff has had ample remedy and means of satisfaction by legal process without resort to chancery *to subject respondent’s land; that the lands of Warfield Price, conveyed in trust to secure plaintiff’s debt, should be first exhausted; and if it should become necessary to resort to respondent’s land, that retained by him should be first applied to the satisfaction of the judgment.
    The cause came on to be heard upon the bill taken for confessed as to all the defendants except Tazewell Price, and upon his demurrer, plea and answer, and the exhibits, when the court overruled the demurrer, and being of opinion that the lands in the bill mentioned were subject to the lien of the plaintiff’s judgment, decreed that unless the defendant do within sixty days fmm the date of the decree, pay to the plaintiff the sum of $1,200, with interest, &c., subject to certain credits stated, commissioners named should sell at public auction, &c., the lands in the bill mentioned, or so much thereof as may be sufficient to satisfy and pay the aforesaid demand, upon the terms of $250 cash, and for the residue of the purchase money upon a credit of one, two and three years, with interest from the day of sale, taking from the purchaser bonds, &c. But in making said sale the land not aliened to be first sold, and then, if necessary, enough of the lands aliened as will be sufficient — the land last aliened to be first sold, &c. From this decree Tazewell Price obtained an appeal to this court.
    G. W. Hansbrough, for the appellant.
    J. F. Johnson and Logan, for the appellee.
    
      
      Enforcement of Judgment Liens — Equity Jurisdiction. — Under Va. Code 1887, sec. 3571, it is not necessary that there should be any other ground for jurisdiction in order to enforce a judgment lien in equity. See Hutcheson v. Grubbs, 80 Va. 257; Gordon v. Rixey, 76 Va. 704.
      Remedy against Real Estate. — The doctrine set forth in the third headnote is sustained in Stovall v. Bank, 78 Va. 191.
      Parties — Purchasers Pendente Lite. — The principal case, as to its holding that the purchasers pendente lite were not necessary parties, is expressly affirmed in McGee v. Johnson, 85 Va. 161. See also Williamson v. Jones, 39 W. Va. 234; Arnold v. Casner, 22 W. Va. 454.
      Interlocutory Decree — Appeal.—The rule laid down in the fourth headnote is affirmed in Mining Co. v. Chase, 95 Va. 56.
    
   BURKS, J.

The appHlee’s bdl was fiM to enforce his judgment lien against the unaliened lands of the appellant, and also against other lands which had been aliened by him to his wife, children and brother-in-law, parties to the suit, and which lands are charged in the bill to *have been conveyed with the fraudulent intent to hinder, delay and defeat his creditors, and especially the appellee, in the recovery of their debts.

Process to commence the suit was served upon all the defendants. The appellant appeared and filed a demurrer, plea and answer to -the bill. The other defendants made default. No depositions were taken on either side, and the cause, duly matured, was heard on the bill of the appellee, the demurrer, plea and answer of the appellant, replications and joinder, exhibits, and the decrees nisi at the' rul.es: 'and the court taking thi bill for confessed as to all of the defendants except the appellant, and holding that all of the lands in the bill mentioned were subject to the lien of the appellee’s judgment, ordered them to be sold, the lands unaliened to be first sold, and the other lands in the inver.se order of their alienation, and as to these last, the sale was suspended until the further order of the court. From this decree the appellant alone applied for and obtained an appeal. His counsel assigns as error in the decree, that the lands of the alienees are held liable and ordered to be sold. There are several answers to this assignment of error. In the first place, if there be error in decreeing these lands tobe sold, it is not to the prejudice of the appellant. The sale could injure the alienees only, and they are not here complaining. Moreover if they did complain it would be of no avail to them. The bill charges the conveyances to be fraudulent. The allegations are positive and explicit, and were in the court below treated as true on the bill taken for confessed as to them. They never appeared and made defense in that court, doubtless because they had no defense to make, and for the same reason they did not unite in the appeal. Tt is incredible that they should not have defended their title to lands alleged in the pleadings to be valuable, if such title had been valid as against the lien asserted by the ^complainant. If we may look to the appellant’s answer to the bill as a defense made for them, we see very readily why they did not answer in person.

The appellant’s deed of 6th February, 1873, to his son and to his. daughter and her husband, purports on its face to be for_ a nominal consideration only, and he admits that it is voluntary.

He denies that the deed of settlement to the separate use of his wife was cither voluntary or made with intent to defraud his creditors, and claims, in substance, that the consideration was the wife’s property, received by him from her father’s estate, to which she was equitably entitled, and which she agreed he should take and have as an equivalent for the settlement which was made. The bill charges that he received the wife's legacy ($1.880) from her father’s executor in 1 862, in Confederate money, and at the same time, and in like currency from the same executor, a legacy of $400 bequeathed directly to him, and that the aggregate of these sums ($2,280) makes the precise sum recited in the deed of settlement as “received by him in her right from the estate of her deceased father,” and these allegations are not denied in the answer. The deed of settlement bears date on the 24th day of February 1869, nearly seven years after the legacies were received. It is true the deed recites the agreement referred to and the receipt of the wife’s legacy thereunder, as the consideration for the settlement upon the wife, but the recitals, although evidence against the grantor, are not evidence against a creditor of the grantor. Where such recitals are relied on to affect a creditor not a party to the deed, there must be distinct proof of the previous agreement, and none was furnished in this case. William & Mary College v. Powell & others, 12 Gratt. 372. 384, 386.

The conveyance to Charles R. Hancock, the brother-in-law of the appellant, bears date, the day before the *date of the settlement on the appellant’s wife, and both deeds were admitted to record on the same-day. This conveyance purports to be in consideration of $1,800 in hand paid by the-grantee, and the appellant, in his answer, says, that the money was actually paid to-him “in the presence of witnesses.”

The bill which was filed in February, 1874, charges^ that the grantee has never taken possession of the land covered by this conveyance, and that the same has been used and enjoyed by the appellant in the same manner as before the said conveyance, and these allegations are not denied in the answer, nor were any of the witnesses, in whose presence the money is said to have been paid, examined, nor has the grantee ever asserted any claim to the land in this suit.

Looking to the whole record I am well satisfied that each of these conveyances, if not fraudulent in fact, is at least not upon consideration deemed valuable in law, and is therefore void as to the appellee’s judgment. The debt on which the judgment was based is evidenced by bond dated nearly seven years before the first of these conveyances was executed.

Another assignment of error is that the unaliened lands of the appellant were ordered to be sold when it was neither alleged nor proved that the complainant (the appellee) had exhausted his remedy at law to obtain satisfaction of his judgment out of the personal estate of the appellant.

Previous to the general revision of the laws in 1849, there were two legal remedies by which the judgment creditor was enabled to reach the lands of his debtor. One was through the execution of ca. sa. under which the debtor was taken and imprisoned, and might be discharged from imprisonment on surrendering his property, and the other was by elegit, whereby all the goods and chattels of the debtor (except his oxen and beasts of *the plow), and a moiety of all his lands and tenements whereof he was seized at the date of the judgment or at anv time afterwards, were drbvorrd to the creditor by reasonable price and extent, to have and to hold the e-oods and chattels as his own, and the moiety of the land as his_ freehold until thereof the judgment was satisfied.

The creditor having these legal remedies, equity had no jurisdiction to decree a sale of the lands to satisfy the judgment, unless it was made to appear that the remedy at law to enforce the judgment was inadequate. It was always regarded that the legal remedy by elegit was inadequate where it was shown that the^ rents and profits of the land would not satisfy the judgment within a reasonable time, and in such case a court of equity would take jurisdiction and decree a sale.

Such was the state of the law in 1849, when the ca. sa. was abolished, and to supply its place other existing remedies were enlarged and some new ones were provided. The liens of judgments and decrees for money, which theretofore had been mere incidents of the elegit and attached to a moiety only of the debtor’s land, were made express, direct, positive, absolute charges on all the real estate of the debtor, and the elegit was made to conform to the statutory lien. Borst v. Nalle & als., 28 Gratt. 423, 430. Code of 1873, ch. 182, §§ 6. 1.

The lien of -the fi. fa. was enlarged so as to extend to all the personal estate of or to which the judgment debtor is possessed or entitled, although not levied on or capable of being levied on under the law, as it then existed, and this additional lien was made continuous; that is, it was provided that it should “cease whenever the right of the judgment creditor to levy the fieri facias under which the lien arises, or to levy a new execution on his judgment, ceases or is suspended by a forthcoming bond being given and 'forfeited, or by -a supersedeas or other *legal process,” and means were provided for enforcing this lien. Code of 1873. ch. 184.

And it was at the same time enacted as fellows: “The lien of a judgment may always be enforced in a court of equity. If it appear to such court, that the rents and profits of the real estate subject to the lien will not satisfy the judgment in five years, the court may decree the said estate, or any ■part -thereof, to be sold, and the proceeds anplied to the discharge of the judgment.” Code of 1873, ch. 182, § 9.

Looking to the policy of the legislature at the revision, and to the broad and comprehensive language of the enactment, I do not doubt that a judgment creditor, if he so elect, may resort to a court of equity to enforce the lien of his judgment against the real estate of his debtor-, without first proceeding by execution at law to subject -the personal estate, or assigning any reason for not doing so. The remedy in equity against the real estate, (now the only remedy since the elegit was abolished, Acts 1871.-2, ch. 373, p. 469), is not dependent upon the inadequacy of the legal remedy to satisfy the judgment out of the personal estate, or the insufficiency of such estate for that purpose, but it may “always” be resorted to, whether there be or not'personal estate of the debtor sufficient to satisfy the judgment. The remedy is given in general terms, and if it had been intended to limit its application to cases in which there, was no' personal estate of the debtor, or where such estate was not sufficient to satisfy the judgment, it would doubtless have been so provided in express terms. See the case of the Commonwealth by, &c., v. Ford &. als., 29 Gratt. 683, in which it was held, that the right of the commonwealth to seize and sell under execution the real estate of defendants against whom she had judgments did not deprivé her 'of the right, if she elected to exercise it, to resort to a court *of equity to subject such real , estate to the lien of such judgments.

All the property, real'and personal, of the debtor, except what is exempt under the law, is liable for the payment of his debts. The personal property may ordinarily be reached under execution at law. while the real estate can be subjected by suit in equity only. If the creditor resort to the real estate first and the debtor has personal property which he prefers should be applied to the payment of the judgment, he certainly can make the. application himself more speedily and at less expense than an officer of the law can under an execution, and thus relieve his real estate to the extent of the value of the personal estate so applied. If he fail or refuse to make the application, it is his own fault. Creditors seldom, if ever, resort to equity to enforce their judgments against the lands of their debtors, unless arid until they are compelled to do so, because the proceeding is both dilatory arid expensive. When they do resort to it,- however, the rights of the debtor are protected in the most ample manner. His lands cannot be sold if the rents and profits thereof will satisfy the judgment in five years, and when sold, a day is usually given him for the payment, and the sale must be on a reasonable credit.

While the appellant assigns as error that the appellee does not allege in his bill that he has exhausted the appellant’s personal property by execution, he yet complains in his answer that he has been harrassed with executions sued out by the appellant since the commencement of this suit. However that may be. he does not claim that he has not received credit for anything realized on these executions, and he does not deny that the greater part of the judgment still remains unpaid. He avers in his answer that his property, real and personal, which remains unaliened and therefore confessedly liable for the appellee’s judgment, is “at least of the value of $5,000, and more *than three times the value of the balance of the said judgment;” “that individually he is singularly free from debt;” “that his individual debts do not amount to more than $300, all tpld,” and leaves us to infer that his debts as surety are not large, for the judgment of the appellee is the only debt he specifies as owing by him as surety. The presumption is. that the judgment of the appellee is the only judgment against him, as none other is mentioned in his answer and no judgment creditor has ever applied to become a party to this suit. If' his statements be true, he might and should have paid the appellee’s judgment long ago. He admits that it is owing, and that his property is bound by it, and claims that he owns property of value more than three times the balance due on the judgment. It would have been no less wise than just, I think, if he had paid the appellee’s judgment without this fruitless attempt to evade it.

Another assignment of error is that the appellant is surety on the debt upon which the appellee’s judgment was recovered, and that the deed 'of trust to Joseph M. Terry was given by the principal debtor, among other things, to indernriify the appellant as such surety, and that the court should have compelled the appellee to resort to this deed of trust in exoneration of the appellant before subjecting his property.

The alleged principal debtor is not a party to the suit, is bankrupt, and the appellee has no judgment against him. If the assumption ; of the appellant’s counsel that the appellant is surety were true, without conceding that the appellee in that case should be required to resort to this deed of trust, it is a sufficient answer to this assignment of error to say, that it does not appear by the record that the appellant is surety. The bill contains no such allegation or admission. It is averred in the appellant’s answer to be so, but the averment is affirmative matter, and is not proved. The deed of trust indemnifies *the appellant in general terms as surety upon any and all papers upon which the appellant is bound as such surety. But the debt on which the appellee’s judgment was recovered is not specified in the deed as one of the debts on which the appellant is surety, and if it were so specified and described the deed would be no evidence of the fact against the appellee, as he is not a party to the deed.

There was no necessity of making Joseph M. Terry a party to the suit. He is the trustee in the deed of trust referred to, but as we have seen the appellee was not bound to resort to that deed in this suit. The appellant avers in his plea that Joseph M. Terry is the joint owner with the appellee of the judg- , ment sought to be enforced. If the fact averred, taken as true, would be a sufficient reason for requiring him to be made a party, still there was no proof of such joint owner- , ship. After the suit was brought, and a short time before the decree appealed from was rendered, as appears from a deed in the record. Hockman and wife conveyed a portion of the land which had been conveyed to them by the appellant to one Lewis Huff, as trustee, to secure an alleged debt to W. IX E. Duvall, and it is assigned as error that Huff and Duvall were not made parties by amended bill. If these persons had any interest in the subject of the suit they acquired it pendente lite, and it was not necessary, therefore, that they should be brought before the court to enable it to disnose of the subject. At all events, if they claimed any such interest as made their presence as parties necessary, they might and should have brought the matter to the notice of the court by netition, and had their claims passed upon.

The last assignment of error to be noticed, is that the unaliened lands of the appellant were ordered to be sold without its being made to appear that the rents and *profits thereof would not satisfy the apoellee’s iudgment in five years.

The bill contains no allegation as to the rents and profits, and the answer of the apnellant is silent on the subject. There is no oroof; no enquiry was asked or ordered. The fact of the insufficiency of the rents and profits to satisfy the iudgment within the prescribed period should be made to appear before any sale is made, and if the appellant desires it, he may have an enquirv to determine that fact. But this is no cause for reversing the decree. The decree being interlocutory may be amended in that respect, and as amended affirmed. Ewart v. Saunders, 25 Gratt. 203;, Horton & others v. Bond, 28 Gratt. 815.

I am of opinion, on the whole case, there is no error in the decree complained of for which it should be reversed, but that the decree should be amended as above indicated, and as amended be affirmed.

The other judges concurred in the opinion, of BURKS. J.

Decree amended and affirmed.  