
    *Devries & Co. v. Johnston & Wolfe & al.
    September Term, 1876,
    Staunton.
    1. Suits in Equity — Attachments—Court of Appeals— Jurisdictional Amount. — Three suits in equity are brought by the same plaintiffs against the same defendants to enforce payment of debts by attachment and sale of the same land. By order of the court these suits are directed to be consolidated and heard together, and then plaintiffs file an amended bill bringing in a third party. There being a decree dismissing the attachments, the plaintiffs may appeal to the court of appeals, though neither of the debts amount to $500, the sum of all of them being more than that amount.
    2. Same — Same—Debts Not Due.' — Qutere. If a cred-i tor, whose debt is not yet due, may bring a suit in equity to attach the property of his absent debtor, or to set aside a deed as fraudulent.
    This was a contest between the creditors of Johnston & Wolfe, of Baltimore. Dev-ries & Co. filed three bills against Johnston & Wolfe, which are set out in the opinion of Judge Anderson. Francis White filed six bills against the same parties to attach the same tract of land. These suits were commenced on the 13th of May 1872, and were to recover debts then due.
    In September 1872, Francis White filed his petition in the case of Devries & Co., in which he stated the institution of his suits and the amounts involved in each. He says that when Devries & Co. instituted their respective suits, and issued their attachments, the debts sued for by them were not due; and he charges that the said attachments sued out by Devries & Co. are null and void; and he prays that they may be quashed, and that the land may be sold, and the petitioners debts satisfied out of the proceeds of sale.
    *Tn November 1872, the case came on upon the petition of Francis White, and the court being of opinion that the attachments sued out by Devries & Co. were improperly sued out, it was ordered that they be abated. And thereupon Devries & Co. applied to a judge of this court for an appeal; which was allowed.
    Dandridge and Pendleton, for the appellants.
    Barton & Boyd, for the appellees.
    
      
       Suits in Equity — Consolidation of Suits. — The principal case is cited on this subject in Patterson v. Eakin, 87 Va. 54, 12 S. E. Rep. 144. See also, Barton’s Ch. Pr. (2d Ed.) 861.
      Jurisdictional Amount for Court of Appeals. — See W. & S. R. R. Co. v. Colfelt, 27 Gratt. 777, and note.
      
    
    
      
      Attachments in Equity — Debts Not Due. — On the subject of attachments in equity for debts not yet due, see Va. Code, § 2964; Batchelder v. White, 80 Va. 103; Barton’s Ch. Pr. (2d Ed.) 612.
      BILLS QUIA TiriET.
      Definition. — A bill quia timet, as the term implies, is a remedy for anticipatory mischief, in the form of a bill in equity, filed by a person fearing some future injury to his rights in property, real or personal, from the negligence, fault, or fraud of another. Enc. Pl. & Pr. 599; Stephenson v. Taverners, 9 Gratt. 398.
      When Resorted to. — In Randolph v. Kinney, 3 Rand. 397, the court said; “ ‘when a person is apprehensive of being subjected to a future inconvenience, probable, or even possible, to happen, or be occasioned by the neglect, inadvertence or culpability of another, or where any property is bequeathed to one after the death of another, and which the former is desirous of having secured safely for his use;’ or where a surety is fearful of injury, from the neglect of his principal to pay the debt; in all these cases, and others of this hind, the bill quia timet may be resorted to.”
      Necessary Allegations. — In the case of Lane v. Eggleston, 2 Patt. & H. 231, it was held that a bill quia timet must allege that the complainant may be subjected to loss by the negligence, inadvertence or culpability of tb'e defendant. See also, Randolph v. Kinney, 3 Rand. 394; Randolph v. Randolph, 2 Leigh 544.
      A bill in the nature of quia timet must show grounds for sustaining it. Fowler v. Saunders, 4 Call 361.
      Sureties. — In Croughton v. Duval, 3 Call 69, where the obligee in a bond refused to sue, upon the request of the surety of the obligor, it was held that such surety might bring a bill quia timet to compel the principal to pay and the creditor to receive the money. This case also decided that the statutory provision, allowing a surety on a bond to compel the creditor, in a court of law, to institute suit against the principal, did not take away any remedy which the surety was entitled to before. For re-enactment of the statute, see Va. Code, §§ 2890, 2891. As sustaining the above proposition, see Norris v. Crummey, 2 Rand. 338.
      A surety, whose principal is dead, may file a bill quia timet against the creditor and the executor of the debtor, to compel the latter to pay the debt so as to exonerate the surety from responsibility. Stephenson v. Taverners, 9 Gratt. 398.
      Endorsers. — In Call v. Scott, 4 Call 402, the drawer of a bill of exchange gave a mortgage to indemnify an endorser against future liability, and the endorser was allowed to bring a bill quia timet against the representatives of the drawer to foreclose the mortgage, and pay the holder of the bill of exchange.
      Remaindermen. — “Though it is a matter of course for one in remainder of chattels, to file a bill for an account, and an inventory of the property, that it may be certainly known; yet the court will not rule the tenant for life to give security, unless there appears to be some danger of wasting or putting the property out of the way.” Per Curiam, In Mortimer v. Moffatt, 4 H. & M. 504. The power of a court of equity to require such security from a tenant for life, is to be exercised, not as a matter of course, but of sound discretion, according- to circumstances. Holliday v. Coleman, 2 Munf. 162.
      In Chisholm v. Starke, 3 Call 25, a testator devised slaves to his wife for life, remainder to his children. On the remarriage of the wife, her husband sold the slaves to bona Me purchasers. Held, that if the remaindermen bring a bill auia timet against the husband and the purchasers, a court of equity will decree that the husband must give security for the forthcoming of the slaves (with their increase) at the death of the wife, but that the purchasers need not give such security.
      Creditor. — A bill of ania timet is not applicable, on behalf of a creditor, whose debt is payable at a future time, to compel the debtor to give security for the prompt payment of the debt when it shall become due. See also, Devries v. Johnston, 27 Gratt. 805.
      To Quiet Title. — On the principle of guia timet, a court of equity will entertain a suit by the owner in possession of land, to remove a cloud from his title, by annulling- a deed that by mistake or fraud, conveys the land to another who makes adverse claim thereto, but brings no suit. Stearns v. Harman, 80 Va. 48; Carroll v. Brown, 28 Gratt. 791. These cases hold that when the owner is out of possession, ej eclment is the proper remedy.
    
   Anderson, J.

The appellants are creditors of the appellees by three promissory notes, one bearing date December 2nd, 1871, payable at three months; another one bearing date November 22nd, 1871, payable at four months; and the other bearing date December 20, 1871, payable at four months. On the same day, the. 20th of February 1872, they brought three several suits in equity, by suing out three several subpoenas and attachments in chancery, and on the 26th of the same month filed a bill in chancery in each case, the same in substance ; and in each case upon affidavit of non-residence, and the return of the sheriff an order of publication was awarded against the defendants. The bill in the first case, avers the indebtedness of the defendants to the plaintiffs on the 2nd day of December 1871, in the sum of $438.29 cents, which it is averred is evidenced by a note of that date, payable three months after date. It appears from the bill and exhibits that neither note was due at the time suits were brought.

The bill avers that the firm of Johnston & Wolfe, the defendants, since the giving of the note had become insolvent. But that the said Wolfe owned a tract of land in Frederick county, described in the bill, which was devised to him by the will of his father.

*It alleges that the defendants are non-residents of the state of Virginia, and were so at the commencement of this suit; and that the said Wolfe was in hopeless financial embarrassment.

It further charges, that by a deed dated the 16th of December 1871, shortly before the institution of this suit, and recorded in the clerk’s office of Frederick county on the 27th of December 1871, the said Wolfe conveyed the aforesaid tract to said Johnston, which conveyance was made with intent to hinder, delay, and defraud creditors; by reason whereof the plaintiffs have just cause to apprehend that their said debts may not be paid, and are advised that by the equitable powers of the court, and by its attachment process, the said tract of land may be subject to its payment. The prayer is that the land may be sold and the proceeds applied to the payment of their debt.

At a subsequent term of the court, 24th of May 1872, the three suits by order of the court were to be consolidated, or proceeded in as one suit; and the plaintiffs were given leave to file their amended bill.

The amended bill adds to, and amends the allegation of the original bill, with regard to the conveyance of the land by Wolfe to Johnston, by alleging that the said Wolfe on or before the 16th of December 1871, executed to the said Johnston his writing obligatory for a large sum of money, which he secured to said Johnston by a mortgage upon the land in qttestion, which was admitted to record in the clerk’s office of the county court of Frederick on the 27th of December 1871. And it further charges that a deed purporting to be an assignment of the said mortgage to Miles White, bearing date the 10th of December 1871, which is the date of the mortgage, was recorded in the clerk’s office of said county court on the 5th of January 1872. "x'Copies of both deeds are in the record. The bill further charges that the said mortgage securing the bond aforesaid, was executed together with the bond, for the sole purpose of raising money thereon for’ the firm of Johnston & Wolfe. That White, who is a, money dealer, agreed to advance the money to Johnston on said bond, and that the assignment was drawn up with a view to that end, and was left with White, who failed to comply with his agreement to advance the money; and the bond was never passed to him, but remains in the possession of Wolfe the obligor: which he was never to part with until the arrangements for raising the money were completed. And the bill charges that White fraudulently designing to make avail of said assignment without advancing the money, which was the condition on which it was placed in his hands, refused to deliver it to Johnston or Wolfe who demanded it, but fraudulently retained it. And to the detriment of Wolfe & Johnston, and to the plaintiffs their creditors, had the assignment recorded as aforesaid, to effectuate his iniquitous and fraudulent design. The prayer is that the said White may be made a party to this and the original bill, and be compelled to answer them; and that the said assignment may be set aside, and for general relief. On the 20th of February 1872 notice lis pendens of these suits, the plaintiffs by their counsel caused to be recorded in the clerk’s office of the county court of Frederick.

The court is of opinion, upon the preliminary question raised by the appellees’ counsel, as to the jurisdiction of this court to hear this cause upon the appeal, that inasmuch as the three causes were essentially one, and were very properly consolidated, or united in one, and proceeded in and heard as one cause by the court below, that the matter in controversy upon this appeal 'x'exceeds the amount necessary to invest this court with jurisdiction ; and therefore that the objection raised to the jurisdiction of this court must be overruled.

Upon the merits, the case is presented in two aspects. First, as a proceeding by foreign attachment in equity, or second, as a proceeding' upon the principles of original equity jurisdiction. As has been seen, “the equitable powers of the court,” and “its attachment process,” both are invoked in the bill as clothing the court with power to relieve.

It would seem that the attachment process was relied on only as ancillary or auxiliary to th,e.origiñal equity jurisdiction, and not as a distinct primary ground of jurisdiction. Whether it is material to consider the distinction in this case I will not stop now to inquire, but will proceed with the more important inquiry, whether upon the case made by the original and amended bills, a court of equity has inherent original jurisdiction to afford relief.

By the statute Code of 1873, chap. 175, § 2, p. 1126, a creditor before obtaining a judgment of decree for his claim, may institute any suit to avoid a gift, conveyance, assignment, or transfer of, or charge upon the estate of his debtor, which he may institute, after obtaining such judgment or decree,” &c. The plaintiffs were creditors at the time of instituting this suit. Their claim was debitum in prsesenti, solvendum in futuro. They have present interest in their debtor’s property on which alone they rely for the satisfaction of their debt at maturity, and the getting a conveyance or assignment of it by a third party surreptitiously and fraudulently, and the placing that conveyance or assignment on record, may be the means of enabling him to transfer the property to an innocent purchaser for value, and thereby consummate his fraud, and irretrievably *prevent its application to the payment of the appellants just debt; an apprehension which is well justified, by the circumstances under which he procured the possession of the deed of assignment, and his unjustly and fraudulently withholding it from the debtor; and instead of returning it to him, causing it to be spread upon the record of the county court. It was a wrong to the debtor of the plaintiffs, and it was equally a wrong to them.

There can be no question that Johnston & Wolfe could maintain a suit against White to set aside said assignment, or to compel its surrender to them. If they could, why may not their creditors? Why may not their application to the interposition of a court of equity be made, before their debt is due, to prevent this wrong? They have a present interest which is threatened to be destroyed by the consummation of the fraudulent transaction to the same extent that it would be if their debt was due. The injury to them is the same that it would be, if their debt were due. They have a present interest which is brought into jeopardy by a fraudulent transaction, and which, if not at once arrested, by the interposition of a court of equity, will result in the total destruction of that interest.

It is a favorite doctrine of courts of equity, that they are invested with jurisdiction to prevent injury and wj'ong, as well as to compel the reparation of injuries already accomplished.

I am of opinion, therefore, that a court of equity had jurisdiction to relieve the plaintiffs against the injury by which they were menaced, and the notes all falling due before any decree was pronounced in the cause, the first one falling due a few days after the suit was brought, the plaintiffs were entitled to a decree to subject *the land in question to the payment of their debt, they being entitled to priority over the subsequent attachment creditor. I am of opinion, therefore, to reverse the decree, and to remand the cause to the circuit court for further proceedings to be had therein in conformity with this opinion.

Moncure, P., concurred in the opinion of Anderson, J.

Christian and Staples, J’s, dissented.

Decree affirmed by a divided court.  