
    Tiernans v. Schley & Shroeder.
    February, 1830.
    (Absent CabklIi and CoatjTeli, J.)
    Foreign Attachment — Discharge of — Appearance of Defendant. — in a foreign attachment in chancery against an absent debtor, laid on personalty in hands of garnishees, and on lands claimed by Iiersons under conveyance of absent debtor, the question being, whether conveyance gave vendees priority over rights of attaching creditors, or attachment gave these priority oyer vendees, the absent debtor was, upon motion of attaching creditors themselves, who waived demand of security from him, allowed to appear and file his answer, without giving security to abide and perform the decree:
    Umm, the attachment was thereby discharged, and the attaching creditors could, thenceforth, only prosecute their claim against their debtor, person al ly.
    Henry R. Simmerman of Wythe county Virginia, being indebted to Luke and Charles Tiernan of Baltimore, Charles Tiernan came to Wythe in the summer of 1821, for the purpose of obtaining payment of or security for the debt; and an arrangement was made between them, that Sim-merman should sell and convey to L. & C. Tiernan a tract of 287 acres of land near Kvansham in Wythe, in satisfaction of the debt, which was 8,500 dollars, upon condition, however, that Luke Tiernan should approve and ratify the arrangement. In execution of this arrangement, Simmerman and wife executed a deed of bargain and sale, ’“’conveying the land to L. & C. Tiernan in fee: the deed was dated the 7th June 1821, and was regularly acknowledged before two justices of Wythe, by Simmerman, and by his wife on privy examination, and their acknowledgment certified by the justices, in order that it might be recorded: and this deed, thus perfected, was confided to the private care of John P. Matthews, the clerk of the county court of Wythe, to be kept by him till Luke Tiernan’s approbation and ratification of the arrangement, or dissent from it, should be signified to him; and if and when he should approve and ratify it, and signify the same to Mr. Matthews, then the contract was to be consummate, and Matthews was to act officially, and to record the deed; and if he should dissent from it, the deed was to be returned to Simmerman or destroyed. No time was appointed, within which Luke Tiernan’s assent or dissent from the contract, should be signified to Matthews; it was, however, expected to be made known within a short time. Luke Tiernan hesitated some months: at length, on the 15th December 1821, he addressed a letter to Matthews, wherein he gave his assent to the contract, and directed him to record the deed,, and to deliver the original to the bearer of the letter. This letter was received by Matthews on the 17th February 1822, and thereupon he recorded the deed in his office.
    But before Luke Tiernan had agreed to accept the deed, in October 1821, Schley & Shroeder of Baltimore, creditors of Sim-merman, exhibited their bill in the supe-riour court of chancery' of Wythe, against Simmerman, L. & C. Tiernan and divers others, setting forth the debt due by Sim-merman to them, and that he had recently removed from Virginia and was now a nonresident of this state; and stating, inter alia, the circumstances touchin'g the deed executed by Simmerman to L- & C. Tiernan of the 7th June preceding; insisting, that that-deed, not having as yet been accepted by the purchasers, was still inoperative to pass the subject; and praying to attach the land mentioned in the deed (as well as other property of Simmerman in the *hands of other defendants) to answer their claim, under the 1st section of the statute concerning foreign attachments in chancery, as amended at the re-visal of 1819. 1 Rev. Code, ch. 123, 'i 1, p. 474.
    The Tiernans, in their answer to the bill, insisted, that the deed they claimed under, gave them a right to the land it conveyed, in preference to the attaching creditors.
    And thus the question between the attaching creditors Schley & Shroeder and the Tiernans, being, whether or no, under the circumstances, the'right of the former, to have satisfaction out of the land in question, attached to the land by force of their attachment, before the title thereof was vested in the Tiernans by the deed of June 1821; the absent debtor, Simmerman, on the 27th May 1823, appeared, and “upon the motion and by consent of the plaintiffs, who waved all exceptions to the filing of his answer,’’ was permitted by the court to file his answer, without giving any security for performing the decree according to the 2d section of the statute.
    A long litigation ensued in the court of chancery, concerning other matters as well as those above stated; other matters not necessary to be here stated, since they did not at all affect the point on which alone the cause eventually turned in this court.
    At the hearing before the chancellor, the counsel for the Tiernans, insisted, that the order of May 1823, made by consent and at the instance of the attaching creditors, whereby the absent debtor Simmerman was permitted to appear and file his answer, without giving security to perform the decree, was an absolute discharge of their attachment, by virtue of which alone they could pretend to any preference over the rights of the Tiernans under the deed of June 1821, or indeed to any lien whatever on the property of the absent debtor; and this point they alleged was preliminary to, and precluded the necessity of, all further inquiry. But the chancellor was of a different opinion; and considering the attachment as yet in full force, he held that the rights of *the attaching creditors, by virtue of that process, attached to the land conveyed to the Tiernans, before the conveyance to them became operative, that is, before the deed was assented to and accepted by Luke Tiernan; and, therefore, he held the land in question subject to the claim of the attaching creditors, and decreed that it should be sold to satisfy their demand against Simmerman. The Tiernans appealed to this court.
    The cause was argued here by Wickham and Leigh for the appellants, and Stanard and Johnson for the appellees,
    on all the points (and there were many) presented by the record. But the only point considered and decided by the court was the preliminary question made in the court of chancery, above mentioned, viz. Whether the permission of the absent debtor, Simmer-man, to appear and answer, without giving security to perform the decree, on the motion and by consent of the attaching creditors, was not a discharge of their attachment? For if it was, Schley & Shroeder had no longer any ground to stand on, as against the Tiernans, or any garnishee, or any specific property of the debtor; they had only a right to proceed against the debtor himself, personally.
    
      
      Foreign Attachment — Discharge of — Appearance of Defendant. — In Kelso v. Blackburn, 3 Leigh 811, it is said: “It is admitted, on all hands, that an appearance discharges the attachment, where the property attached is personal. Surely, the same effect follows where land is attached, both from the reason of the case, and the care with which the land of an absentee is protected from sale, while there is any personal fund in the power of the court. And this very point was decided in Tiermans v Schley. etc.. 2 Leigh 25. In that case, the appearance of the absent defendant was what, in the judgment of this court, changed the nature of the suit, and discharged the land.”
      See further, monographic note on ‘Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
   BROOKE, P.,

delivered the opinion of the court. The only question in this case, which it is necessary to decide, is, Whether the appearance of the absent defendant Simmerman, and the filing of his answer without giving security to perform the decree, at the instance and on the motion of the plaintiffs, was not a discharge of their attachment on the land in controversy? This question will be more satisfactorily settled by reference to the statutes on the same subject, preceding the revised statute of 1819, under which the attachment issued. By the act of 1744, ch. 1, 5 Hen. stat. at large, p. 220, the absent defendant was permitted to appear, plead or file his answer as the case might be, without giving security to perform the decree; after which the proceedings against him were in the ordinary course of the court; and *the object of the act being only to compel him to appear and defend the suit, the attachment as to the property was thereby discharged. It was by the act of October 1777, ch. 15, 9 Id. p. 396, establishing the high court of chancery (which incorporated, substantially, the above mentioned act of 1744, and transferred the jurisdiction to that court) that security was first required of the absent defendant, when he appeared and defended the suit. That provision is re-enacted in the revised statute of 1819. If the defendant Simmerman had given the security required by it, there can be no doubt the attached property would have been discharged ; and the plaintiffs having dispensed with that security, can be in no better condition than if it had been given,

The decree is, therefore, reversed, and the bill dismissed as to the appellants, with costs.  