
    Richmond.
    Smith & als. v. Flint & als.
    
    1849. April Term.
    
    1. It is error to decree the sale of land for the payment of a debt, unless the creditor asking the sale, shall shew that the land is legally chargeable in equity, for such payment; and even then, until the amount of the debt shall be ascertained.
    
      2. Land was purchased with funds in which N had a separate estate for life, with remainder to her children; and the land was to be subject to the same uses and trusts. But without the knowledge of S the land was conveyed to her husband, and he conveyed it in trust to secure a debt to creditors, who were informed of the fact that it was purchased with said funds, and was to be held on the same trusts. Held : The said creditors have no right in equity to charge the land with the payment of their debt.
    3. A bill stating the facts of the purchase of the land with the trust funds, and that it was to be held subject to the same uses and trusts, and charging knowledge of the facts by the creditors secured by the deed of trust, being taken for confessed as to these creditors, it is error to decree a sale of the land for the payment of their debts.
    This was a bill filed in the Circuit court of Culpeper by Sarah J. Smith and her children (all of whom but one were infants) by their next friend, to enjoin a sale under a deed of trust executed by Adam Y. Smith, the husband of Sarah J. Smith, to Ambrose P. Hill, to secure debts due to Flint & Hill and others, all of whom were made parties defendants. The bill charged that Sarah Garnett, late of the county of Culpeper, had bequeathed to Sarah J. Smith, for her life, free from the control of her then or any future husband, a number of slaves, which at her death were given to her children. That with the consent of Sarah J. Smith some of these slaves and their increase had been sold and invested in a tract of land in the county of Culpeper, purchased of John S. Welford, executor of Daniel Grinnan, which was to be secured to her and her children. That after applying the price of the slaves to the payment of the purchase money of the land, there remained a balance of 900 dollars still due, for which a deed of trust was given on the land, which was executed by Adam Y. Smith and his wife. That Sarah J. Smith had supposed until recently, that the land had been secured to herself and her children; but that in fact the deed was made to Adam Y. Smith. That Adam Y. Smith had included this land, and also the other slaves not sold, in a deed of trust to Ambrose P. Hill, to secure a debt due to Flint & Hill, and also debts due to other persons mentioned; and that the trustee had advertised the property for sale, although Flint & Hill knew that Adam Y. Smith had no title to the slaves, and that the legal title to the land was outstanding in the trustee in the deed to secure the balance of the purchase money.
    The trustees and cestuis que trust in both deeds, and the husband, were made parties defendants, and called upon to answer, and an injunction to the sale was prayed for, which Avas granted.
    
      Flint & Hill answered the bill. They set out the mode in which the debt due to them was created; and it appeared that the trust was intended to secure to them a debt then due, and also future advances from their store to Adam Y. Smith. They farther said that they had no knowledge from what source Adam Y. Smith derived the funds to buy the tract of land, but supposed he had paid so far as he had gone, with his own funds ; the contrary of which they did not then admit, but required strict proof. The bill was taken for confessed as to the other defendants.
    The facts of the case are as set out in the bill; and this Court Aims satisfied that Flint & Hill were informed by Adam Y. Smith, before the execution of the deed of trust, that the land so far as paid for, was paid for by the proceeds of the sale of the slaves bequeathed to Mrs. Smith and her children.
    
      In the progress of the cause the Court below directed an account of the amount of the debt due Flint & Hill; and when that report came in a decree was made that unless Adam Y. Smith, or some one for him, should within six months from the date of the decree, pay to Flint & Hill, and to each of the other cestuis que trust, the amount of their respective debts, that certain commissioners named should, after advertising the sale of the land conveyed by the deed of trust, proceed to sell the same at public auction, on the terms of one third of the purchase money in cash, and the balance in two equal annual payments. And it not appearing to the Court what amount was due to Welford, executor of Grinnan, the vendor of the land, an account was directed to ascertain that fact. And then the decree declared, that it was not to be considered as settling the question ivhether or no the defendants, or any of them, had a lien on the said tract of land for debts contracted before the execution of the deed of trust to Ambrose P. Hill; and therefore, and because the balance due to Welford was not ascertained, the Court would proceed thereafter to make such further order as might be proper for disposing of the funds that might arise from the sale of the land. From this decree the plaintiffs applied to this Court for an appeal, which Avas allowed.
    
      Patton for the appellants, and Scott for the appellees, submitted the case.
   Cabell, P.

delivered the opinion of the Court.

A Court of chancery ought not to direct the sale of land, for the payment of a debt, unless the creditor asking the sale, shall shew that the land is legally chargeable in equity, for such payment, nor even then, until the amount of the debt shall be ascertained.

The appellee John S. Welford, ex’or of Daniel Grinnan, has an unquestioned lien on the land in the proceedings mentioned, for the payment of his debt, under the deed of the 7th of June 1836, from Smith and wife to Herndon; and if the amount of that debt had been ascertained, it would have been proper to direct a sale of the land for its payment. But as the record states that it did not appear to the Court what amount was due, the decree for a sale of the land, for the payment of that debt, was premature and erroneous.

It is charged in the bill, and proved by the evidence in the cause, that the land in the proceedings mentioned was purchased with funds in which Mrs. Smith had a separate estate for her life, with remainder to her children, and that the land thus purchased was to be subject to the same uses and trusts, as the funds with which it had been purchased. The land, therefore, was in equity, the land of Mrs. Smith and her children, although the legal title had been improperly conveyed to Adam Y. Smith. And it appears from the evidence in the cause, that the appellees Thomas O. Flint and Henry Hill, jun’r, had notice before the execution of the deed of the 11th May 1841, by Adam Y. Smith to Ambrose P. Hill, of the interest of Mrs. Smith and her children, in the said land. The Court is therefore of opinion that the said appellees had no right in equity, to charge the said land with the payment of their debt from the said Adam Y. Smith; and that the decree was erroneous in directing a sale of the land, with any view to the payment of the said debt.

The Court is farther of opinion that the decree was erroneous in directing a sale of the land, with a view to the payment of the debts due from Adam Y. Smith to the appellees Thomas Hill, in his own right, and the said Thomas Hill as the late guardian of Sarah V. Hill, now Sarah V. Fisher; these appellees having permitted the bill to be taken as confessed, and therefore having no right to any decree not warranted by the facts stated in the bill.

The decree is reversed with costs; and this Court proceeding to pronounce such decree as the Court below ought to have pronounced, it is decreed and ordered, that the injunction he perpetuated as to all the appellees, except John S. Welford, executor of Daniel Grinnan, deceased; and that, as to him, the cause he remanded, to be farther proceeded in, according to the principles of this decree.  