
    *Hale v. Horne & als.
    June Term, 1871,
    Wytheville.
    1. Deed of Trust — Equity of Redemption — Subject to Lien of Judgments. — The equity of redemption in land conveyed in trust to secure debts, is subject to the lien of judgments subsequently obtained, in the order of their priority in date.
    2. Same — Sale of Land Subject to — Case at Bar. — M conveys land in trust to pay specified debts, and after-wards sells and conveys it to G. G has good title to the land, subj ect to the trust; and when the trust is discharged, he is by operation of the statute (Code, ch. 135, § 31, p. 612) entitled to hold the land, at law and in equity, though the trustee has not conveyed it to him.
    3. Same — Judgments—Sale of Land Subject to — Case at Bar —M conveys land to H, in trust, to secure certain debts. After the deed is recorded, C and D recover judgments against M: and then M and H, and the principal creditor'in the trust deed, unite to sell and convey the land to G; and G pays one half cash, and gives his notes in one and two years for the balance of the purchase money: all of them having notice of the judgments. H proceeds at once to pay off the debts secured by the deed, and pays the whole balance of the purchase money to M, before the notes of the purchaser are due. Held:
    1. Same — Same—Same—Same.—The payment by H to M was in his own wrong, and C and D are entitled to have their judgments satisfied out of the purchase money due from G.
    2. Same — Same—Same—Same.—C and D havingfiled their bill to have their judgments satisfied out of the land, to. which the vendors and purchaser o are parties, G may enjoin the collection of the money from him by H, and pay it into court.
    3. Appellate Proceedings — Defect of Parties. — The judgments of D being in his name, for the benefit of J, he sues in his own name, without making J a party; but there is no objection to this in the Circuit court, and the decree is in favor of D. This is not error; but for conformity it may be amended by the appellate court and affirmed.
    4. Chancery Practice — Bill to Set Aside a Deed — Fraud.
    —Though the bill seeks to set aside the deed for fraud, yet, as *it makes a case entitling C and D to be paid out of the purchase money of the land, and asks for general relief, though the fraud is not proved, they may have the purchase money applied to the payment of their judgments.
    On the 8th day of February Í858, Wm. M. Mitchell executed a deed, by which he conveyed to Eli C. Hale a tract of land in the county of Grayson and all his personal property, to secure to Martin Hale and others, certain debts mentioned in the deed ; and it was provided that Mitchell should remain in possession of the property until the 1st of the next October; and then if the debts were not paid, Hale, the trustee, might, at the request of any of the creditors secured by the deed, sell the land and personal property at public auction on the premises for cash, after advertising the sale for thirty days, and out of the proceeds of sale, pay the debts in the order prescribed in the deed ; and if there was not enough to pay all, certain debts mentioned were to be paid pro rata. This deed was admitted to record on the day of its date, in the clerk’s office of the County court of Grayson.
    At the February term of the County court of Grayson, which commenced a few days after this deed was admitted to record, James W. Clark recovered a judgment against Mitchell for $120 principal, beside interest and costs, subject to a credit of $50. Dicken-son and Nuckols, for the benefit of John D. McCamant, recovered four judgments against Mitchell, two of them each for $250, one for $600 and one for $75.88, of principal, besides interest and costs. At the April term of the Circuit court, Wm. R. Horne recovered two judgments against Mitchell, each for $120 of principal, with interests and costs ; and at the May term of the County court, Dickerson recovered another judgment against him for $80. On all these judgments executions of fi. fa. were' issued, which were returned, no effects except such as were included in a deed of trust. *On the 11th of October 1858, Mitchell, with the concurrence of the trustee, Eli C. Hale, and of Martin Hale, who was the principal creditor secured by the deed, made a contract with Dee Nuckols and A. F. Gregory, to sell to them the land embraced in the deed, for the sum of six thousand dollars. And Mitchell and the two Hales executed a bond to Nuckols and Gregory in the penalty of twelve thousand dollars,with condition which recited that Mitchell and the Hales had sold to them the land, and that if Mitchell and the Hales made to them a good and sufficient deed, with general warranty to the said land, on or before the 1st of October 1859, then the obligation to be void.
    On .the same day Eli C. Hale and Martin Hale entered into another bond to Nuckols and Gregory, in the penalty of six thousand dollars, which recites the purchase of the land at $6,000; and whereas there are judgment liens on said land in favor of John Dickenson and others, and whereas Martin and Eli C. Hale required the said Nuckols and Gregory to pay over to Eli C. Hale, as trustee in Mitchell’s deed, the purchase money for the land, if the sai<3 Martin and Eli C. Hale shall pay off and satisfy the said judgments, so as to discharge the liens thereof upon the land, then the obligation to be void.
    On the same day Eli C. Hale gave to Nuck-ols and Gregory a receipt by which he acknowledged the receipt from them of the sutp of $6,000 for the land ; and also for the sum of $175, paid by them for Mitchell’s interest in about acres of land in the county of Gray-son, called the mill lot. It does not appear certainly that this interest was embraced in the deed of trust. Though this receipt speaks as if the whole purchase money had been paid, in fact only $3,000 was then paid, and Nuckols and Gregory executed their notes to Hale, each for $1,500, one payable in twelve, and the other in twenty-four months.
    *'In November 1858, Eli C. Hale having advertised the land and personal property for sale under the deed of trust, set it up at auction, to be sold for cash, when Martin Hale became the purchaser of the land at the price of $5,800. The Hales say that they were advised by counsel that this was the only way in which they could make a good title to Nuckols and Gregory, and the purpose was that Martin Hale should purchase it unless it went above $6,000. Accordingly, on the 16th of August 1859, Mitchell and his wife, and Eli C. and Martin Hale conveyed the land with general warranty to Nuckols and Gregory. And the same day the bond to indemnify them against iucumbrances was delivered up to Martin Hale, who tore off the names of the obligors.
    Eli C. Hale proceeded to pay off the creditors secured by the deed of trust, and ascertaining, according to his statement, that after satisfying the trust there remained a balance of the trust fund amounting to $1,297.07 ; he on the 27th of January 1859, paid over this sum to Mitchell.
    In February 1859, William R. Horne, John Dickenson, Creed Nuckols and James W. Clark instituted a suit in equity in the Circuit court of Grayson county, which was after-wards transferred to the Circuit court of Wythe, against Eli C. Hale, Martin Hale, Wm. M. Mitchell, Eee Nuckols and A. E. Gregory. In their bill they set out the judgments recovered by Horne and by Dickenson and Nuckols for McCamant, and the judgment recovered by Clark against Mitchell, and also the deeds of Mitchell to EH C. Hále, and of Mitchell and the Hales to Nuckols and Gregory, and the bonds of the Hales to Nuckols and Gregory.
    They charge that the deed was fraudulent, intended to hinder and delay them and other creditors of Mitchell in the collection of their debts. They charge that a portion of the debts secured by the deed were either without any consideration, or were created for the fraudulent purposes of the deed, at *or about the time of its execution ; that Mitchell was allowed to retain possession of the' property, and made way with much of it, and pocketed the proceeds ; that the Hales promised to pay the debts of Horne, Clarke and Dickenson ; that by these promises and assurances the plaintiffs were prevented from taking steps to enforce their judgments. That Eli C. Hale had returned to the clerk’s office a list of the sales, and that list is $375 less than the actual sales : that throughout every transaction Mitchell and his brothers-in-law, Eli C. and Martin Hale, have acted in concert, and with a mutual understanding of each other’s intentions ; and the purpose and effect of the deed has been to squander an estate valued at seven or eight thousand dollars ; and they make no pretension to the payment of more than $4,000 of Mitchell’s debts. That Eli C. Hale has recently paid to Mitchell about $1,000 out of the proceeds of the sale of the trust property ; and that this was done with a full knowledge of the plaintiff’s judgment liens and in the face of his promises. They call upon the defendants to answer fully all the charges in the bill, and that Martin Hale be required to state particularly what was the consideration for the debt of $1,517.54, secured by the deed to him, and how that was created. And they pray that the court may set aside the deed of trust, and direct a resale of the property for the satisfaction of the plaintiff’s debts ; that if deemed necessary the court will direct an account to be taken to ascertain what disposition has been made of the trust fund, and for what amount the trustee has rendered himself liable ; and for general relief.
    Eli C. Hale answered the bill. He denies the fraud imputed to him. He says it is true Mitchell is the brother-in-law of himself and Martin Hale, and that they had a strong desire to sustain him in his difficulties. He denies that the deed of Mitchell was intended to hinder, delay or, defraud the plaintiffs or any other creditors *of Mitchell; but that on the contrary, it was intended to secure honest debts, and all the debts therein specified were honestly due from Mitchell. He denies he ever made the promise charged in the bill. They approved Mitchell’s sale of the land, because they thought it a good bargain; and more than it would have brought if sold under the deed. The charges of fraud in the sale of the trust property are false and groundless, as are also the respondent’s complicity in Mitchell’s supposed waste and misapplication of the trust property. He says it is true the land was set up at public auction and was cried off to Martin Hale; but this was done under the advice of counsel, that this was necessary to give validity to the sale made by Mitchell. He denies that he had any notice that any execution in favor of the plaintiffs or either of them was in force against Mitchell at the time of the sale, and therefore protests against his liability to satisfy their claims. He insists the funds in his hands after paying the trust debts was a personal fund belonging to Mitchell, upon which judgments were no liens; and says that this fund being the property of Mitchell, and no steps having been taken to subject it in respondent’s hands, he paid it over to Mitchell.
    Martin Hale also answered. He refers to the answer of Eli C. Hale, and adopts it in so far as its statements and denials are applicable, and he especially denies all fraud and intention to hinder, delay and defraud the complainants or any other creditors of Mitchell. He says, that while it is not in his power to state with absolute precision, every item of claim comprising the debt of $1,517.54, due from Mitchell, and secured by the deed of trust, yet every dollar of that amount was justly due him for full and fair consideration, and he will try to mention the principal matters, to wit: a cow, three wagon-loads of corn, a quantity of oats, a debt of upwards of $150 due respondent’s mother from Mitchell, *and paid at his request by respondent ; a sum of about $275 loaned by respondent to Mitchell, and debts paid to several persons by respondent for Mitchell at his request. That part of the money, as much as $300 at one time and nearly as much at another time, was loaned to Mitchell to pay purchase money of the land mentioned in the deed of trust. That Mitchell had never paid him anything' on account of these advancements or loans, and that they were all counted up and included in the bond when the deed was given; and he avers that there never was a debt more justly due to any man than was every dime of that debt due to him from Mitchell. He denies that he promised Horne to pay his debt, but on the contrary, told him that he did not think the property would bring enough to pa3’- his debt.
    In September 1860, the commissioner who had been directed to take an account of the trust fund made a report which, stating the price of the land at $5,800 and the personal property, at $256.65, making $6,056.65, showed that the trustee had paid out the whole amount; the last item being $1,297.07 paid to Mitchell on the 27th of January 1859. The commissioner further reported, that Mitchell had sold certain articles embraced in the deed, amounting to $236.25, and that the trustee had applied $151.11 to satisfy, as was stated, certain executions in the hands of a constable when the deed was made; though the commissioner did not see the executions. The whole amount of the trust fund thus omitted, including $200 on the price of the land, the commissioner stated at $577.36.
    In April 1860, whilst this cause was pending, A. F. Gregory filed his bill in the Circuit court of Grayson, which was afterwards transferred to the Circuit court of Wythe, in which he referred to the papers and proceedings in the case of Home & ais. v. Hale & others, and stated that he had purchased the interest of Tee Nuckols in the land sold to them by *Mitchell and the Hales. That Eli C. Hale had brought a suit on the last bond given for the purchase money; that Dickenson and the other plaintiffs had given him notice not to pay the money to Hale. He made Hale and the plaintiffs in the first suit defendants, and asking that Hale might be enjoined from proceeding to enforce his judgment, and that he, Gregory, might be permitted to pay the money into court. The injunction was granted; and upon the same day, Gregory was directed to pajT the amount due upon the judgment to Eli C. Hale, as receiver of the court. This was done, and the amount received by Hale was $1,557.22.
    Hale answered the bill of Gregory, insisting that the only valid sale of the land was that made at public auction to Martin Hale. That he had fully settled up that trust. That the plaintiff in the first suit had no lien on the land of Gregory, and the money due from Gregory was Hale’s own money, upon which the creditors of Mitchell had no claim.
    The two causes came on to be heard together, on the 8th day of October 1869, when the court made a decree fixing the amount of the plaintiffs respective judgments, and settling the order of priority among the plaintiffs according to the date of their judgments; and that Eli C. Hale, out of the fund in his hands as receiver of the court,should pay to the plaintiffs in the order stated in the decree the said sum of $1,557.22, with legal interest thereon from the 28th day of June 1860 till paid, or so much thereof as may be necessary to satisfy their judgments, with interest and costs as aforesaid, in the order in which they were recovered and mentioned in the decree, within one hundred and twenty days from that day. And if the money was not paid in that time, the plaintiffs were authorized to sue out executions upon the decree. And should the executions prove unavailing, liberty was reserved to them to apply to the court for further proceedings to enforce this decree against said *Hale and his surety in the receiver’s bond. And it was further decreed that the sale of land by Mitchell to Nuckols!and Gregory be confirmed ; and that Hale be perpetually enjoined from all further proceedings on the judgment recovered by him against Nuckols and Gregory, and that the same is declared to be paid and satisfied. Costs were given to the plaintiffs in the first suit, but none was given in the second. From this decree Eli C. Hale obtained an appeal to this court.
    Richardson and Jno. A. Campbell, for the appellant.
    Gilmore, for the appellee.
    
      
      See Coutts v. Walker, 2 Leigh 268.
    
   ANDERSON, J.,

delivered the opinion of the court.

The appellees are judgment creditors of Wm. M. Mitchell. Before they obtained their judgments, the debtor conveyed his land and other property to the appellant, in trust to secure other creditors. Before a sale made under the deed of trust, the grantor, with the assent and co-operation of the trustee, and the principal creditor secured by the deed of trust, sold the lands to Eee Nuckols and A. F. Gregory for $6,000, payable one half in cash, and the residue in two equal payments, in one and two years. On the 16th of August 1859, William M. Mitchell and wife, and Eli C. Hale and Martin Hale, executed a deed conveying said lands, with general warranty, to the said Andrew F. Gregory and Eee Nuckols. On the 27th of January 1859, Eli C. Hale, having paid off all the debts secured by the deed of trust, paid over, as he claims, the surplus to Wm. M. Mitchell. In February 1859, Wm. R. Horne, John Dickenson, James W. Clark, and Dickenson and Nuckols, judgment creditors of said Wm. M. Mitchell, and appellees here, filed their bill in this suit against Eli C. Hale, (the appellant), Martin Hale, William M. Mitchell, A. F. Gregory and Eee Nuckols, to set aside the deed of trust as fraudulent in its inception and administration, and to subject the said *lands of Wm. M. Mitchell to the satisfaction of their judgments, and for general relief.

In the progress of this suit A. F. Gregory filed his bill against his co-defendants and the plaintiffs, alleging that he had bought out the interest of his joint purchaser, Eee Nuckols, in the said lands, and had taken upon himself the payment of their joint bonds for the deferred payments of the purchase money; that they have been sued upon one of those bonds, which showed upon its face that it was given for the lands they bought of Mitchell; that a judgment would be rendered against them at the then present term of the court; that he had been notified by some of the judgment creditors, that they claimed a lien upon the said lands to satisfy their judgments, and forbidding him to pay to Mitchell or Hale the balance of the purchase money due from him; and that this suit was instituted for the purpose of subjecting his said lands to satisfy the said judgments, which he prays may be made a part of his bill, and that he be permitted to pay the money into court, to be applied as the court may determine was right and proper; and that Eli C. Hale be perpetually injoined from proceeding to execute the said judgment. The injunction was granted, and the money ordered to be paid into the hands of Eli C. Hale, who was appointed the receiver of the court, upon his giving bond and security according to law. He gave the bond, and the money was paid to him, and is now in the custody of the court.

What interest had William M. Mitchell in the lands after he gave a deed of trust? Whatever interest he had was liable for his other debts. The whole of a man’s property is liable for his debts. A mortgage is regarded in equity as a mere security for the debt, and only a chattel interest. And until a decree of foreclosure, the mortgagor continues the real owner of the fee; and may lease, sell, and in every respect, deal with the mortgaged premises as owner. The equity of redemption *is descendible by inheritance, devisable bjr will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law. 4 Kent Com. 157, 159, 160; Hutchins v. King, 1 Wall. U. S. R. 53. It was entirely competent, therefore, for Mitchell, after the conveyance of his land in trust for the payment of debts, to make an absolute conveyance of them to Nuckols and Gregory. And his deed was good to pass title to them, subject, however, to the in-cumbrance of the deed of trust. And after the payment of the whole of the debts secured by the deed of trust, the grantor and his vendees, by operation of the statute, are entitled to hold the land, at law or in equity, notwithstanding a conveyance has not been made by the trustee. Code, chapter 135, sec. 21, p. 612. But the purchase of these vendees is subject, not only to the incumbrance of the deed of trust, but also to the lien of the judgment creditors, of which they had notice when they purchased. The judgments being subsequent to the date of the deed of trust, they would be postponed until the deed of trust was satisfied. Their lien attached only to such interest as the grantor, their debtor, retained in the lands, after executing the deed of trust; that is to his equity of redemption. ‘It is a settled rule,” saj-s J. Green, in Haleys v. Williams, 1 Eeigh, p. 140, “in respect to the satisfaction of judgments, and other liens upon an equitable fund, that all are to be paid according to their priority in point of time; “qui prior est in tempore, potior est in jure. ’ ’ In that case the fund was equitable so far as the judgment creditors were concerned; the legal title being in trustees, for the security of other creditors, who had thereby a priority over the judgment creditors : which is precisely this case.

In Michaux’s Adm’r v. Brown, 10 Gratt. 612, 619, J. Allen says: “Although this equity of redemption could not be taken in execution at law, it was upon the general principle of a court of equity, bound in equity, as it *would have been bound at law if it had been a legal estate. And in equity the judgment is a lien upon the whole of the debtor’s equitable estate.

It is perfectly clear, that whatever interest Wm. M. Mitchell had in these lands, after he had conveyed them in trust, was subject to the lien of his subsequent judgment creditors; and that his vendors, who purchased with notice of those judgments, purchased subject to the judgment liens, and that whatever portion of the purchase money remained, after satisfying the in-cumbrance of the deed of trust, was liable to satisfy the judgments; and the land in the hands of the vendees, is bound for the payment thereof to the judgment creditor. Hence, it follows, that their bond for the purchase money, in the hands of Mitchell, or of the trustee, remaining after the trust creditors were satisfied out of the trust fund, was liable to the judgments; and no one could release the vendees, or the land they had purchased, from the judgment lien, except the judgment creditors themselves. This fund is now in the custody of the court, being claimed on the one hand by Eli C. Hale, who held the bond of the purchaser, and on the other hand, by the judgment creditors. The Circuit court held, that the judgment creditors were entitled to it; and decreed that it should be applied in satisfaction of their judgments, according to their priority. The judgment creditors not having released their lien, upon what ground can this fund be claimed for Eli C. Hale? It is contended, by his counsel, with great earnestness and ability, that his duty as trustee only required him to pay the debts secured by the deed of trust; that he was not required to take notice of any outside claims; but by the express and imperative terms of the statute, Code, ch. 117, sec. 6, p. 563, after paying the debts secured by the deed of trust, he was required to pay the surplus to the grantor. I cannot agree with counsel in this construction of the statute. I cannot *think that it was the intention of the legislature to require or even to authorize the trustee to pay the surplus fund into the hands of an insolvent grantor, when other creditors, outside of the deed of trust, were entitled to it, as against the grantor or his assignees ; of which the trustee had notice. This provision of the statute imposed no new obligation or duty upon the trustee, and conferred no new or cumulative right upon the grantor. Previous to the statute, and independent of it, I apprehend, after the payment of the whole sum, or the accomplishment of the whole purpose, for which the deed of trust was given, it was the duty of the trustee to pay over to the grantor any surplus which remained in his hands, even when there was no express provision in the deed requiring it, and it was a right which the grantor could demand and enforce in a court of equity. But if it was known to the court in such proceeding,- that there were judgment creditors who had a lien upon the fund, it would not compel the payment to the grantor, but would inhibit the trustee from making payment to him. I do not think it was the design of the legislature to make any change in the rights and obligations of the grantor and trustee; but as they stood before the statute, they remain. The terms of the statute are, shall pay to the grantor or his ‘ ‘assigns. ’ ’ There might be a party claiming the fund, under an assignment from the grantor, and adversely to him, of which the trustee had notice. Will it be contended that the trustee would be justified in ignoring the as-signee, and paying the fund over to the grantor? Does the assignee occupy any higher ground than the judgment creditor, who is invested with the right to it by operation of law? Besides, it does not seem to have been designed by the legislature, that all deeds of trust should conform to these provisions of this statute, or derive their efficac3r from them. The contrary intention plainly appears from the eighth section, which provides, “that any deed, or part of a deed, which shall *fail to take effect, by virtue of this chapter, shall nevertheless be as valid and- effectual, and shall bind the parties thereto, so far as the rules of law and equity will permit, as if this chapter had not'been enacted. ’’ The fifth section merely gives a formula for a deed of trust to convey the property to the grantor, in trust for the security of debts or the indemnity of sureties: and there it stops. It seems not to contemplate directions in the deed to the trustee for the execution of the trust. The sixth section provides for that, and prescribes a general rule for the direction of the trustee in the execution of such deeds of trust. But where the deed provides how the trust shall be executed by the trustee, as deeds of trust universally; did before these sections were enacted, and as was done in this case, such deed derives no efficacy from those sections of the statute, which have no application to it; and the trustee, in the execution of the trust, must be governed by the instructions contained in the deed, and by the rules of law and equity which are applicable. And although the deed in this case provides how the trustee shall apply the fund, it contains no provision directing him to pay the surplus to the grantor, so that if there should be a surplus, he must dispose of it according to the rules of law and equity.

But, if the trustee paid over the surplus, of the purchase money to the grantor, how. is it that he is now claiming it himself? The truth is, at the time of his alleged settlement of his administration of the trust fund, the deferred payments of the purchase money were not due; and the trustee, to accomplish his ends, whether rightful or wrongful, seems to have deemed it necessary to resort to indirection. . The principal actors on the arena were .himself, his brother Martin, who appears as the principal creditor secured by the dged, and Wm. M. Mitchell, his brother-in-law, the failing debtor. The execution of the deed may have' been all fair. But it is a little remarkable, that the debt claimed by Martin *Hale had grown from between five and six hundred dollars, from the time he informed a witness, Robert Vaughn, that Mitchell was owing him that amount, to $2,158.37, át the time of payment by the trustee. And it is also remarkable, that in so short a time from the date of that conversation, until the execution of the deed of trust, the period in which the most of this account accrued, he was unable in his answer to give the items of his account. There is another fact to which I must avert in this connection. It is that the trustee, as appears from the commissioner’s report, on the day of sale sold a part of the trust property, to satisfy, as he alleged, executions in the hands of R. Vaughn, a constable, to the payment of which he applied $151.11 of the trust fund, of which no entry is made in his account as trustee. The commissioner states that he had not seen the executions, and could not say whether they were valid. The witness, Robert Vaughn, to whom I have already referred, is of the same name, and I take him to be the same person. He says in his deposition, that he had claims against Wm. M. Mitchell, to the amount of $150 (very nearly the amount which Eli C. Hale paid him out of the trust fund), and that he was informed, that provision had been made for it in the deed of trust, by adding it to Martin Hale’s debt, who was to pay him. That some time afterwards, he saw Martin Hale and named the case to him; and Martin Hale said yes, that was the case, but Wm. M. Mitchell had teased him out of the monejT. How is this ! Martin Halé incorporates the debt due from Mitchell to Vaughn with his debt, and assumes to pay Vaughn. And the whole is secured to him by the deed of trust, and is paid to him out of the trust fund; and instead of paying Vaughn according to his own account, he pays it to Mitchell; and Vaughn’s debt, which Hale was bound to have paid out of his own pocket, is paid out of the trust fund. Was this dealing fairly towards the judgment ^creditors? If the facts be so, it was a palpable fraud upon them, and throws discredit, upon the bona fides, of the whole transaction. But the sale to Nuckols and Gregory was not made in the way, and upon the terms, prescribed by the -deed of trust; which required the sale to be made on the premises, to the highest bidder, for ready money, after advertising the sale for at least thirtj’' days, &c. It was made privately, for half cash, and the residue in equal payments of one and two years. This does not invalidate the sale, it being made by the grantor, with the consent and active co-operation of the trustee and the principal trust creditor, and the acquiescence of the others, and was a good sale; and there is nothing in the record to show that it was not fair and bona fide. But the trustee deems it necessary to resort to indirection, in order to give validity to that which was valid. He goes through the form of offering for sale to the highest bidder, at public auction, the same land, which he had previously united with Mitchell and his brother in selling to Nuckols and Gregory, and for the title to which, they had bound themselves in a penalty of $12,000; and had the same cried out to his brother at the price of $5,800. In this, nothing wrong was intended; but it was only an ostensible sale, and made, as admitted by Eli C. Hale in his answer, and proved by the evidence in the cause, only because it was thought to be necessary, to comply with the form of the deed of trust to give validity to the real sale, which had been made to Bee Nuckols and A. E. Gregory.

It seems that the real purchasers had made the hand payment to the trustee, in paper and money, and had given their two joint bonds to Eli C. Hale for $1,500 each, payable in one and two years, for the residue of the purchase money; and that Eli C. Hale, thereupon, satisfied the trust debts, and paid over to the grantor, what he claims to have been the surplus, and retained the vendees’ bonds for the residue of the purchase money, *as due to him individually, in consideration of the advances which he had made. And he contends, that inasmuch as the statute imperatively required him to pay over the surplus to the grantor, and he had advanced the money out of his own pocket, he is entitled to the bonds of the vendees for the residue of the purchase money.

We have seen that such a pretension as to the effect of the statute is untenable. But upon no construction did the statute require him to advance his own fundís in order to pay the surplus to the grantor. It could be construed by no one, to require him to do .more than to pay over the surplus of the trust fund, to wit, the bonds of the vendees, for the deferred instalment of purchase money. It was not incompatible with the sincerest desire to obey the law, and to discharge his trust, that he should have kept his own money, and turned over to the grantor the bonds of the vendees. By advancing his own money, as he asserts he did, to pay over the surplus to the grantor, and taking the vendees’ bonds to himself, he exposed himself to the imputation, though ' it might be unjust, of seeking to hinder and defeat the judgment creditors in the enforcement of their liens. But there are other circumstances which cannot be overlooked. He gave a receipt to Eee Nuckols and A. E. Gregory for $6,000 in full of the purchase money for the tract of land on which William Mitchell then resided ; and to A. E. Gregory for $175 in full of the purchase money of Wm. Mitchell’s interest, in what was called the mill tract; thus to appearance discharging the liens. And instead of paying off the judgment creditors, and discharging the liens, as far as the trust fund would enable him to do, and as he had by his solemn obligation bound himself to Nuckols and Gregory, in the penalty of $6,000, to do, he procures the surrender of that obligation by A. E. Gregory to Martin Hale, upon a pretext which must be characterized as flimsy, and the *names of the obligors were torn off in his presence by Martin Hale. Thus by his contrivance the land was, in appearance, discharged of its liability to the judgment creditors by the evidence which he furnished the vendees of their payment in full of the purchase money, and the destruction of the irrefragable evidence of his and the vendees’ knowledge of the judgment liens, and of his obligation to discharge them. He may have then felt himself safe in paying over the surplus to an insolvent grantor, and in advancing the money for the purpose before the purchase money was due. But can such a contrivance, if so designed, deprive the judgment creditors of their right to satisfaction out of the purchase money which remained after the deed of trust was satisfied? I think not.

But it is contended that the decree is for too much; that the surplus, after paying the trust debts, was only $1,297.07. This sum is much less than it should be.

The judge then proceeded to examine the evidence, and made a statement of the proceeds of the property and the debts properly paid by the trustee, showing a larger amount which should have been in the hands of the trustee than was decreed against him. He then proceeded:

The next objection made to the decree, which I shall notice, is, that it is not consistent with the case made by the bill, and the relief asked. The bill sets out the plaintiffs’ judgments, which were liens upon Mitchell’s land, subject to the incum-brance of the deed of trust, and charges that the deed of trust was fraudulent, and made to hinder, delay and defraud the plaintiffs in obtaining satisfaction of their several judgments; and that frauds were practiced to their prejudice in its administration ; and they ask that it may be set aside, and that the land may be resold for the payment of their judgments, and for other and further relief, as the nature of their case requires, &c. The Circuit court being of opinion that the allegation of fraud was not proved, and that the sale ought not to be *set aside, but that the plaintiffs had liens upon the land, subject to the trust debts, and that the surplus of the trust fund, after paying the trust debts, was the purchase money due from Nuckols and Gregory, which had been paid into court, pursuant to the prayer of the bill filed by A. 3?. Gregory in connection with this cause, and which was amalgamated with it; and that said fund was liable to the plaintiffs’ judgments; perpetually injoined Eli C. Hale from proceeding to execute his judgment against said Nuckols and Gregory; and decreed that the said sum be paid in satisfaction of plaintiffs’ judgments, according to their priority. I am of opinion that there is no error in the decree on that ground, and that the said objection must be overruled.

The only other objection, which I deem it necessary to notice, is the want of proper parties; because John D. McCamant, for whose benefit the judgments in favor of Dickenson and Nuckols were recovered at law, is not made a party. The said judgments are set out in the bill as having been recovered at law, for the benefit of said McCamant. Dickenson and Nuckols, who were the parties plaintiffs in the court of law, which rendered the judgments in their favor, are parties plaintiffs in this proceeding, to obtain satisfaction of those judgments; and we are of opinion, that as' it does not appear from the record, that their right to recover is controverted by the said McCamant, it does not appear that he was a necessary party to this suit. If it was a matter which concerned the appellant, that he should be a party to this proceeding, he ought to have raised the question by plea in the court below. Prima facie, in a suit in equity by a judgment creditor to reach the property of his debtor, and subject it to the satisfaction of his judgment, it is competent for the court to decree in favor of the plaintiff in whose behalf the judgment was rendered; and payment by the debtor to him, in satisfaction of the decree, would be as effectually a discharge of the debt, and an *acquittance to the debtor, as the payment of the judgment would have been; and it is not necessary, that the person for whose benefit the suit at law was brought, and the judgment' was rendered, should be a party in the suit in equity, he not having been a party in the suit at law, unless it should appear that he controverted the plaintiffs’ right of recovery; and that could only be made to appear by plea. But, for conformity, the decree may be amended so as to make the payment to these plaintiffs, for the benefit of John D. McCamant, in accordance with the judgment. Upon the whole, I am of opinion, that there is no error in th'e decree, to the prejudice of the appellant, and that it should be affirmed.

Decree affirmed.  