
    Stuart &c. v. Hamilton's Ex'ors.
    July, 1837,
    Lewisburg.
    (Absent Cabell and Brockenbrough, J.)
    Eiegit — Alter Debtor’s Escape — band Liable to. I f a debtor charged in execution escape, the creditor may sue out a scire facias to Rave a new execution ; and after judgment on sucia scire facias, an elegit may issue to have delivered to the creditor a moiety of all the lands whereof the debtor was seized at the date of the original judgment or at any time afterwards.
    Same — Same—Same—Chancery Practice. — On a hill by a creditor against his debtor who has escaped, and the debtor’s alienee, to subject lands devised to the debtor after his escape, and conveyed away by him while at large, a court of equity will decree a sale of so much as is liable to the elegit lien, to wit, a moiety, if it appear that the profits thereof are insufficient to Keep down the interest of the debt. But it will go no farther. It will not decree a sale of the whole lands.
    Upon a decree obtained in the late supe-riour court of chancery holden at Geen brier courthouse, by Robert Kelly and Samuel Hutchison as executors of John Hamilton deceased, against David Stuart and Susanna Wilson, for 339 dollars 31 cents with interest from the 3rd day of August 1819 till paid, the plaintiffs, on the 26th of *July 1824, sued out a writ of capias ad satisfaciendum, returnable to October following, upon which the marshal made return that he had executed the same on David Stuart and committed him to the jail of Nicholas county. Stuart broke jail soon afterwards, and made his escape, but was retaken and recommitted to the same jail. He escaped a second time, and an escape warrant was issued against him by a justice of Nicholas county on the 10th of August 1826, under which he was taken on the 30th of April following, by the sheriff of Greenbrier, and committed to the jail of that county. At the election in Nicholas county in April 1829 for a delegate to the general assembly, an equal number of votes was given for Stuart and the opposing candidate, and the high sheriff giving the casting vote in favour of Stuart, he was returned duly elected. In November following, being shortly before the session of the general assembly, Stuart presented a petition to a judge o* the general court, stating that he was advised that it was his duty to attend the legislature, and praying a writ of habeas corpus. The writ was awarded him, and upon the return thereof the judge ordered that he should be delivered from the custody of the jailor, according to the act of assembly. He failed, however, to return to jail after his privilege as a member of assembly had expired; and on the -first of May 1830, a justice of Greenbrier issued an escape warrant against him; but it seems that he was never again taken.
    After the writ of capias ad satisfacien-dum had been levied, Christopher Stuart, the brother of David, died, having made a will bearing date the 24th of December 1825, by which, after directing that all his just debts should be paid, he gave to his-brother David a lot in the town of Sum-mersville. At January term 1826 of Nicholas county court, the will was admitted to record, and David Stuart qualified as executor thereof. Very soon after his testator’s death, David Stuart conveyed *the lot in Summersville to Samuel Neil. The deed bears date the 10th of January 1826, was admitted to record in Nicholas county court at February term, and purports to be for the consideration of 300 dollars.
    In August 1833, Hamilton’s executors filed a bill in the circuit court of Nicholas against David Stuart in his own right and as executor of Christopher Stuart, and against Samuel Neil, alleging that the testator’s personal estate was more than sufficient to discharge his debts; claiming a lien upon the lot in Summersville by virtue of the proceedings before mentioned; charging that the deed to Neil was fraudulent in fact, and asking a decree for the sale of the property. The defendants answered, denying all fraud, and alleging that, the deed was made to satisfy a bona fide debt which Neil had discharged as the surety of Stuart. They denied that the plaintiffs had any lien by virtue of their decree or execution, but insisted that if any such lien existed, it was only on a moiety. Depositions were taken by the plaintiffs, proving that the debt could not be made out of Stuart except by a sale of the property sought to be subjected; that no one occupied the premises; and that the lot was cultivated by a tenant, whose rent was only 3 or 5 dollars a year.
    The circuit court was of opinion, first, that although the ca. sa. had been levied, yet as the debtor had escaped, the executors might again resort toan elegit; and secondly, that there was a lien still remaining by virtue of the levy of the ca. sa. “To hold,” said the judge, “that the creditor has lost the ca. sa. lien, would be permitting the debtor to take advantage of his own wrong, and depriving the creditor of a right which the law gives him, and which is a perfect right, so far as any action is required from him; for on procuring his ca. sa. to be served, his power is at an end. It is true that he cannot ordinarily enforce the lien the law has thus given him, until the happening of a certain event *depending on the will of the debtor, that is, until th$ act of insolvency ; but if that act of insolvency is prevented by the unlawful escape of the debtor, the creditor should not be prejudiced by it. He has done all that the law requires of him. The postponement of the consummation of his lien, so long as the debtor chooses to remain in custody, is intended for the benefit of the debtor alone; and this he waives by his escape.” The circuit court therefore adjudged the deed to Neil to be null and void, and decreed a sale of the house and lot. From this decree an appeal was allowed.
    Reynolds, for the appellants.
    Price, for the appellees.
    
      
      Writ of Ca. Sa. — Lien of. — By statute, the writ o)' 
        ca. sa. was expressly made a lien on all the personal and real estate of the debtor from the time it was levied. But this lien, while express, conferred upon the creditor but an inchoate right until the debtor took the oath of insolvency ; and if he died in j ail the security of the creditor was lost. Werdenbaugh v. Reid, 20 W. Va. 592 ; Hutcheson v. Grubbs. 80 Va. 255, both citing the principal case.
      Judgments — Lien—Issuance of Elegit Unnecessary.— In Taylor v. Spindle, 2 Gratt. 57, the principal case was cited as sustaining the lien of a judgment from its date, though there was no elegit or election of one at any time, and though the suit in equity was commenced about nine years after the judgment was rendered.
      Same — Same — Limitation of Enforcement. — The right to enforce the lien of a judgment, although the statute declares that it may always be enforced in a court of equity, is confined to the time that an action may be brought or scire facias sued out thereon, and after that time the lien ceases to exist. Werdenbaugh v. Reid, 20 W. Va. 596. citing Bart. Ch. Pr. 109 : Eppesv. Randolph, 2 Call 125: Stuart v. Hamilton. 8 Leigh 503, Taylor v. Spindle, 2 Gratt. 44; Brown v. Campbell, 33 Gratt. 402.
      See generally, monographic note on “Judgments” appended to Smith v. Carlton, 7 Gratt. 425.
    
   TUCKER, P.

J cannot think with the superiour court, that the escape of a debtor from execution at once invests the creditor with a right to charge his lands in equity, in the same manner as if he had remained in custody and taken the benefit of the insolvent act. So to decide is to legislate, not to adjudicate. The provision might indeed be very just and very salutary, but the legislature alone can give it existence. Hitherto it has not done so. It has declared the conveyance oí the debtor’s lands, indeed, to the prejudice of the creditor, to be null and void; but while the debtor remains in custody, he is not liable to be proceeded against in equity. It has moreover declared that the lands shall be bound from the date of the levy; but they nevertheless cannot be charged by bill in equity, until the debtor takes the insolvent oath. They are indeed so far bound, that no subsequent sale of them can divest the right of the creditor to charge Ihem whenever his rights become consummate by insolvency. But until then, they are only bound in like manner as goods are bound by tbe '^delivery of a fi. fa. to the sheriff, to which it is obvious the statute

had reference. The levy therefore of the ca. sa. constitutes a lien sub modo only, which can never be available until it is consummate by insolvency. If the defendant dies in execution, the creditor is then remitted to his new execution, and even in that case cannot, I conceive, resort to the lien of the ca. sa. Still less can he do so in case of the escape; for the very proceeding against the land is a waiver of the right to take the body, and is therefore a waiver of the ca. sa. For if the debtor were to surrender himself, or to be taken by the jailor on an escape warrant, he must be discharged, unless we admit the monstrous hypothesis that the creditor may hold the body and yet proceed against the property. Indeed it is obvious that if the creditor waives his ca. sa. he cannot avail himself of its lien: and if he does not waive it, then the debtor may return to custody, or be taken by the officer, who has a right to sue out an escape warrant himself; and thus the bill of the creditor must either be defeated, or he must be recognized as having the double remedy against the lands and body. This cannot be conceded. I am therefore of opinion Shat the decree of the circuit court is erroneous.

We come next to enquire whether the creditor had a right to waive his ca. sa. upon the repeated escapes of Stuart, and to apply to a court of equity to relieve him as an elegit creditor. And I think he had. I am of opinion that upon the escape of a debtor, the creditor had at common law, and independent of the statute of Will. 3, a right to proceed against the sheriff, or to retake *the defendant, or to bring an action of debt or scire facias upon the judgment, and thereupon have any execution whatever. Now if he has the capacity to issue a scire facias quare executionem non, a court of equity considers that sufficient, without the actual prosecution of the scire facias, provided it would have jurisdiction over the subject if the scire facias had been proceeded in, and the elegit actually issued and executed. This has been expressly adjudged in the case of a judgment which had been out of date many years. Burroughs v. Elton, 11 Ves. 29. And the same principle was recognized and adopted by the whole court in the case of Fox’s adm’r v. Rootes and others, 4 Eeigh 429, in note. In this case it appears clearly that the realty, which would be taken by an elegit, is altogether inadequate to pay the interest of the debt. Had it been issued, then, a court of equity would direct the sale of the moiety; and as there is a capacity to issue it, such sale may now be directed, unless the intervening rights of Neil forbid. Whether the transaction with him was bona fide or not, is, to say the least, so questionable, that it should not be respected until cleared of every fraudulent imputation by the verdict of a jury. This however will be unnecessary, as his rights must yield to those of the appellees, even though the transaction be perfectly fair. The right of the creditor, upon the escape of his debtor, to waive his unsatisfactory ca. sa. and to be remitted, upon suing out a scire facias, to his original right to sue out any species of execution at his election, revives in its full force the power and effect of his judgment. It resuscitates its lien upon all the lands the debtor had at the time of the judgment or which were subsequently acquired by him; and the language of the elegit, and its command to the sheriff, will be precisely the same as if the ca. sa. never had issued. It will command him to deliver “a moiety of all the lands and tenements whereof the debtor at the day of obtaining the judgment *was seized, or at any time afterwards,” and thus will overreach all mesne conveyances to purchasers with notice, according to the opinion of this court in the case of Fox’s adm’r v. Rootes and others, before cited. And though the purchaser Neil denies notice, it makes no difference, for in truth his conveyance was void by law, as it was made when the ca. sa. was in full force, and its lien unimpaired. He could not in good faith buy what the law declared that Stuart should not sell; and the deed to him being altogether inoperative, because it was avoided by law uno ilatu with its creation, it cannot stand in the way of the elegit creditor.

Upon the whole, I am of opinion to reverse the decree, and to send the cause back for further proceedings, leaving to the creditor the election of dismissing his bill and proceeding by scire facias and elegit, or of taking a decree in this case for the sale of a moiety of the lands in the proceedings mentioned.

BROOKE and PARKER, J., concurred.

The decree of the court of appeals was in the following terms:

“The court is of opinion that there is error in the decree of the circuit superiour court, in this, that it was not competent to the creditor to proceed in equity to subject the lands of the defendant to sale in like manner as if he had taken the benefit of the act for the relief of insolvent debtors, in which case alone the lien of the ca. sa. can be made available. But the court is of opinion that upon the escape of the defendant, it was competent to the creditor either to retake him by an escape warrant, or to waive his ca. sa. and sue out a scire facias quare executionem habere non debet, and so proceed by elegit to extend the lands and tenements which were of the defendant at the date of the original judgment: and the court is further of opinion that having a capacity *to sue out the scire facias and revive the lien, the creditor was entitled to come into equity to enforce a sale of the moiety extended (but no more); and that in this cause such decree should be rendered, in case the party should elect to take it, and it should appear that the rents and profits will not discharge the debt in a reasonable time. Therefore it is considered that the said decree be reversed and annulled, and the cause sent back for further proceedings according to the principles above declared.” 
      
       Jackson v. Heiskell, 1 Leigh 257, and the case between these parties decided in July 1833. — Note by tile president.
     
      
       Tn the case between these parties in 1833. it is said that after the death of the debtor the lands may be proceeded against. But that means, by suing-out an elegit; for at common law the death of the debtor in execution was a complete satisfaction of the judgment. To remedy this, the statute was made; but it. only gives a right to a new execution, and does not enforce the ca. sa. lien. — Note by the president.
     