
    *Rogers & Brothers v. Marshall and Others.
    April, 1833.
    (Absent Brooke. J.)
    Judgments — Ca. Sa. — Execution of Mortgages between Judgment and .Service of Ca. Sa.— Priority. — A. re. covers a judgment against B. at August term, and sues out a ca. sa. tliereon in October, under which B. is taken in exeention. and in November takes the oath of insolvency, and is discharged, under the statute for the relief of insolvent debtors; in the interval between the date of A.’s judgment and the service of his ca. sa. on 15. sundry mortgages are executed by B. and duly recorded, to secure sundry debts to other creditors: Heed, that by the actual service of A.’s ca. sa. on B. the lien of A.'s judgment was destroyed, and A. could then stand only on the lien given to the ca. sa. executed by the statute of executions, 1 Rev. Code, ch. 131, §10, and that, therefore, the mortgagees are entitled to the benefit of their mortgages.
    Rogers & brothers recovered a judgment against Lane, for 745 dollars with interest and costs, in the county court of Frederick, at August term 1823, ánd sued out a capias ad satisfaciendum thereon, in October, returnable December, following. Dane, being already in custody of the sheriff under other writs of ca. sa. sued out by other creditors, was charged in execution under the ca. sa. of Rogers & brothers also; and on the 4th November 1823, he took the oath of insolvency; and was discharged, in all the cases, under the act for relief of insolvent debtors. 1
    After the date of the judgment recovered by Rogers & brothers against Lane, and before their execution, or any of the other executions sued out against his bodjr, had been served upon him, several deeds executed by Lane conveying property for the security, satisfafction and indemnification of other creditors, were duly recorded: namely, 1. three deeds of trust, one dated the 18th April, and the other two the 9th August, and all recorded on the 12th August, 1823, conveying sundry real estate to Thomas Marshall, trustee, in trust to secure debts amounting to 1372 dollars due to A. C. Cazenove and A. C. Cazenove & Co. 2. A deed of trust, dated the 22nd August and recorded the 15th September 1823, conveying other real estate to the same Thomas ^'Marshall, in trust to indemnify William Vanmetre and James Wray against suretyships and other responsibilities they had incurred for Lane.
    There was another deed alleged to have been executed by Lane, on the day when Rogers & brothers recovered their judgment, conveying sundry personal prof> erty to W. Robertson, in trust for the security and indemnification of Vanmetre; but this deed not being in the record, the date of the execution and of the registry thereof, did not appear. And there were two deeds of assignment to Vanmetre, of sundry debts due to Lane, dated the 22nd August 1823.
    In the schedule of his effects made by Lane, on taking the oath of insolvency, was included his equity of redemption of the mortgaged subject comprised in all the foregoing deeds, and sundry other property likewise under prior incumbrances.
    Rogers & brothers exhibited their bill in the superiour court of chancery of Winchester, against Lane, the trustees, and the cestuis que trust, setting forth the facts above státed, insisting that as their judgment against Lane was recovered before the deeds executed by him for the benefit of Cazenove, Cazenove & Co., Vanmetre and Wray, and Vanmetre, were recorded, and indeed before all but one of them were executed, they had, by force of the judgment, a prior lien on the real estate of Lane mortgaged and conveyed by the deeds; and were entitled to have satisfaction of their judgment out of the trust subject, in preference to the cestuis que trust; alleging also, that the deeds executed for the benefit of Van-metre, were executed to delay and hinder Lane’s creditors in the recovery of their just claims, and were fraudulent in fact; and praying that all the deeds might be set aside, and the property thereby mortgaged sold for the satisfaction of their judgment; and general relief.
    The defendants, in their answers, insisted, that Rogers & brothers, by the suing out and levying of their ca. sa. against Lane, had lost the lien of their judgment, and thenceforth were onlj' entitled to the lien of their ca. sa. *executed, under the provision of the statute (1 Rev. Code, ch. 134, (* 10, p. 528) ; and as that statute made the ca. sa. executed a lien on the real estate of the debtor, only from the time the execution was served, and the deeds under which the defendants claimed having been all recorded before the ca. sa. sued out by Rogers & brothers was served on Lane, therefore the cestuis que trust, claiming under those deeds, were entitled to the full benefit of them. And Vanmetre denied the allegations of fraud imputed to the transactions in which he was concerned.
    The chancellor dismissed the bill as to Marshall, the trustee, A. C. Cazenove, and Cazenove & Co. as to whom the controversy turned wholly on the question of law presented by the pleadings; and Rogers & brothers appealed from the decree to this court.
    The cause was argued here, by Johnson for the appellants, and Leigh for the ap-pellees.
    I. Johnson premised, that the judgment recovered by Rogers & brothers against Lane, gave them a lien on all the real estate then held by the debtor; and that, therefore, at the time, when the deeds were executed, under which Cazenove and Cazenove & Co. claimed, the real estate thereby mortgaged by Lane to them, was subject to the lien of the judgment, and the deeds only passed the title to the trustee subject to that incumbrance. And then he contended, that the subsequent suing out of the ca. sa. by Rogers & brothers, and the service thereof on Lane, did not. destroy the lien of the judgment. For, he argued, that though the e,ifect of the suing out and service of the ca. sa. at common law, might have been to deprive the judgment creditors of their right to sue out an elegit on their judgment, and so to destroy the lien of the judgment on the debtor’s lands, yet the law was altered, in this respect, by the provision in the statute of executions, 1 Rev. Code, ch. 134, § 10, whereby the ca. sa. executed was made a lien on the whole of the lands of the debtor from the time of levying the writ. *The judgment was a lien on a moiety of the debtor’s lands, which continued in full force till the ca. sa. was served on the debtor; and then, this provision of the statute made the ca. sa. executed a lien on the whole of them. That which gave a lien on the whole, could not justly be construed to take away the previous lieAon the moiety. This statute, he insisted, was intended to give the creditor suing out the ca. sa. a more beneficial lien on the debtor’s lands, than his judgment gave him; not to destroy the lien of the judgment on the moiety, but to preserve and include it in the lien of the ca. sa. executed on the who¡e. And he referred to the case of Fox v. Rootes, as an authority in point. In that case, he said, certain creditors had obtained a decree against Rootes; after which Rootes executed a deed of trust, conveying real estate for the benefit of other creditors, of whom Fox was one: the creditors claiming under the decree, sometime after the execution of the deed of trust, sued out a ca. sa. upon their decree against Rootes, which was executed on him, and he discharged from custody under the act for the relief of insolvent debtors: and this court held, that the creditors claiming under the decree, were entitled, notwithstanding their ca. sa. executed on Rootes, to have satisfaction of their decree out of the lands which had been mortgaged in the meantime by Rootes’s deed of trust, in preference to Fox, whose debt was secured by the deed.
    Leigh, for the appellees,
    said it was clear law, that the lien of a judgment on the lands of the debtor, was only the consequence of the capacity of the creditor to sue out an elegit on his judgment, and extend the lands to satisfy the debt; and that if a ca. sa. be sued out on a judgment, and the debtor be actually taken and charged in execution under that process, the creditor can never afterwards have an elegit on his judgment. The 10th section of the siatute of executions made a ca. sa. executed a lien on the whole of the debtor’s lands, from the time of the service of that process; but this lien was wholly distinct from, and indeed incompatible with» the lien of the judgment. And *in Jackson v. Heiskell, 1 Leigh 257, 270, 278, it was agreed by the counsel, and it was the opinion of the judges, that a judgment creditor who sues out an execution against the body of his debtor, and levies it, surrenders the lien of his judgment by having elected this process of execution; that the lien of the judgment can never be revived but by the death of the debtor in execution, or his escape or rescue; that in lieu of the lien of the judgment, so surrendered, he obtains the statutory lien of the execution, commencing at the date of its levy ; and that this lien has no relation back, so as to affect any prior right of creditor or purchaser, but every fair purchaser and creditor, whose rights are prior in time, have preference by law. As to Fox v. Rootes, he said, it was hea^d before a court of three judges, and there was such a remarkable diversity of opinion among" them on the several points involved in the case, that the judges themselves, sensible that the adjudication could settle no principle, desired that it should not be reported. It was manifest from the decree, that the opinion, in that case, on the point mentioned by the appellants’ counsel, was founded on the very peculiar circumstances of the case.
    
    *11. Johnson said, that supposing the principle of the decree right, yet the bill ought not to have been dismissed as to the appellees: they should have been retained in court, in order that the chancellor might compel the execution of the trust for the benefit of the cestuis que trust and of the judgment creditors, and appropriate the surplus, if any, to the satisfaction of the judgment.
    Leigh said, this was a matter of very little importance. It was plain enough there could be little or no surplus; and whatever there might be, would vest in the sheriff for the benefit of the ca. sa. creditors, at whose suit Lane was in custody when he took the oath of insolvency; and some of them, who are not parties to this suit, had priority over ^Rogers Sl brothers. Besides, the object of the bill was to set aside the deeds; and it was only in case they should be set aside, that a sale of the subject was prayed.
    
      
      Judgments— Execution of Ca. Sa. — Effect.—In Leake v. Ferguson, 2 Gratt. 432, it is said, the creditor here resorted to the ca. sa., and after taking out the ca, .sa. and having it executed he can no longer stand on the lien of the judgment, citing Rogers v. Marshall, 4 Leigh 425. This is certainly true, under the •decisions oí this court so far as respects the creditor, and with respect to debtor on whom the ca. sa. is executed. Yet the services of the ca. sa. is not an actual discharge of the judgment.
      Also, in Werdenbaugh v. Reid, 20 W. Va. 592, it is said, the writ of ca. sa. was by statute expressly made a lien on all the real and personal estate of the debtor from the time it was levied. But, this lien, while express, conferred upon the creditor an inchoate right until the debtor took the oath of insolvency; if he died in jail the security of the creditor was lost. Citing Stuart v. Hamilton, 8 Leigh 507; Rogers v. Marshall, 4 Leigh 425. The principal case is also cited on this subj ect in foot-note to Jackson v. Heiskell, 1 Leigh 257; foot-note to Foreman v. Loyd, 2 Leigh 284.
      See monographic notes on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, and “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
      †The case of Fox's adm’r v. Kootes and others was an appeal from a decree of the superiour court ol chancery ol Fredericksburg, which was decided in December 1828. There were only three judges present at the hearing — Oabull, CoAT/rmiand Oarii. The iollowing- is a copy of the decree:
      “A majority of the court is oi opinion, that the plaintiffs claiming- under the deed from Rootes senior to Fox, dated the 1st March 1821, are purchasers for valuable consideration, and as such, within the protection of that part of our statute of frauds, which is substantially taken from 27 Eliz. ch. 4. They have, therefore, an undoubted right to apply to a court of equity for the purpose of removing out oi their way, any obstruction to the fair and just enforcement of their incumbrance. With respect to the deed executed by Thomas Rootes senior to his son Thomas Rootes, bearing1 date the 18th February 1818, purporting to convey to his son the GouldhiU tract ot land in the proceedings mentioned, and which deed it is the object of the bill to set aside, it appears to a majority of the court, 1. that this was a voluntary deed: 3. that it was not recorded until eight years after its date; 8. that, during all the intervening time, the existence of the deed was carefully concealed from the world; the grantor remained in lull possession of the land from the year 3817, and exercised over it every act of ownership, with the knowledge and assent of the grantee. A majority of the court is, therefore, of opinion, that as to the purchasers under the deed to Fox. and the decree creditors, al.so parties to this suit, the said deed of 1818. is fraudulent and void. With respect to the priorities between the purchasers under Fox’s deed, and the decree creditors, the court is of opinion, that all these creditors take precedence of the. purchasers: Baylor's creditors, 1. on theground ot actual no Lice; and 2. because at the date of the deed to Fox. the lien of their decrees was in full force: Dunlop, because though it does not appear, that he had taken out execution within the year, yet as his decree, is stated in Fox’s deed as an existing debt, and provision therein made for its payrnent. those claiming under that deed are purchasers with full notice of the decree, and cannot be received, especially inequity, to contest its priority of lien. As to the decree creditors before the court, it appears that they are, 1st. Dunlop, who obtained a decree in 3818; and 2n<lly, Baylor's creditors, namely Martin's ex'ors. Graves. Hoomcs. Guy, Jones's ex'ors, Taliaferro. ChUes's adm’r, Pemberton and Tenant (these nine being represented by Battaile), also Catlett, Davis, Grinnan, Grcien and Patton, all of whom obtained decrees in the same suit in 1820. A majority of the court is of opinion, that as between these two classes of creditors, Dunlop has priority; though it has been decided, that a judgment creditor, who has suffered the year to elapse without taking out execution, cannot afterwards overreach in equity, abona fide purchaser of the debtor’s land (such purchase being made after the year), yet this applies, neither in terms nor in principle, to a subsequent judgment creditor, who has not laid out his money on che land, nor trusted the debtor on that fund, but on his general credit; and the same majority considers it a settled rule, that when, in equity, the question is as to the priority of judgment creditors, they are ranked according to the date of their judgments, without inquiring, as between them, whether such judgments have been kept alive by process: the capacity to renew by scire facias being, in such case, considered in that forum as sufficient proof oi the lien; provided it appears, that these judgments are still due. Under this rule, the majority of the court think, that Dunlop musí be first satisfied; next Baylor's creditors, pari passu. It appears, that most of these creditors have issued writ.s of ca. sa. on one of their instalments, which have been served on Rootes, and under which he has taken the benefit of the insolvent debtor’s oath. It is the opinion of a majority of the court, that this proceeding cannot, in a court of equity, postpone these creditors, as to that instalment, to the purchasers under Fox’s deed; because that deed being made, for the security both of the purchasers and those creditors, whatever effort the latter made to procure from another source, satisfaction of their decrees, was an effort to assist and benefit the purchasers, by lessening the amount, for which their security was liable. As it does not appear with certainty, what has been made unuer the executions oí Baylor’s creditors, and what are the balances due them, the chancellor very properly referred chis matter to a commissioner, and also correctly^ ordered, that in,the meantime GouldhiU should be sold, and the proceeds held subject to the future disposition of the court. It is the opinion of a majority of the court, that whatever of this fund shall remain alter satisfying the decree, creditors aforesaid, shall be applied in the order directed by Fox’s deed, to the payment of the purchasers under that deed; and should there still be a surplus, it is not the intention of the court, by any thing in this opinion or decree, to affect the disposition thereof. The court says nothing in this opinion and decree, on the subject of the deed of 1813, conveying the slaves from Rootes senior to Rootes junior, or as to the disposition of said slaves, because it does not consider that subject to be before it: nor is it intended by this decree, to decide at all to as the validity or character of the deeds, from Kootes senior to Prosser. Therefore, it is decreed and ordered, that so much of the decree aforesaid as conflicts with the foregoing opinion, be reversed and annulled, and the residue thereof afurmed <teo. And it is ordered, that the cause be remanded to the said court of chancery to be further proceeded in according to the principles of this decree.'’--Note in Original Edition.
    
   CARR, J.

The principal argument relied on b3r the counsel for the appellants, was, that when the deeds of trust were executed, the property was subject to the lien of the judgment recovered by Rogers & brothers against Lane, and passed, thus incumbered, to the trustee, Marshall; and that the subsequent issuing of the ca. .sa. upon the judgment, and the service thereof upon Lane, did not affect the lien of the judgment: for, though it was admitted that the issuing of the ca. sa. and taking the body of the debtor in ^execution, would, at common law, have destroyed the lien of the judgment, which springs from the capacity of the creditor to take out an elegit, it was contended, that the provisions of our law of executions changed all this, by making a ca. sa. when levied, a lien on the whole estate of the debtor, real and personal. The judgment, it was said, bound half of the land to the moment of levying the ca. sa.; and how, it was asked, could that destroy the lien on the half, which gave to the same party a lien on the whole’ It is, certainly, the rule of the common law, that if the debtor’s body be taken on a ca. sa. it is a satisfaction of the debt, and the creditor can have no' other execution, and especially he cannot have an elegit. The few exceptions to this rule, as was justly said by counsel in the argument of Jackson v. Heiskell, “are founded on after circumstances, which defeat the effect of the process, and disappoint the creditor of that satisfaction, which the law supposes such process to afford; as rescue, escape,, or death of the debtor in execution.” The authorities for this doctrine are cited in that case. In that case, too, the judges who were inclined to give the ca. sa. lien the greatest extent (and whose opinions for going so far, have been since overruled, Foreman v. Loyd, 2 Leigh 284,) admitted, that no creditor, after taking out a ca. sa. and getting it executed, could stand upon the lien of the judgment.

The appellants’ counsel relied upon the decision in the case of Fox v. Rootes; on that point in the case, where the court, in comparing the liens of the creditors under the decree, and the purchasers under the deed of trust, did not consider the deed as destroying the lien of the decree creditors, though they had sued out writs of ca. sa. on their decree, on which, the debtor’s body had been taken in execution, and he was discharged on taking the oath of insolvency under the act for the relief of insolvent debtors. It might be a sufficient answer to that case, to say that, according to the rule of this court, it is not authority ; being the decision of a majority only of a court of three judges: but, *in justice to my brethren, with whom I sat and from whom I differed as to that point, I must observe, that they by no means intended to lay down this as general doctrine, but simply as the result of the peculiar circumstances of that case. This is apparent from the language of the decree, which is as follows: “It appears, that most of these creditors [the creditors by decree] have issued writs of ca. sa. on one of their instalments, which have been served on Rootes, and under which he has taken the benefit of the insolvent debtor’s act. It is the opinion of a majority of the court, that this proceeding cannot, in a court of equity, postpone these creditors as to that instalment, to the purchasers under Fox’s deed’; because that deed being made for the security both of . the purchasers and these creditors, whatever effort the latter made to procure from another source, satisfaction of their decree, was an effort to assist and benefit the purchasers, by lessening the amount for which their security was liable.”

Another objection to the decree was, that it dismissed the bill of the plaintiffs as to the appellees, instead of keeping those parties in court, and superintending the sale of the mortgaged subject, and distribution of the proceeds, so that, in case . of any surplus, it might have been applied to the judgment of these plaintiffs. The answer is. that the bill had no such object; it was brought simply to remove these deeds out of the plaintiffs’ way as fraudulent. It is too, apparent enough, that the fund was utterly inadequate to the satisfaction of the prior liens; and the knowledge of this, was probably the reason, why the plaintiffs preferred to take an appeal from the decree immediately, instead of asking the court to take management of the fund, and give them any surplus which might remain.

I think the decree must be affirmed.

CABFLL, J.

I have been always sur-prized to hear the case of Fox v. Rootes referred to as authority; at least, as to those points which received the sanction of two only of *the three judges who sat in the case. This court consists of five judges; and although three of them, being a majority, constitute a court competent to decide any case which may be brought before it, yet a point decided on the opinion of two only of the three judges so constituting a court, is never regarded as authority; such opinion decides the case as between the parties, but does not settle the law of the land. In consequence of this well established principle, the case of Fox v. Rootes, though most elaborately and ably argued at the bar, and most gravely considered by the court, was directed not to be reported; and such was the diversity of opinion among, the judges, the majority consisting on some points of one set of judges and on others of another, that they determined not even to deliver their opinions in court, but simply to embody in the decree, the points, on which the court, or a majority, were found to agree.

That case has been referred to in the argument of this, as establishing the general principle, that a person obtaining a judgment, and having a ca. sa. levied on the body of his debtor, who is duly discharged under the insolvent law, still has the benefit of the lien of his judgment, so as to overreach an incumbrance created by the debtor between the date of the judgment and the levy of the execution. I sat in Fox v. Rootes, and was one of “the majority of the court, who thought that, under the circumstances of the case, the creditor by decree, who had resorted to the ca. sa. and had pursued his debtor to insolvency, did not lose the lien of his prior decree:” and I will remember, that I c,ame to that opinion, not as the result of any general principle, but as the result of the particular circumstances of the case. Indeed, this is manifest from the language of the decree itself, as has been shewn by my brother Carr. Whether the circumstances relied on by the majority of the court, justified their opinion on that point, it is not material to inquire, there being no such circumstances in the case now before us. We have now nothing to decide but the general principle; and I am clearly of opinion, as I was when I decided *Fox v. Rootes, that, in the absence of particular circumstances, a creditor who resorts to his ca. sa. and pursues his debtor until he is discharged under the insolvent act, loses the lien of his decree or judgment; that particular lien being merged m the superiour lien of the ca. sa. executed, and being forever discharged by the ca. sa. having had its full effect.

T, therefore, think the decree before us was right, as to the main point in the cause. And X concur with judge Carr, for the reasons given By him, as to the propriety of the dismission of the bill. If there is really any probability that a surplus will remain after the satisfaction of the creditors under the deeds of trust, the appellants will be at liberty, notwithstanding the dismission of this bill, to institute a new suit for the purpose of reaching it. I am for affirming the decree.

TDCKLR, P.

I concur with my brethren on the main point; but I am of opinion that the decree is erroneous in dismissing the bill as to the appellees; because, though they have preference, yet this being, in effect, a bill by a judgment creditor to redeem prior incumbrances, they should be a party to the decree. To sell an equity of redemption at public auction, subject to a deed of trust, the amount due upon which cannot be known, as the original debt may have been reduced by payments, is inadmissible. Whoever purchases must purchase at hazard, and of course the sale must always be a sacrifice; ruinous to the mortgagor, or perhaps to other creditors. In such cases, it is therefore always proper that the junior incumbrancer should convene all the prior incumbrancers before the court. Gilm. 133. There is a further reason, I think: as a general rule, sales ought not to be made where the legal title does not pass by the sale. Purchasers of equities always purchase at risque, and sales at risque always tend to sacrifices. To decree a sale at risque would seem, indeed, at variance with the principles of the court, though I will not say no case can occur in *which it would be permitted. My opinion is that the decree should be reversed, with the intimation however of the opinion of this court, that the cestui que trust creditors have a preferable right to payment.

Decree affirmed. 
      
      In the following cases Box v. Rootes is cited: Coutts v. Walker, 2 Leigh 283; Claiborne v. Gross, 7 Leigh 345: Stuart v. Hamilton, 8 Leigh 508, 509; Taylor v. Spindle, 2 Gratt. 68, 70; foot-note to McClung v. Beirne, 10 Leigh 394.
     