
    Lewisburg.
    Rodgers v. M’Cluer’s adm’rs & als.
    
    (Absent Brooke, J.)
    1847. July Term.
    
    1. A judgment is a lien upon the lands owned by the debtor at the date of the judgment, in the hands of bona fide alienees for value.
    2. The land last sold by the debtor is to bo first applied to the satisfaction of the judgment. And this, though the last purchaser obtained a conveyance before the first; the first having previously had a good equitable title.
    3. A judgment debtor having obtained an injunction to the judgment, which was afterwards dissolved, and the surety in the injunction bond having been sued thereon, and judgment recovered against him, which he has discharged, ho is entitled to the benefit of the creditor’s judgment lien.
    
      M’Cluer’s adm’rs filed their bill in the Circuit Court of Botetourt against Peter Noffsinger, Joseph Rodgers and the administrator and heirs of Michael Spitler. The case made by the pleadings and proofs is as follows: fn 1824 John Adams recovered a judgment against Michael Spitler in the County Court of Botetourt for 50 dollars, with interest from the 20th of August 1821. To this judgment Spitler obtained an injunction, and M’Cluer was his surety in the injunction bond. In 1838 this injunction was dissolved; and Adams then brought an action on the bond and recovered a judgment against M’Cluer’s adm’rs, which was discharged by them.
    At the time the original judgment was obtained by Adams against Spitler he owned several small tracts of land in the county of Botetourt. One of these he sold and conveyed to Peter Noffsinger by deed dated the 14th of August 1832. He conveyed another tract to Noffsinger by deed dated the 18th of October 1833, which was acknowledged before two justices of the peace on the 22d of the same month. On the 29th of September 1832, he executed to Joseph Rodgers a bond, in which he acknowledged the receipt from Rodgers of 120 dollars as the price of a tract of land he had sold , ancj bound himself to make Rodgers a title to the ian(j wj¡thin twelve months from the date: and on the 21st of October 1833, he did execute to Rodgers a deed for the land. This deed was acknowledged on the 22d, the same day, and before the same justices before whom the last deed to Noffsinger was acknowledged.
    The plaintiffs asked that they might be substituted to the remedies of Adams the creditor, against the lands held by Spitler at the time the judgment was obtained against him; and that these lands in the hands of Noffsinger and Rodgers might be subjected to satisfy them for the amount they had been compelled to pay on account of the suretyship of their intestate for Spitler in the injunction bond. When the cause came on to be heard, the Court, holding that Rodgers was the last purchaser from Spitler, decreed that his land should be first sold to satisfy the claim of the plaintiffs; and if that was not sufficient to discharge their claim, then that the land conveyed to Noffsinger by the deed of the 18th of October 1833, should be sold. Accordingly the commissioner made sale of Rodgers’ land, and made report thereof to the Court, which was confirmed; and then Rodgers applied to this Court for an appeal, which was allowed.
    
      Eskridge, for the appellant.
    
      J. T. Anderson, for Noffsinger.
    
   Daniel, J,

delivered the opinion of the Court.

This Court is of opinion, that there is no error in the opinion and decree of the Judge of the said Circuit Superior Court, of the 8th September 1845, in declaring the judgment recovered by John Adams against Michael Spitler deceased, therein mentioned, a lien upon the lands of which the said Michael Spitler was seized at the date of the recovery, and which he subsequently sold by successive alienations to Peter Noffsinger and the appellant Joseph Rodgers. Nor in declaring that the representatives of Samuel M'Cluer deceased were A entitled to be substituted to said lien to the extent of

124 dollars 19 cents, the amount paid by them in discharge of the judgment recovered by the said Adams against them, upon the bond given by the said Spitler with the said Samuel M’Cluer their intestate, as his security, on obtaining an injunction to said first mentioned judgment. This Court is, however, of opinion, that there is error in said decree, in treating the said Joseph Rodgers as the last purchaser from the said Michael Spitler; and in directing his tract of land to be first sold in satisfaction of the amount due upon said judgment. For though the deed of the said Noffsinger is prior in date to that of the said Rodgers, and in the absence of any proof to the contrary, the said deeds are to be regarded as having been regularly executed and delivered at the several periods their respective dates purport, and the said Peter Noffsinger is, so, to be regarded as having obtained a legal title to the tract of land sold to him, before the said Joseph Rodgers obtained a legal title to the land purchased by him; yet it appears to the Court that long antecedent to the date of the conveyance to the said Noffsinger, the said Rodgers had contracted with the said Spitler for the purchase of the land which is convoyed to him by the deed of the 21st October 1833, had paid the purchase money and obtained from his vendor a bond acknowledging the receipt thereof, and covenanting to convey the title. By virtue of this purchase the said Rodgers acquired a good equitable title to the land sold to him, and, in the opinion of this Court, had a right to insist that the land remaining in the hands of his vendor, the said Michael Spitler, and subsequently aliened and conveyed to the said Peter Noffsinger by the deed of the 18th October 1833, should be sold, and the proceeds applied in satisfaction of the amount due upon the judgment aforesaid jje£ore resort should be had to the land so purchased by ^ sa^ Joseph Rodgers. This Court is therefore of opinion to reverse the decree aforesaid with costs, to set aside the sale made in pursuance thereof, and to remand the cause to the said Circuit Superior Court for further proceedings to be had in conformity with the principles of this decree.  