
    M’Clung v. Beirne.
    July, 1839,
    Lewisburg.
    [34 Am. Dec. 739.]
    (Absent Bkookis and Caeei,l, J.)
    Case at Bar. — A judgment was rendered the 8th of May 1828, for 148 dollars 63 cents damages, with interest and costs, and on the same day an appeal was allowed. The judgment being affirmed, damages were recovered against the appellant for retarding the execution, and also costs in the appellate court. A fieri facias being then issued and returned nulla bona, the surety in the appeal bond paid 362 dollars 64 cents in satisfaction of the judgment, and within a year after the affirmance, filed a bill to charge real estate aliened by the debtor between the date of the original judgment and the date of the judgment of affirmance. Huijd,
    i.Subrogation — Surety on Appeal Bond.' —The surety is to be substituted in the place of the judgment creditor, and to have the benefit of his Hen.
    2. Lien of Judgment- Interests Subject to — After-Acquired Realty , — The real estate aliened by the debtor between the date of the original judg" ment and the date of the judgment of affirmance, whether owned by him at the dale of the original judgment or acquired afterwards, is subj ect to the lien.
    3. Same — Same—Costs and Damages in Appellate Court. — The lien is not only for the damages, interest and costs recovered by the original judgment, but also for the damages and costs- to-which the creditor became entitled by the judgment of affirmance.
    4. Same — Subjection of Lands Aliened — Inverse Order of AIienation. — in adjusting the equities between the several alienees, the court -will not compel them to contribute pro rata, but will first subject the land last aliened by the debtor, and if that *be insufficient, then the land aliened next before the last, and so on.
    5. Same — Same—Equity of Redemption. — If, however, any parcel of land had been conveyed in trust to secure a debt, and another parcel conveyed afterwards absolutely, the equity of redemption in the land conveyed in trust will be subjected before' the land conveyed absolutely.
    6. Same — Decree of Sale — Rents and Profits.— If none of the parties ask an enquiry to ascertain whether the rents and profits will pay the debt in a reasonable time, there may be a decree for the sale of the property.
    7. Same — Sale of Equity of Redemption, of Lands Aliened — Extent of Sale. — In selling an equity of redemption, the sale will be out and out — not of a moiety only, but the whole ; and as between lands aliened, the whole of the tract aliened last will be sold before any part of the tract aliened first; the sales stopping when the debt has been satisfied, or when lands have been sold equal to half the aggregate value of the whole lands.
    8. Same — Interest.—In ascertaining the amount to be raised by a sale of the property, interest is not to be allowed on the sum of 362 dollars 64 cents paid by the surety, but only on the original sum of 148 dollars 63 cents.
    Dissenting Judge — Case Disapproved. — Stanard, J., dissented on the 3d point, and also on the 4th, and such of the others as conflict with Beverley v. Brooke et al., 2 Leigh 425. The other two judges disapproved tiiat case, and treated it as not a binding authority.
    On the 8th ol May 1828, James Callison obtained a judgment in the superior court of law for Greenbrier county, against John Mays, for 148 dollars 63 cents damages, with interest from the 7th of September 1825 till paid, and the costs of suit. On the day of the judgment, Mays prayed an appeal to the court of appeals, and upon his entering into an appeal bond with Patrick Beirne as his surety, the appeal was allowed. The bond was with the usual condition, that if the appellant should pay the judgment, and all such costs and damages as should be awarded by the court of appeals in case the judgment should be affirmed, then the obligation was to be void. On the 3d of April 1835, it was considered by the court of appeals that the judgment be affirmed, and that the appellee recover against the appellant damages according to law for the retarding the execution thereof, and also his costs by him expended about his defence in the court of appeals.
    *A copy of the decision of the court of appeals was received by the clerk of the circuit superior court of law' and chancery for the county of Greenbrier on the 22d of May 1835, and on the 1st of June 1835 a writ of fieri facias was issued, commanding the sheriff that of the goods and chattels of John Mays he should cause to be made the sum of 148 dollars 63 cents, damages, with interest from the 7th of September 1825 until the 8th of May 1828, also 26 dollars 89 cents costs, and damages at the rate of ten per centum per annum on the aforesaid damages and costs, from the said 8th of May 1828 until the 22d of May 1835, and also 32 dollars 76 cents for the costs in the court of appeals, and 1 dollar 58 cents for costs in the circuit superior court. This execution being returned “no property found,” Patrick Beirne the surety in the appeal bond, on the 3d of August 1835, paid 362 dollars 64 cents in satisfaction of the judgment.
    In the mean time, to wit, between the date of the judgment in the superior court and the date of the affirmance thereof by the court of appeals, Mays and wife, by a deed bearing date the 26th of November 1834, and admitted to record in the office of Greenbrier county court on the 5th of January 1835, conveyed to William M’Clung certain real estate, in trust for the purpose of securing to Samuel M’Clung 1732 dollars 44 cents, with legal interest thereon from the 26th of November 1834.
    Mays having, at the suit of one of his creditors, taken the oath of an insolvent debtor, Beirne, on the 22d of January 1836, filed his bill in the circuit court of Green-brier county, to be substituted to the rights of Callison the judgment creditor, and enforce his lien on the real estate conveyed to M’Clung, which the bill stated had been sold to Thomas Matthews and Hugh Wilson.
    The answer of Matthews and Wilson stated, that at the time of the deed to M’Clung, under which they purchased, there was left in the hands of Mays more *than sufficient real estate to satisfy the judgment; and they insisted that all the real estate so left in the hands of Mays ought to be exhausted before subjecting the property purchased by them. Mays, it was true, had, after the deed to M’Clung under which they purchased, made other conveyances; to wit, a deed of trust of the 1st of December 1834, to Patrick Beirne, to secure a debt to Andrew Beirne; a deed of trust of the 22d of January 1835, to secure a debt to James Withrow; a deed of bargain and sale, of the 27th of January 1835, to William M’Clung; and a deed of bargain and sale, of the 17th of January 1835, to William H. Syme. But they insisted that the judgment debtor could not, by the act of selling or transferring his remaining lands, throw the burthen of that judgment back upon the first purchaser. The land in the hands of the last alienee, they said, should be first subjected, and if insufficient, then the land in the hands of the alienee next preceding the last, and so on until the judgment was satisfied.
    Thereupon the complainant Patrick Beirne obtained leave to amend his bill, and at June rules 1837, filed his amended bill, setting forth the deed of trust of the 1st of December 1834, to the complainant, to secure a sum of money to Andrew Beirne; the conveyance of the 17th of January 1835, to Syme ; a deed of trust of the 22d of January 1835, to Elisha Callison, for the benefit of James Withrow; and the conveyance of the 27th of January 1835, to William M’Clung: stating further, that one of the lots conveyed to Syme had been conveyed by Syme and wife to John Dunlop: and making Mays, Andrew Beirne, Syme, Dunlop, Callison, Withrow and William M’Clung defendants, in order that the property conveyed by those several deeds, or so much thereof as might be necessary, might, according to the principles of equity, be directed to be sold in satisfaction of the money which the complainant had been ^compelled to pay, with interest, and the costs of this suit.
    The defendant William M’Clung, by his answer, insisted that the lien, if it existed at all, was only to the amount of the judgment of the court below, and that the liability of the vendees was in proportion to the value of the land purchased by them respectively from Mays.
    The answer of Withrow insisted that the utmost for which a lien could be claimed by force of the original judgment, was the amount of that judgment with interest and costs, excluding the costs and damages in the court of appeals. It admitted that all the lands held by Mays at the date of the original judgment, and those since acquired, were liable to satisfy it, and to that end the several vendees were bound to contribute pro rata. But the respondent added, that he was not satisfied that the complainant had a right to be substituted in the place of Callison the judgment creditor.
    The cause being heard the 18th of May 1838, the circuit court was of opinion, that the judgment bound the lands owned by Hays at the time of the rendition of the judgment against him, or acquired thereafter and before the judgment was satisfied, and that the complainant was entitled to be substituted to the lien of the judgment; but that whatever might have been the rights of the judgment creditor at law, the complainant had no right to ask more than equity, and could not throw the burthen of payment from subsequent to prior alienees. The decree of the court was, that unless the defendants, or some of them, should pay the plaintiff, on or before the 20th of June following, the sum of 362 dollars 64 cents, with interest thereon from the 3d day of August 183S till paid, and the costs of this suit, there should be a sale of the property conveyed by Mays to William M’Clung, and if the proceeds thereof should not be sufficient, then a sale of the other property, *or so much thereof as might be necessary, in the following order, viz. first, the property conveyed by Mays to Callison for the benefit of Withrow; secondly, the property conveyed by Mays to Syme; thirdly, the property conveyed by Mays in trust for the benefit of Andrew Beirne; and fourthly, the property conveyed by Mays in trust for the benefit of Samuel M’Clung.
    The equity of redemption of Mays in the property conveyed by the deed of trust to Beirne, had, with other property, been conveyed absolutely to Syme by the deed of the 17th of January 1835. But the property embraced in the deed of the 22d of January 1835, from Mays to Callison, was merely conveyed to secure to Withrow a debt of 631 dollars 20 cents, with interest from the 28th of August 1834. So that, in this property,Mays had still an equity of redemption, at and after his conveyance of the 27th of January 1835 to William M’Clung. But the fact of there being such an equity of redemption, which ought to be subjected before the property conveyed to William M’Clung, does not appear to have been adverted to in the circuit court.
    The deed to William M’Clung purported to be in consideration of the sum of 200 dollars. None of the defendants asked for an enquiry to ascertain the annual rents and profits of the property conveyed by this deed or of the property conveyed by any of the deeds.
    The terms of sale directed by the decree were, that the purchaser or purchasers should pay one third of the purchase money in hand, and execute bonds with good security for the residue, payable in six and twelve months; and the land sold. was directed to be held liable for the payment of the purchase money.
    Upon the petition of William M’Clung, an appeal was allowed from the decree.
    The cause was argued in this court by Samuel Price for the appellant, and William Smith for the appellee.
    
      
      Subrogation — Surety — Judgment. — Although a judgment is in fact extinguished by payment, yetit is kept alive in contemplation of equity for the benefit of the surety. Buchanan v. Clark, 10 Gratt. 173; Johnson v. Young, 20 W. Va. 661, both citing the principal case : and Bank United States v. Winston, 2 Brock. R. 252 (Fed. Cas. No. 944, 2 Fed. Cas. p. 743); Enders v. Brune, 4 Rand. 438 ; Powell v. White, 11 Leigh 309 ; Robinson v. Sherman. 2 Gratt. 178 ; Leake v. Ferguson, 2 Gratt. 419 ; Watts v. Kinney, 3 Leigh 272. See foot-notes to Hill v. Manser, 11 Gratt. 522 ; Buchanan v. Clark, 10 Gratt. 164.
      Same — Same.—The doctrine is well settled that where a creditor has two funds, to which he.may resort for the satisfaction of his debt, one of which is primarily liable, and the other only secondarily liable for the payment thereof, the person having the right to resort to the latter fund for the payment ot his demand stands in the situation of a surety to the owner of the primary iund in the application of the equitable principle of substitution in behalf of sureties, and if the fund secondarily liable be applied by the creditor to the satisfaction of his demand the person who stands in the situation of such surety is entitled to be .sub-rogated to all the rights and remedies held by such, creditor for his indemnity. Nuzum v. Morris, 25 W. Va. 569. citing Story's Eq. Juris, sec. 633 ; Bart. Ch. Pr. sec. 328 ; White v. Tudor’s L. C. in Eq. 149-151, 2 Tuck. Com. 492 ; Morrill v. Morrill, 53 Vt. 74 ; 2 Min. Inst. 173 ; McClung v. Beirne, 10 Leigh 394 : Kent v. Matthews, 12 Leigh 590 ; Eddy v. Traver, 6 Paige 521; Hays v. Ward, 4 Johns. Chy. 130 ; Neely v. Jones, 16 W. Va. 625.
      See monographic note on “Subrogation” appended to Janney v. Stephen, 2 Pat. & H. 11. and mono-graphic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
    
    
      
      Lien of Judgment — Interests Subject to — After-Acquired Realty. — For the second point in the syllabus, the principal case is cited in Jeter v. Langhorne, 5 Gratt. 208 : Bailey v. McCormick, 22 W. Va. 101.
      The principal case is cited in Jeter v. Langhorne 5 Gratt. 197, for the proposition that if a judgment be rendered for money, an appeal taken therefrom, and the judgment affirmed, the real estate aliened by the debtor between the date of the original judgment and the date of the judgment of affirmance, whether owned by him at the date of the original judgment, or acquired afterwards, is .subject to the lien.
    
    
      
       Same — Subjection of Lands Aliened — Inverse Order of Alienation. — It is well settled that where land which is subject'to the lien of a judgment or other incumbrance, is sold in parcels to different persons by successive alienations, it is chargeable in the hands of the purchaser in the inverse order of alienation. For this proposition the principal case is cited in Miller v. Holland, 84 Va. 656, 5 S. E. Rep. 701 ; Whitten v. Saunders, 75 Va. 569 ; Payne v. Webb, 23 W. Va. 564; Gracey v. Myers, 15 W. Va. 202 ; Alley v. Rogers, 19 Gratt. 389 ; Jones v. Phelan, 20 Gratt. 241: Henkle v. Allstadt, 4 Gratt. 292 ; Harman v. Oberdorfer, 33 Gratt. 506; McClintic v. Wise, 25 Gratt. 456.
      See also, Conrad v. Harrison, 3 Leigh 532 ; Jones v. Myrick, 8 Gratt. 179 ; Lynchburg Perpetual B. & L. Ass’n v. Fellers, 96 Va. 337, 31 S. E. Rep. 505 ; Brengle v. Richardson, 78 Va. 406 ; Rodgers v. M’Cluer, 4 Gratt. 81, and note; McClaskey v. O’Brien, 16 W. Va. 791. See foot-note to Alley v. Rogers, 19 Gratt. 366 ; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, and mono-graphic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
      In Buchanan v. Clark, 10 Gratt. 179, 181, the court, upon the authority of the principal case held that, “The land not included in the deed of trust should have been first sold, and applied to the prior judgment ; and if insufficient to discharge it, then the lands included in the deed of trust should have been sold, and so much of the proceeds thereof as, with the proceeds of the land not conveyed, amount to a moiety of the proceeds of all the said lands, should have been applied if necessary to the satisfaction of said judgment.”
      Same — Same—Case Contra Overruled. — Contrary to the rule set forth above, it was held in Beverley v. Brooke, 2 Leigh 425, that where a judgment is obtained against a debtor, who afterwards aliens his lands to divers alienees by divers conveyances, all the lands in the hands of the several alienees are alike liable to the judgment creditor, and must contribute pro rata. But in Jones v. Phelan, 20 Gratt. 242, the court, in discussing the principal case, and Beverley v. Brooke, 2 Leigh 425, said: “In the later cases decided by this court on the subj ect, McClang v. Beirne, has been followed, and Beverley v. Brooke, has been considered as overruled. Rodgers v. M’Cluer, 4 Gratt. 81; Henkle v. Allstadt, 4 Gratt. 284; Alley v. Rogers, 19 Gratt. 366.” Beverley v. Brooke, 2 Leigh 425, was also overruled by the principal case; and'doubted, but distinguished in Conrad v. Harrison, 3 Leigh 532. The principal case is cited in Alley v. Rogers, 19 Gratt. 388; and Jones v. Phelan, 20 Gratt. 242.
      Same — Lands Sold Contemporaneously. — But where the different parcels are sold contemporaneously, they must contribute pro rata to the satisfaction of the judgment. Harman v. Oberdorfer, 33 Gratt. 497; Alley v. Rogers, 19 Gratt. 366.
    
    
      
       Decree for Sale of Land — Enquiry Into Rents and Profits. — The principal case is cited in Newlon v. Wade, 43 W. Va. 287, 27 S. E. Rep. 245; Rose v. Brown, 11 W. Va. 138; Werdenbaugh v. Reid, 20 W. Va. 591; Cronie v. Hart, 18 Gratt. 745. See foot-notes to Manns v. Fllnn, 10 Leigh 93; Barr v. White, 30 Gratt. 531, and monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      Same — Same—No Enquiry Demanded. — The statute prescribes no particular mode by which it shall be made to appear that the rents and profits will not pay the judgment in five years. When there is doubt about the fact, or an inquiry is demanded by either of the parties, the court will generally direct one of its commissioners to ascertain and report the annual rents and profits of the land. But this is not a necessity in every case. If none of the parties ask such an inquiry there may, in a proper case, be a decree for the sale of the property without it. For this proposition, the principal case is cited in Ewart v. Saunders, 25 Gratt. 208; Brengle v. Rich ardson, 78 Va. 411; Horton v. Bond, 28 Gratt. 821; Rose v. Brown, 11 W. Va. 140.
      Same — Same—Same—Presumption of Waiver. — And the failure by a defendant to demand an inquiry whether the rents and profits of the land will not satisfy the judgment within a reasonable time raises a presumption that such right is waived. For this proposition the principal case is cited in Ewart v. Saunders, 25 Gratt. 209; Brengle v. Richardson, 78 Va. 411; Rose v. Brown, 11 W. Va. 140.
      Chancery Practice — Conveyance in Trust by Debtor of His Lands. — It is the settled practice in Virginia, to entertain the suit of the judgment creditor for relief in equity, when the debtor has, subsequent to the judgment, conveyed his land in trust for the payment of debts, or on other trusts authorizing the sale of the land. Taylor v. Spindle, 2 Gratt. 70, citing the principal case; United States v. Morrison, 4 Peters 124; Fox v. Rootes, 4 Leigh 429.
      Jurisdiction — Setting Aside Fraudulent Conveyance-Moiety of Land. — Upon setting aside a conveyance of real estate as fraudulent, at the suit of a judgment creditor, the court can decree the sale of only one moiety of the land to satisfy the judgment. McNew v. Smith, 5 Gratt. 88, citing the principal case; Stileman v. Ashdown, 2 Atk. R. 477; Haleys v. Williams, 1 Leigh 140.
      The principal case is also cited for this proposition in Buchanan v. Clark, 10 Gratt. 177.
    
   *TUCKER, P.

I am of opinion that . there is no error in the decree in substituting the appellee to all the rights and remedies of Callison under his original judgment. To the benefit of it he had the clearest right, upon the ordinary and well established principles of the court; nor was it necessary to entitle him to it that he should have been a party to that judgment. It is enough that having paid off the amount of it to Callison, to whom he was bound by the appeal bond, he had a right to demand a cession of every remedy Callison had for the recovery of his demand from his debtor. Among these was the execution by elegit, which reached all the lands of which Mays was seized at the date of that judgment, or at any time afterwards. The decree was therefore right in giving him the benefit of it.

Nor do I think there was any error in charging upon the real estate bound by the original judgment, the damages and costs in the court of appeals. Had an execution by elegit been sued out, it must have included those damages and costs, and must have directed the levy of them, as well as of the amount of the original judgment, by' extent of the lands whereof the defendant was seized at its date. They are but emanations of that judgment, which opens to receive them, in like manner " as the interest of the debt, and the fee for issuing an execution, though accruing subsequent to the judgment, are considered and taken to be part of it or appendages to it. In England, upon a writ of error in the exchequer chamber or in parliament, to a judgment in the king’s bench, the damages are certified to that court, for the purpose of being included in the execution, which can only issue from it, as tne record itself still remains there. Tidd’s Practice 1244; Tidd’s Prac. Forms 539; 14 Vin. Abr. 614; 2 Wms. Saund. 101; z. 2 Lilly’s Entries 571. So here, the affirmance and the award of damages are certified to the court below, whose clerk is directed to calculate the amount, *and the execution issues including it accordingly. The damages and costs in the appellate court thus become appendages to the original judgment; for the judgment of affirmance is no new judgment. It is but a ratification of the original judgment.

Passing over the objections to the shortness of the credit allowed and the supposed rigour of the terms of sale, which I think are without foundation, these being matters of sound discretion, and there being nothing in the record to shew it was exercised improperly, (see Perine v. Dunn, 4 Johns. Ch. Rep. 140, and the act of assembly, 1 Rev. Code, ch. 66, § 41, p. 204, which authorizes a sale for cash- or upon credit,) I proceed to consider whether the appellant had a right to demand that the other vendees and incumbrancers should contribute ratably.

In this case it is clear that had Callison the creditor issued his elegit, it must at law have comprehended the whole of the lands in the hands of all the defendants, and a moiety of the whole, without distinction, would have been extended for the payment of his demand. The plaintiff, who seeks in equity to be subrogated to his rights, cannot fairly be shorn of any portion of the remedy by the necessity of coming' into equity. He is therefore clearly entitled to charge the whole. But it is no invasion of his rights, to provide that the respective parties should be chargeable as equity would direct, provided he is neither delayed nor deprived of any portion of his security. Of this he does not complain; and indeed, as I understand the decree, he is not delayed; for the whole of the lands are, I take it, to be advertised together, and then sold in immediate succession, until enough is raised to pay the debt. The question then is, whether, as between the defendants, either is entitled to preference, and what should be the order of liability if they are not to be charged pro rata.

*In the case of Conrad v. Harrison et al., 3 Leigh 532, Sisson mortgaged 360 acres of land to Brock. He then mortgaged 285 acres of the same land to Harrison, retaining 75 acres : and he afterwards again mortgaged the whole, including the 75 acres, to Conrad. In this state of the incumbrances, it was decided that as, after the mortgage to Harrison, he had a right to demand that the 75 acres reserved in the hands of Sisson should be first charged by Brock’s mortgage, so, after the mortgage to Conrad, he had a right still to insist on subjecting the same 75 acres to the discharge of the prior mortgage as far as it would go, for his indemnification. This decision rested upon the plain and equitable principle, that' if there be a mortgage on two acres, and the mortgagor sells one of them, the vendee has a right to demand that the other lot retained by his vendor shall be first sold to satisfy the debt; and as this right at once attaches, it cannot be lost by a sale of the other lot to a third person, but he must sit in the seat of his vendor, and be first liable. This principle had been repeatedly acted upon by chancellor Kent, and is also recognized and approved by the whole court in Nailer v. Stanley, 10 Serg. & Rawle 450, 455. By the unanimous judgment of this court, it was approved in the above mentioned case of Conrad v. Harrison et al.

In the case of Beverley v. Brooke et al., 2 Leigh 425, it had, however, been decided that where a judgment is obtained against a debtor, who afterwards aliens his lands to divers alienees by divers conveyances, all the lands‘in the hands of the several alienees are alike liable to the judgment creditor, and must contribute pro rata. This case is different from that of Conrad v. Harrison et al. as it is the case of a judgment; and that difference was adverted to by the judges in the decision of Conrad v. Harrison, as important. It was not expressly overruled, and it cannot be distinguished, I think, from the case at bar. We must therefore either '"overrule it, or, in deferring to it, we must say that the decree in this case is, upon this point, erroneous.

My own opinion is that that case should be reviewed, as one of the most distinguished judges who decided it, expressly renounced it in Conrad v. Harrison, and as it appears that the point was not fully discussed, nor were the respectable authorities produced which have since been brought before the court. (10 Serg. & Rawle 450; Clowes v. Dickinson, 5 Johns. Ch. Rep. 235.) The case was decided by only three judges, one of whom having since distinctly declared that he could not distinguish it from Conrad v. Harrison et al. which he yet decided the other way, it stands now as the decision of only two judges, and so is no longer an authority binding upon us.

Upon reviewing this case, and revolving the principles decided in Clowes v. Dickenson and Conrad v. Harrison et al., I am compelled to say that I think those principles should govern it. The case put by chancellor Kent, of a judgment binding lands, is precisely the case of Beverley v. Brooke et al. and its naked statement exhibits the truth and applicability of the principle laid down by him. The case put by judge Carr, in 3 Leigh 539, 40, is apt and forcible for its illustration. The argument, seems to me unanswerable, that the right of the prior vendee to demand that his vendor’s land should, for his relief, be first charged under an elegit, cannot be taken away without his consent. The consequences of the contrary doctrine are also worthy of the gravest consideration. A debtor -who, after judgment, has sold part of his lands, has every temptation to defraud his grantee of his right to resort to the residue for his relief. He has every inducement to sell that residue and pocket the price, the purchaser holding it free from more than a pro rata charge. It is worth nothing in his own hands, but by selling it to another, it brings profit to himself.

*It is said, indeed, that the law has settled the rights of the alienees. It has declared that all are in aequali jure, and that equity cannot control the law. I do not think so. Admit that all are upon equal footing at law, the question still recurs whether one may not have superior equity to another. This is admitted as it respects the vendor himself. If the elegit takes (as in strictness it must take, and as in fact it usually does take) all the lands, as well the alienee’s as the debtor’s, the alienee has no relief at law, but yet he may have relief in equity against the debtor himself. Why? Because he has superior equity. So if all are alienees, they are all in asquali jure at law, but the prior has superior equity over the latter. He had, before the last alienation, an equitable right to charge the land so aliened. Has he lost that right by the last alienation? Does not the last alienee take subject to that equity? Assuredly, if he purchased with notice of it. He had notice of the judgment, and that it bound his land. If he had notice that there were other lands which were bound by it, and which were previously aliened, he had notice that what he was buying was, in his vendor’s hands, bound for their indemnity. If he did not know this, he must protect himself, if at all, by a plea of his purchase without notice of the equitable rights of prior alienees. This has not been done in the present case. If therefore it be admitted that the last alienee can protect himself at all, it is not upon the principle that he is, in equity, in asquali jure, but upon the ground that he purchased without notice of the equity, and is therefore not affected by it. It is possible that this might protect him: but as to this, I do not think it necessary now to give an opinion. It is enough here to say, that where the last alienee cannot so protect himself, he must be the first to suffer in equity. *The next error assigned is the failure to ascertain whether the rents and profits would not pay the debt in a reasonable time. To this it may be answered, 1. that the defendant, not having asked the enquiry, is presumed to have waived it. Manns v. Flinn’s adm’r, reported ante, p. 93, — 2. That the price of the property (200 dollars) is a sufficient assurance that the rents of half of it would be inadequate even to pay the interest.

Thus far I have been able to discover no error in the decree. But I am of opinion that in some other points it is clearly erroneous. First, the decree is for interest on the aggregate sum of 362 dollars 64 cents, instead of the original sum of 148 dollars 63 cents. Secondly, the equity of redemption in the land conveyed in trust for With-row should have been first sold out and out, —not a moiety only, but the whole. Haleys v. Williams, 1 Leigh 140,—3. If that fell short of satisfying the demand, then the tract conveyed to the appellant should have been next sold, and so in succession, until the debt should be satisfied, or one half in value of the whole lands should be sold. For had the elegit been executed, one half .of each tract would not be extended, but one half of the whole lands, and that half which was last sold should bare the burden. See Harvey v. Woodhouse, Kelyng’s Rep. 3.

STANARD, J.,

dissented from the opinion that the lien existed from the date of the original judgment, for the damages and costs to which the creditor became entitled by the judgment of affirmance; and also from the opinion that a court of equity should not compel the alienees to contribute pro rata, considering that on this point, and those flowing from it, the decision ought to conform to that in Beverley v. Brooke et al. But

PARKER, J.,

concurring with the president, the decree was merely reversed in those things wherein it *'was declared to be erroneous in the opinion of the president, and in all other things was affirmed. The cause was sent back, that the decree might be reformed, and the case proceeded in according to the principles declared by the majority of the court.  