
    *Lipscombe v. Rogers & als.
    March Term, 1871,
    Richmond.
    Judicial Sales — Liens—Priorities.—R is entitled to a decree for a sale of real estate to pay a debt due to him, secured by a deed of trust upon the property; but before the decree is made, T, by petition in the cause, alleges that he holds a prior lien upon the property(to secure a debt due him; and he exhibits his bond and deed of trust. It is error to' decree a sale of the property, and that the proceeds of sale be brought in court, before passing upon the claim of T, and ascertaining whether or not it is a valid prior lien, and the amount thereof.
    This is the sequel of the case of Alley & als. v. Rogers, reported in ■ 19 Gratt. 366. After the cause went back, Charles J. Terrell filed his petition in it, alleging that he held a prior lien upon a part of the property upon which Rogers held a lien, to secure a debt of 35624, with interest from February, 1854, subject to a credit of $100; and he exhibited the bond and deed of trust; and asked to be satisfied out of the proceeds of the property.
    Before passing upon the claim of Terrell, the court, on the 15th of May, 1869, made a decree, by which it was provided that unless the defendants, or some one for them, do, within sixty days from that date, pay into the Planters’ National Bank of Richmond, to the credit of the cause, the sum of $5,113 55, with legal 'interest on $3,672 02, part, thereof, from the 27th day of February, 1868, until paid, that being- the amount of principal money and interest remaining due to Rogers on account of the debt secured to him by the trust deed of the 24th of May, 1859, from B. W. Green to Williams and Young, then commissioners named, ^should proceed to sell the several lots of land which were conveyed to the said trustees by said deed, except such as had been released upon terms stated in the decree; and after paying the expenses of sale, to pay the cash proceeds into the Planters’ Bank to the credit of the cause, &c. ; and make report, &c. The court reserved until the coming in of the report, the consideration of the questions whether and to what extent the petitioner Terrell was entitled to priority of satisfaction out of said proceeds of sale, on account of the claim asserted in his petition, &c. From this decree Adeline T. Eipscombe, by Martin M. Eipscombe, her husband, and the said Martin M. Eipscombe in his own right, applied to this court for an appeal; which was allowed.
    Eyons, for the appellants.
    Page & Maury, for'the appellee.
    
      
       Judicial Sales — Liens—Priorities. — The rule laid down in-the head-note that it is an error to decree the sale of land before taking an account of the liens and their respective priorities seems to be too well settled by a long line of authorities to be controverted.
      See principal case cited as authority in Moran v. Brent, 25 Gratt. 106; Horton v. Bond, 28 Gratt. 822; Alexander v. Howe, 85 Va. 200, 7 S. E. Rep. 248.
      See also, Iaege v. Bossieux, 15 Gratt. 83, 76 Am. Dec. 189; foot-note to Crawford v. Weller, 23 Gratt. 835, where many authorities on the point are collected; and see, generally, monographic note on “Judicial Sales.”
    
   MONCURE, P.,

delivered the opinion of the court.

The court is of opinion, that in the decree appealed from in this case, there is nothing inconsistent with anything in the opinion or decree of this court in Alley, &c. v. Rogers, 19 Gratt. 366. This court did not decide in that case the question whether it was necessary to sell the whole of the land conveyed by the deed of trust of the 24th day of May, 1859, not released by the deed of the 28th of August, 1860, in the proceedings mentioned, for the purpose of satisfying the said deed of trust; and it would have been premature, and therefore improper, so to have done; the Circuit court not having decided that question, which indeed it was unnecessary to decide, in the view taken of the case by that court. But, when the decree of this court was entered as the decree of that court, it became necessary for that court to consider and decide the question; and it accordingly decided it in the decree *appealed from. The court is of opinion that there is no error in that decision.

But the court is further of opinion, that no decree for such sale should be made until it is ascertained whether Charles J. Terrell has a prior lien to that of the appellee B. R. Rogers, on a part of the said land, as claimed by the said Terrell in his petition filed in this case, and what is the amount of that lien ; and, therefore, that the said decree, appealed from, was premature in directing such a sale, and must be reversed on that ground; according to the cases (referred to by the counsel of the appellee) of Cole’s adm’r v. McRae, 6 Rand. 644; Buchanan v. Clark, &c., 10 Gratt. 165, 182; Jage, &c. v. Bossieux, 15 Id. 84, 103; Smith, &c. v. Flint, &c., 6 Gratt. 40. But the court, in remanding the cause for further proceedings, deems it unnecessary, if not premature, to give any directions for the appointment of a receiver, as is urged by the counsel of the said appellee Rogers, on the authority of the case above cited from 6 Rand. 644; it being perfectly competent for the Circuit court, on consideration of the pleadings and proofs in the cause, and of any other proofs which may be introduced by any party, to appoint a receiver whenever it shall by that court be deemed proper to do so.

The court is therefore of opinion, that the said decree appealed from is erroneous in the respect and for the reason aforesaid, and doth decree and order that the same be reversed and annulled; and that the appel-lee B. R. Rogers do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is ordered that the cause be remanded to the said Circuit court for further proceedings to be had therein.

Which is ordered to be certified to the said Circuit court.

Decree reversed.  