
    *Brockenbrough’s Ex’x & al. v. Brockenbrough’s Adm’r & als.
    March Term, 1879,
    Richmond.
    I. A deed of- trust is given in 1870 to secure a bona fide debt of $10,000, evidenced by four notes payable in one, two, three and four years, and conveys a tract of land with the crops then upon or thereafter’ grown upon the land until said notes are fully paid, all stock of horses, mules, cattle, sheep and hogs with the increase of the same then on the said land and thereafter placed on the same, and all farming implements used in the cultivation of the said land — Held:
    1. The deed is not per se fraudulent on its face.
    2. Liens — After-Acquired Property. — Quaere: If the crops thereafter grown upon the land, or the increase of the stock, or other stock , or implements afterwards put upon the land, pass by the deed, and will be protected against subsequent execution creditors.
    II. Deed of Quit-Claim — Release of Securities. — Pending a suit by judgment creditors to set aside the deed as fraudulent, the grantor makes a deed of quit-claim to his creditor of all the property conveyed in the deed; but the notes are not given up, nor is the deed of trust released — Heed: That whether the trust is released depends upon the intention of the creditor; and in this case it was held upon the evidence there was no such intention.
    III. Deed of Trust — Reservation—Legality. —A deed of trust to secure certain debts conveys certain real estate, and the grantor reserves in it, to himself' and his family, all exemptions and property allowed by the constitution of Virginia and all laws passed in pursuance thereof, and in addition thereto all exemptions allowed under the bankrupt laws — Held: The reservation is legal and valid.
    IV. 1/ brings an action on a bond against B, which is on the office judgment of the court at its March term, which commences on the third of the month, and the office judgment is confirmed on *the fifth, which is the last day of the term of the court. On the first day of the same term of the court B goes into court and confesses a judgment in favor of S, no suit having been instituted against B by S — Held:
    1. Confession of Judgment — Validity.— The judgment in favor of S is valid, though no suit had been instituted by him against B.
    2. Same — Time of Taking Effect. — That the judgment of 1/ relates back to the first day of the term, and the law not regarding a fraction of ,a day, both judgments stand as of the same date.
    This was a suit in equity in the circuit court of Richmond county, brought in March, 1874, by Lucy C. Brockenbrough, executrix of Littleton Brockenbrough, deceased, and Ferdinand Shackleford, administrator of Thomas R. Shackleford, deceased, judgment creditors of John M. Brockenbrough, to set aside as fraudulent three deeds of trust made by the said John M. Brockenbrough. The creditors secured, as well as John M. Brock-enbrough, answered denying the fraud.
    The first of these deeds bears date the 26th of October, 1870, and by it John M. Brockenbrough and Austina. his wife, for the purpose of securing the payment of four notes therein described, due to I. M. Parr, of Baltimore, conveyed to Thomas Croxton a tract of land called The Island, and personal property, &c. This deed and its provisions are fully set out in the opinion of Burks, J. It appeared very clearly from the evidence that Parr lent to Brockenbrough $10,000 at twelve per cent, interest, and the notes mentioned in the deed were given for that loan; and certainly as to him and the trustee, Croxton, there was no fraudulent intent; and as to Brockenbrough, there was no evidence of fraud unless it was to be inferred from the provisions of this and subsequent deeds.
    The second deed bore date the 28th of February, 1873, and by it John M. Brockenbrough conveyed to T.. R. B. Wright a farm called The Cottage, containing *two hundred and eighty-four acres, in trust to secure to Lucy C. Brockenbrough, executrix of Littleton Brockenbrough, deceased, $3,400, due by bond, and to F. Settle, superintendent of the poor, and his successors in office, $1,327.50, with interest from the 1st of February, 1872, due by bond. And the said Brockenbrough reserved to himself the right to and use of said property until the 1st of January, 1877, unless he, the said Brocken-brough, shall consent to a sale at an earlier day; and upon the further trust that the said Wright, with the consent of the said Brock-enbrough, shall sell at any time; but after the 1st of January, 1877, if payment is demanded by said creditors, upon the terms and in the manner prescribed by § 6, ch. 117, Code of Virginia, in all respects, except that it shall not be for cash, but upon such terms as are provided for in the act of the general assembly entitled an act to regulate judicial sales and prevent a sacrifice of property, approved July 11th, 1870. And upon the further trust that the said. Wright, with the consent and under the direction of said Brockenbrough, shall at any time sell the said tract of land in part or in whole, as said Brockenbrough might deem most expedient, and also cut and sell any wood and timber, and appropriate the proceeds of the same, as well as the rents and profits, to the payment of the debts secured. And it is expressly covenanted and agreed by the said Brockenbrough that he reserves to himself and family all exemptions and property allowed by the constitution of Virginia and all laws passed in pursuance thereof, and in addition thereto all exemptions allowed under the bankrupt law. This deed was admitted to record on the 6th of March, 1873.
    By deed of the same date as the last named, the said John M. Brockenbrough, reciting that his wife, Austina, *had united with him to convey all her right and interest in certain lands mentioned, devised to her by her father, and also in conveying her contingent right of dower in The Island, and that it was agreed between them that in lieu thereof he should settle upon her for her benefit certain other property of adequate value and amount; and whereas her brother, Austin Brockenbrough, did by his will give to said. Austina personal property to the amount of $6,000, which, with interest, now amounts to $8,000, to be made over to her by her husband by deed, which said sum has been received by the said John M. Brock-enbrough; he, in consideration of the premises, and the further consideration of the natural love and affection which the said John M. Brockenbrough has for his wife, conveys to T. R. B. Wright his farm called The Cottage, after the payment of the debts due Lucy C. Brockenbrough and F. Settle; also his interest in The Island, subject to the payment of the debt of Parr, with all crops, horses, &c., &c., in trust for the use and benefit of himself and wife, and in no way subject to his debts, during their joint lives and the life of the survivor, and then to their children. *
    It appears that the plaintiff, Lucy C. Brockenbrough, had brought a suit on the bond held bf her against John M. Brocken-brough, and that at the March term of the county court, which commenced on the third day of the month, she recovered a judgment against him. And she refused to accept the deed executed for her security.
    It appears further that Settle had not instituted an action on the bond due to him, but on the first day of the March term of the court Brockenbrough went into court and confessed a judgment for the amount of the bond without any process having been issued against him. And upon this ground the plaintiffs in their bill contested the validity of his judgment.
    *It appears further that the tract called Island was devised by Moore F. Brockenbrough to his five sons; that under a decree for partition óf the land, in 1853, the commissioners allotted the whole tract to B. W. Brockenbrough, who agreed to take the same at the valuation put upon it, and he cenveyed it to Richard H. Harwood and others in trust to secure the several parties interested in the property their proportions of the purchase-money. One of those parties was Jno. M. Brockenbrough, and another was Littleton Brockenbrough, the testator, of the plaintiff, Lucy C. Their shares were each $5,595.18J4-Another share of the same amount was due to Edward Brockenbrough, who seems to have died previous to the year 1870.
    By deed dated the 30th of August, 1870, B. W. Brockenbrough, in consideration of the payment of all debts due by him to Edward Brockenbrough, deceased, as well as the payment by J. M. Brockenbrough of the liabilities incurred by the said B. W. Brocken-brough on account of The Island property, the release of all demands .held by the said J. M. against the said B .W. Brockenbrough in any way, and of the further consideration of $3,250 paid to the said B. W. by the said J. M. Brockenbrough, conveyed to the said J. M. Brockenbrough the tract of land called The Island, with all the personal property thereon, and his, the said B. W. Brockenbrough’s, interest in the estate of Edward Brocken-brough, deceased.
    In the progress of the cause the court directed a commissioner to ascertain and re~ port what moneys are still unpaid and due by B. W. Brockenbrough as purchaser of the farm called The Island, and to whom the said moneys are due, and also what liens, whether by deeds of trust or otherwise, there are upon the' realty and personalty •mentioned in the complainant’s bill, and any other matter deemed pertinent by him, or that he may be requested to report specially by any party in interest.
    *In pursuance of this decree the commissioner made a report of the debts of J. M. Brockenbrough which were liens, and their priorities. The first is a judgment recovered by Thomas 'Shackleford on the 8th of April, 1867, for $300 of principal, interest and costs $154.15. The second is the four notes due I. M. Parr, secured by deed to Croxton, amounting to $13,240. He states the judgment of Settle as of March 3d, 1873, the first day of the court, and that of Mrs. Lucy C. Brockenbrough as of the 5th of March, the last day of the term, when the office judgment was confirmed.
    The amount due by B. W. Brockenbrough on the purchase of The Island farm, and secured by deed of trust to Harwood and others, principal and interest $11,860.88 to Edward Brockenbrough, and to Wm. P. Brockenbrough a balance of $286.17. John M. Brockenbrough was the administrator of Edward Brockenbrough, and the estate was debtor to him on his administration account $1,048.03, and the other outstanding debts of Edward, not 'paid, were $475.76. The commissioner also makes what he calls an approximate estimate of division of the estate of Edward Brockenbrough, and after deducting the outstanding debts, including the amount due the administrator and the expenses of collecting the fund, he makes the amount for division $10,030.88, one-sixth of which, $1,671.81, was due to B. W. Brockenbrough, W. W. Brockenbrough, John H. Brockenbrough, Robert Knox and wife, and. W. R. Aylett and wife, and one-sixth was due to the three children of Littleton Brockenbrough, each the sum of $557.27.
    While the cause was pending in the court, and after the commissioner had settled the accounts as before stated, the plaintiffs filed a supplemental bill, in which, after referring to these accounts, they charge that since the filing of their bill the debt to Parr, secured by the *deed to Croxton, had been paid off and satisfied by John M. Brockenbrough, and that he has been discharged of the same by the said Parr, and the notes specified in said deed of trust have been surrendered to said Brocken-brough, but that Croxton has not executed to Brockenbrough a deed of release, but still holds the legal title to the property specified in said deed. And making John M. Brockenbrough, Parr, and Croxton parties defendants to the bill, they pray that the properly may be sold for the. payment of their debts, and for general relief.
    Croxton and Parr answered the supplemental bill. Croxton denied the allegations of the bill that the notes due to I. M. Parr and secured by the deed of trust had been satisfied by J. M. Brockenbrough. Respondent had advertised for sale The Island and other property to satisfy said notes, and the sale was enjoined. In this state of matters Brockenbrough made and executed a deed of quit-claim to The Island and certain personal property mentioned in said deed of quitclaim, and put said Parr in possesion of the same until the court shall have settled the question of the validity of various claims sought to be enforced against said property, some of which existed by virtue of a deed of trust made by B. W. Brockenbrough many years before the deed to respondent was made. The sole interest of J. M. Brockenbrough was his equity of redemption and possession,_ the value of the first to him being nothing; no sale could be made on account of the interdict of the court, and when that should be removed this respondent, as well as Parr, knew that liens to the amount of from five to six thousand dollars at least existed ahead of his claim for the notes due said Parr; the possession of the land was valueless to Brockenbrough because of his inability to cultivate it, and hence he was anxious for a sale; but as he could not sell he made the deed and quit-claim to his largest creditor. He avers that no sale of The Island *and other property has ever been made, nor has respondent ever heard of any arrangement to make a deed of release or surrender of the notes secured in the trust to him; certain it is that nothing of the sort has been done. •
    Parr denied that Brockenbrough had paid the notes given him by Brockenbrough and secured by the deed of trust. Up to October 13, 1874, Brockenbrough had paid him $792.38, arising from sales made from The Island, as he understood, and that was all.
    The deed from J. M. Brockenbrough to Parr bears date the 16th of November, 1874, and in consideration of the sum of five dollars Brockenbrough doth grant, sell, convey- and forever quit claim unto the said Parr all his right, title and interest in the farm .called The Island, with the following personal property, specifying it.
    Several witnesses were examined as to what had been said by Brockenbrough and Croxton in relation to this transaction. It is sufficiently referred to by Judge Burks in his opinion.
    The cause came on to be heard on the 25th of November, 1875, wjien the court held that the deed of trust made by J. M. Brockenbrough and wife to T. Croxton for the benefit of I. M. Parr was good against all creditors seeking to establish liens upon the farm called The Island, except those named in the commissioner’s report secured in the deed of trust made by B. W. Brockenbrough to Har-wood and others; and it appearing from receipts filed that W. F. Brockenbrough, W. R. Aylett and wife, the heirs of Littleton Brockbrough, and Knox and wife have been paid the sums reported due them in said report, and it being the opinion of the court that the claims reported as due J. M. and B. W. Brockenbrough passed under the deed to Croxton; and it further appearing that J. M. Brockenbrough has since the death of his wife made to I. M. Parr a deed granting all *his interest in said Island farm, the injunction awarded in the case of Shackleford v. Croxton, &c.. is dissolved.
    The court was further of opinion that the personal property of J. M. Brockenbrough, not in existence on The Island farm at the date of the deed to Croxton, embraced in the deed to I. M. Parr of November, 1874, except such as was substituted or exchanged for that then on said farm, is liable to the existing lien of B. W. Brockenbrough; and it was ordered that one of the commissioners of the court should ascertain and report what personal property passed under the deed from J. M. Brockenbrough to Parr, of November, 1874, not embraced in said deed to Croxton, or substituted or exchanged therefor.
    The deed to T. R. B. Wright having created interests in The Island farm which could not and did not pass under the deed from J. M. Brockenbrough to I. M. Parr, it is ordered that said Croxton, trustee, proceed, as directed by the deed from Brockenbrough and wife to him, to sell said land and report his proceedings to the court. And the court further orders that I. M. Parr surrender to J. M. Brockenbrough the notes taken and secured in the deed to Croxton, trustee. And the trustee, Wright, was directed to proceed to sell The Cottage farm, embraced in the deed of trust to him, and report to the court. The plaintiffs thereupon applied to a judge of this court for an appeal; which was allowed.
    George Walker and Jones & Son, for the appellants.
    Jones & Bouldin, for the appellees.
    
      
      Liens on After-Acquired Pi’operty. — The principa^ case was cited in First Nat. Bank v. Turnbull & Co., 32 Gratt. 695. See also 3 Min. Inst. (2nd Ed.) 268; Code of 1887, ch. 110, §§ 2493-6; Acts 1891-92, p. 782.
      Merger of. Estates. — In Garland v. Pamplin, 32 Gratt. at p. 315, the principal case was cited to support the proposition that while the rule at law may be inflexible, in equity it depends upon circumstances, and is governed by the intention, either expressed or implied (if it be» a fair and just intention), of the person on whom the estates unite, and the purposes of justiee, whether the equitable estate shall merge or be kept in existence. 4 Kent’s Comm. 102 (mar. p.). See also Rhea v. Preston, 75 Va. 757, 776, citing principal case.
    
    
      
      Deeds of Trust — Reservation of Exemptions — Presumption of Fraud. — The provisions of a mortgage or deed of trust may be of such a character as of themselves to furnish conclusive evidence of a fraudulent intent; but the presumption of law is in favor of honesty, and the court cannot presume fraud unless the terms of the instrument preclude any other inference, and the fact that the grantor reserves his exemption rights is no evidence of fraud. Williams v. Lord & Robinson, 75 Va. 390, citing principal case; Young v. Willis, 82 Va. 291; Hickman’s ex’or v. Trout, 83 Va. 478, 495, dissenting opinion of Fauntleroy, J.; Keagy v. Trout, 85 Va. 390; Paul v. Baugh, 85 Va. 955; Hughes v. Epling, 93 Va. 424; Shattuck v. Knight, 25 W. Va. 595.
    
    
      
      Confession of Judgment — Validity.—The principal case was cited in Shadrack’s adm’r v. Wool-folk, 32 Gratt. 707, to support the proposition that a judgment confessed without writ of previous process is riot therefore void.
      Judgments — Commencement of Lien. — See* 2 Min. Inst. (4th Ed.) 312, 313; Yates & Ayres v. Robertson & Berkley, 80 Va. 475; Code of 1887, §- 3567; Acts of 1897-98, p. 507; Nat. Bank v. Distilling Co., 41 W. Va. 531; Hockman v. Hockman, 93 Va. 456.
      Same — Collateral Attack. — As to collateral attack on judgment not void, see Alexander et ux. v. Alexander, 85 Va. 353.
    
   BURKS, J.

Of the various questions to be determined in this case, the one deemed of most importance is, whether the deed of trust to Thomas Croxton, trustee, was made with intent to hinder, delay and defraud the appellants *and other creditors of the grantor, John M. Brockenbrough.

The deed bears date the 36th day of October, 1870, and after reciting that the grantor is indebted to I. M. Parr, of Baltimore, Maryland, by four promissory notes, all of the same date with the deed, for the following sums, and payable as follows, to-wit: one note for $8,200, due November the tst, 1871; another for $2,960, due November the 1st, 1872; another for $3,720, due November the 1st, 1873; and the last for $3,360, due November the 1st, 1874, purports to convey to the trustee a tract of land called “The Island,” lying on the Rappahannock river wHh all the buildings, improvements, crops then upon or thereafter grown upon the said land, until the said notes are fully paid, all stock of horses, mules, cattle, sheep and hogs, with the increase of the same then on the said land, or thereafter placed on the same, and all farming implements used in the cultivation of the land, in trust to secure the payment of the notes aforesaid to the said Parr, as they respectively become due and payable. In default of the payment of any one of the said notes at maturity, the trustee, on request by the said Parr, is empowered and required, after advertising, to proceed to sell the property conveyed, for cash, to an extent sufficient to pay all the costs and charges attending the execution of the trust, including the usual commissions, and whatever sum may be then due to the said Parr on any or all of said notes that may have matured, and upon such credit for the residue as will raise the sum or sums necessary to satisfy any of said notes which may not have matured at the time of the sale; and after fully satisfying the said notes with all interest and the costs, See., aforesaid, the trustee is required to pay the balance arising from the sale to the grantor. No schedule or inventory of the property conveyed was annexed to the deed. *It is contended, in the first place, by the learned counsel for the appellants, that this deed is fraudulent on its face. There is no doubt that the provisions oí a mortgage or deed of trust may be of such a character as of themselves to furnish evidence sufficient to justify the inference of a fraudulent intent. Such is the case where the grantor reserves a power over the property conveyed incompatible with the avowed purposes of the trust and adequate to the defeat thereof. This principle was enunciated in Lang v. Lee & others, 3 Rand. 410, and has been repeatedly recognized by this court in subsequent decisions. Sheppards v. Turpin, 3 Gratt. 357, 373, 397, 398. et seq.; Spence v. Bagwell. 6 Gratt. 444; Addington v. Etheridge, 12 Gratt. 436; Quarles & others v. Kerr, 14 Gratt. 48; Perry & Co. v. Shenandoah Nat. Bank & others, 27 Gratt. 755.

While, however, the principle referred to is established by these decisions, it is equally well settled, in this state at least, that no irresistible inference of intent to defraud is deducible from a provision in a deed of trust postponing- a sale of the property conveyed for a reasonable length of time and reserving the use of the property to the grantor until sale, even although a portion of the property conveyed may be perishable in its nature and consumable in the use; nor is such inference a necessary deduction from the omission to annex a schedule or inventory of the property to the deed; nor is the inference a necessary one where all these circumstances exist in the same case. Lewis & others v. Caperton’s ex’or & others, 8 Gratt. 148; Cochran v. Paris. 11 Gratt. 348; Dance & others v. Seaman & others, Id. 778; Sipe v. Earman & others, 26 Gratt. 563.

I do not mean to say that these circumstances, apparent by the deed, when taken in connection with extrinsic evidence, are not entitled to weight in determining the question of intent. I think they are so entitled; but *alone they are not sufficient to establish fraud. They are consistent with an honest purpose. The presumption of law is in favor of honesty, and “the court cannot presume fraud unless the terms of the instrument preclude any other inference.” Allen, J., in Dance & others v. Seaman & others, supra.

Recurring to' the deed in question, I find nothing in it particularly distinguishing it from other deeds held by this court.to be valid, except the provision conveying or purporting to convey the crops to be grown on the land until the secured notes are fully paid, and the further provision purporting to convey horses, mules, cattle, &c., which might be thereafter placed on the land.

It is contended that these provisions are indicative of fraud; that while the professed object was to secure the debt to Parr, the real design was, while securing Parr, to shield the property from other creditors and secure the control and use of it to the grantor; and thus that the whole deed was vitiated and rendered void as to such creditors.

This would seem to be a harsh inference. If, as was thought by the judge below, the deed was inoperative to bind the future crops and the stock which might thereafter be placed on the land, a futile effort to convey under a mistaken view of the grantor’s right would not be a sufficient ground for the charge of fraud. A man may well mistake the law in such a case and be innocent. Nor, in this view, would the creditors be injured. They might, by legal proceedings, subject the crops and the after-acquired stock to their debts if they chose to do so. If, on the other hand, these provisions were effectual to pass the title at law to the crops and stock, or to bind the same in equity, I do not perceive how fraud can be justly predicated of them. It would seem that the scheme of the deed was, that until default in' the payment of the sums secured, the crops made on the farm, *as well as any stock of the description mentioned which might be placed' thereon, should constitute a part of the trust subject. No benefit is reserved to the grantor. Why should such an arrangement be regarded as fraudulent? To my mind, it is rather indicative of an honest purpose in ihe grantor to dedicate not only what he had, but also what he might make or acquire, to the payment of his debts.

It is a maxim of the common law that a man cannot grant a thing which he has not —nemo dat quod non habet. To 'constitute a valid sale at law the vendor must have a present property, either actual or potential, in the thing sold. Smithhurst v. Edmunds, 1 McCarter (14 N. J. Chy. Rep.) 409. It is said “that things have a potential existence which are the natural product or the expected increase of something already belonging to the vendor.” 9 Bush. (Ky.) 319. Hence, trees, grass, and corn growing and standing on the ground, fruit upon the trees, and wool upon the sheep’s back may be mortgaged. The legal title passes. Idem. There is conflict in the authorities as to whether unplanted or future crops — fruc-tus industriales — can be conveyed so as to pass the title at law. It was held in a recent case in the supreme court of New York that while at law' a mortgage or sale of future-acquired personal property, the mortgagor neither having acquired the thing nor the agent of its production at the time of making the contract, creates no valid subsisting property, yet if the future-acquired property be the product of present property in the mortgagor, as the wool growing on a flock of sheep.' or the produce of a dairy, or of a farm, or anything of that character, the mortgage will take effect upon the property as soon as it comes into existence, and will be perfectly binding at law. Corderman v. Smith, 41 Barb. 404.

In Beale v. White, 94 U. S. R. (4 Otto) 382, it is said that the law will permit the grant or conveyance to take ^effect upon the property when it is brought into existence and belongs to the grantor, in fulfilment of an express agreement, if founded on a good consideration, and it appears that no rule of law is infringed and the rights of third parties are not prejudiced; but it is there admitted that decided cases may be found (and some of them are cited) in which the rule, as stated, is greatly qualified, and others where it is expressly denied if applied in the ordinary business transactions.

There are cases to the effect that while a mortgage of unplanted crops does not operate to pass the legal title, yet in equity a lien attaches as soon as they are produced, which will be enforced. See Butt v. Ellet, 19 Wall. 544; Sillers & wife v. Lester & others, 48 Miss. 513; Cayce, trustee, v. Stovall, 50 Miss. R. 396; White v. Thomas, 52 Miss. 49; Evarman & Co. v. Robb, 52 Miss. 653.

Upon the general doctrine in equity as to liens or charges upon after-acquired property, Mr. Justice Story in Mitchell v. Win-slow, 2 Story, 630, after an examination of the authorities says: “It seems to me a clear result of all the authorities that wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon, personal property, whether then owned by the assignor or contractor or not, or if personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against the latter, and all persons asserting a claim thereto under him, either voluntarily, or with notice, or in bankruptcy.” And this would seem to be the doctrine on which Holroyd v. Marshall, 9 Jur. M. S. 213, was decided by the House of Eords in 1863.

Numerous cases upon the general subject are referred to in 2 Wait’s Actions and Defences, 170, et seq.

*1 have referred to these decisions to show the somewhat uncertain state of the law on the subject of the transfer of titles to and the creation of charges upon future crops and after-acquired property generally;. and as I do not deem it absolutely essential in this case to determine what is the rule on the subject, I desire to be understood as expressing no opinion upon it. The crops raised on the land after the deed was made have all been consumed, except a portion conveyed to Parr by the deed of November the 16th, 1874. The judge below decided that these crops remaining are subject to the lien of the execution of B. W. Brockenbrough. This decision is adverse to the appellees, and they are not complaining. And so as to the property, if any remains, which may have been acquired by substitution or exchange for property specifically conveyed in the deed. The decree appealed from seems to determine the right to this property in favor of Parr’s trustee. The only party who could complain of this is the execution creditor, and he has not appealed and is making no objection.

Looking to the evidence in the case, I find nothing indicating a fraudulent purpose on the part of any concerned in the transaction which is the subject of investigation. The debt secured was for money lent in good faith. No one can doubt that. It is admitted by the counsel for the appellants. The grantor in the deed was more or less embarrassed with debt when he made the deed, but was the owner of a large and valuable estate, and there is no reason to doubt the truth of what he alleges, that he supposed by borrowing the money and getting indulgence on the payment he would be able to discharge all his liabilities. The Island farm was estimated to be worth at least $20,000. The Cottage farm $8,000 or more, and he had other property besides. I have not made the calculation, but from the report of the commissioner it would seem that his liabilities did *not exceed the then estimated value of his property. There seems to have been, at the date of the deed, only one judgment against him, the principal of which was $300. Although The Island was incumbered by the deed of trust made by B. W. Brocken-brough in L853, The Cottage farm and other property were not incumbered, except by the comparatively small judgment before mentioned. He was left in the possession of the property conveyed to the trustee, Croxton, as contemplated by the deed, and as is usual in mortgages and deeds of trust. The evidence shows that he managed the property badly, that the seasons were unfavorable, that his crops were inferior, and that no profit was realized from the farm. «It does not appear that his creditors, at the time the deed was executed, complained oí any unfairness in the transaction. Certainly, no suits were brought against him until more than two years had elapsed. I find nothing in the circumstances of the case which carmot be reconciled with good faith in the making of the deed.

It is convenient, in this connection, to notice the charge made in argument by the counsel for the appellants, that the debt to Parr is usurious. It might be a sufficient answer to say that the question oí usury is not presented by the pleadings. _ Usury is nowhere charged or insinuated in any of the bills. Tf the appellants, as creditors, would have been allowed to make such a defence at all for the debtor, which he did not choose to make for himself, the extent of the relief, if usury had been proved, would have been the abatement of the usurious premium. Martin v. Hall, 9 Gratt. 8. But it does not appear that the transaction was in fact usurious. The sum borrowed was $10,000. The rate of interest then allowed by law was twelve per centum per annum. Interest was computed at that rate, averaged for the four years, and included in the notes, the in-stalments of principal Hnoney, it would seem, being $2,000 for each of the first two years and $3,000 for each of the last two. This is apparent from a calculation furnished by the counsel for the appellees.

The reservations in the deed which was made to Wright (trustee) to secure the debts due to Mrs. Brockenbrough and Settle do not vitiate the deed. The grantor had the right to convey his property subject to the exemptions allowed by law, and such is the effect of the deed. The other objections to this deed need not be noticed, after what has been said in passing upon the validity of the deed to Croxton.

The other deed to Wright, settling the property therein mentioned upon the grant- or’s wife and children, is, of course, void as to existing creditors, unless *supported by a valuable consideration. If any consideration therefor moved from the wife, the deed would be upheld to that extent. Such consideration is recited by the deed, but the recitals are not evidence against the creditors. Blow v. Maynard, 2 Leigh, 29; William and Mary College v. Powell and others, 12 Gratt. 372, 384; Price v. Thrash, 30 Gratt. 515. No answer to the bill was filed for the wife. In his answer, the husband says that he had gotten by his marriage quite a large amount of money and property, and he felt that no law would be violated or any injustice done in an effort to secure a bare subsistence to his wife and children out of the remnants of quite a large estate, and that this is all he attempted to accomplish. He does not allege any such agreement for the settlement as is set out in the deed, and there is no proof of any such, nor, indeed, of any valuable consideration for the conveyance. As, however, the decree appealed from does not pass definitely upon the validity of this deed, the rights of the parties under it may be enquired into and adjudicated by the circuit court in the further proceedings to be had in the cause after it shall have been remanded.

It is further insisted that even if the deed to Cioxton (trustee) were valid, the rights of Parr, the cestui que trust, were extinguished by the deed of the 16th of November, 1874. 'Such would be the ordinary effect at law, on the principle of merger. But, in equity, it is a question of intention. The general rule is, that the mortgagee’s acquisition of the equity of redemption does not merge the legal estate as mortgagee so as to prevent his setting up his mortgage to defeat an intermediate title, if such appears to have been the intention of the parties and justice requires it. 1 Jones on Mortgages, § 380, and author- - ities cited in *note (1). In the case of Forbes v. Moffat, 18 Ves. R. 384, 390, the master of the rolls, Sir William Grant, says: “It is very clear that a person becoming entitled to an estate, subject to á charge for his own benefit, may, if he chooses, at once take the estate and keep up the charge. Upon this subject a court of equity is not guided by the rules of law. It will sometimes hold a charge extinguished where it would subsist at law; and sometimes preserve it where at law it would be merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united.” And it is said that even where the parties have undertaken to discharge the mortgage upon the uniting of the estates of the mortgagor and mortgagee in the latter, it will still be upheld as a source of title wherever it is for his interest, by reason of some intervening title or other cause, that it should not be regarded as merged. “This is based upon the presumption as matter of law,” says Chief Justice Bellows in the recent case of Stantons v. Thompson, 49 New Hamp. R. 272 (cited in 1 Jones on Mortgages, § 873), “that the party must have intended to keep on foot his mortgage title, when it was essential to his security against an intervening title, or for other purposes of security; and it is no matter whether the parties through ignorance of such intervening title, or through inadvertence, actually discharged the mortgage and cancelled the notes and really intended to extinguish them; still on its being made to appear that such intervening title existed, the law would presume conclusively that the mortgagee could not have intended to postpone his mortgage to the subsequent title.”

I think it sufficiently appears from the evidence and the circumstances of the case, that whatever might have been the object and purpose of the deed of November, *1874, it could never have been intended, and was not expected, that the security of the deed of trust to Parr should be discharged. The consideration for the' deed was nominal, and it is incredible that Parr, against his most obvious interest, should have been willing and have designed t-o surrender his security and let in the intervening claimants, thus defeating the very object'he had in view in the pending litigation, to-wit: the preservation of the security which he held. The deed of trust was never actually released, nor the notes surrendered, although it seems to have been the understanding that they should be surrendered. I think the substance of the agreement was, that Parr should hold it subject t'o the existing incumbrances, including his own, according to their relative priorities, and that if Parr’s debt should not be fully satisfied under the deed of trust held by him, he should not look to the grantor for the deficiency; and. this agreement should be upheld in a court of equity.

As to the judgment of Settle:

1. It is contended that it is void, because confessed without a writ being issued. It was confessed in open court; the court had jurisdiction of the subject , and the defendant appeared and confessed judgment in proper person. Such a judgment is not v>oid. The prime object of the writ is to notify the defendant of the plaintiff’s action. It was waived by the appearance of the defendant and the confession of judgment. A judgment on confession is equal to a release of errors. Code of 1873, ch. 177, § 2. Besides, a judgment not void cannot be collaterally assailed because erroneous.

2. It is further contended .that if the judgment is not void, the appellant’s judgment has priority as a lien. The latter was a judgment by default in a pending suit, and has relation to the first day of the term of the court in which it was rendered. The judgment of Settle was Confessed in the same court and on the first day of the same term. Both must be treated as judgments rendered on the same day, at the same time. Neither has precedence over the other in ' point of time. In such case the court takes no notice of the fractions of a day. Coutts v. Walker, 2 Leigh, 268; Skipwith’s ex’or v. Cunningham, 8 Leigh, 271, 279, 280; Withers v. Carter, 4 Gratt. 407; Freeman on Judgments, §§ 369, 370. See the provision of the statute, Code of 1873, ch. 182, § 6.

The omission in the decree of any provision for the payment of the debts chargeable on the estate of E. C. Brockenbrough, if error at all, is not an error for which the decree should be reversed. It is not a final decree. These debts may be provided for in the further proceedings to be had in the cause in the circuit court.

Upon the whole case, I am of opinion to affirm the decree of the court below.

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

Decree affirmed. 
      
      Note. — Statement furnished by Appellee’s Counsel: Transaction — $10,000 was loaned at 12 per cent, interest, the interest being payable yearly, and the principal being payable in annual instalments — $2,000 at one year, $2,000 at two years, $3,000 at three years, and $3,000 at four years.
      In accordance with said agreement, notes were taken as follows, viz:
      1st. Instalment of principal due
      1st Nov., 1871. $2,000
      One year’s interest on
      $10,000 at 12 per cent. 1,200
      -- — $3,200 1st note.
      2nd. Instalment of principal due
      1st Nov., 1872. §2,000
      One year’s interest on $8,000. 960
      -$2,960 2nd note.
      3d. Instalment of principal due
      1st. Nov., 1873. $3,000
      One year’s interest on $6,000. 720
      ——-—-$3,720 3d note.
      4th. Instalment of principal due
      1st Nov., 1874. $3,000
      One year’s interest on $3,000. 360
      -$3,360 4th note.
      Total amount of notes.... $13,240
      Had the agreement provided for the payment of the principal in four equal instalments ($2,500 each), the interest would have amounted to $3,000. Say $10,-000 at one, tw,o, three and four years- — -average time., two and a half years — at 12 per cent.““30 per cent., or $3,000. But the payments were to be $2,000 at one year, $2,000 at two years, $3,000 at three years, and $3,000 at four years — -making the average time two and seven-tenths years, at 12 per cent., and the whole interest $3,240. From which it will appear that the notes were given for the exact and proper amounts according to the agreement for 12 per cent, simple interest.
     