
    *Buchanan v. Clark & als.
    July Term, 1853,
    Lewisburg.
    3. Bonds — Joint Obligors — Case at Bar. — G, B and K were principal obligors in a bond. B and K put money in the hands of G to pay the bond; and he bound himself to pay it, but failed to do so, and became insolvent. A judgment was recovered on the bond against the three, and B paid it. After the judgment G conveyed land to S to secure a debt due to him and another debt due to C. Upon a bill by B and K against S and C to subject the land conveyed in the deed to S to satisfy the debt B had paid, S stated in his answer that prior to the judgment he held the bond of G, B and K, and that he had delivered it up upon receiving the bond of G with the deed to secure it; but there was no proof of this. C in his answer, stated that he had before the judgment bought one-half the land from G, and made payments upon it; and had afterwards given it up and. taken the bond of G for the amount, and taken the deed of trust to secure it. Held:
    1. Same — 5ame—Agreement among Obligors as to Liability. — It was competent for G, B and K to contract that as between themselves, G should be the principal and B and K his sureties; and that this had been done.
    2. Same — Same-Judgment—Payment by One Obligor —Subrogation.—That as between B and K and G, the former were entitled to be subrogated to the lien of the judgment creditor upon the land; and that they were equally entitled as against purchasers from G who did not show a better equity.
    
      3.Same — Equities—Merger—Case at Bar. — That the equity set up by S was not proved; and that the equity of 0, if he had any, was merged in the deed of trust.
    2. Consolidation of Causes — Consent of Parties — Case at Bar. — The "bill alleged that G was seized of the several tracts specified in certain deeds exhibited; and that the deed of trust covered all the land; hut this seemed to be a mistake. The record states that the cause came on to he heard hy consent, and an interlocutory decree was entered directing a sale of the land in the hill mentioned. At a subsequent day of the same term it was suggested that there was another suit pending in the same court hy another plaintiff against G and others, to subject the same land to sale; and hy consent of parties the suits were amalgamated so far as to he heard together. And hy like consent it was ordered that the decree for the sale of the land in the first suit should he considered as having been pronounced in both cases. A sale was made and the executor of S became the purchaser, and there being no exception to the report, it was confirmed. Held;
    **. Same — Same—Effect on Decree. — The consent of the parties merely cured any irregularities as to the time of bringing on the first cause for hearing, the amalgamating the two causes, and in making the decree as entered in the first cause, a decree in both cases without a formal entry in each case. The consent did not extend to the decree directing the sale of the land, or cure any error therein.
    2. Judicial Sales — Priorities.;—It was error to decree a sale of the land before the priorities of the parties were adjusted; and until it had been ascertained what portion of the lands appearing by the deeds filed with the bill to belong to the debtor, was included in the deed of trust.
    3. Same — Order of Selling Land — Case at Bar. — The land not included in the deed of trust should have been first sold, and applied to the prior judgment; and if insufficient to discharge it, then the lands included in the deed of trust should have been sold, and so much of the proceeds thereof as, with the proceeds of the land not conveyed, amount to a moiety of the proceeds of all the said lands, should have been applied if necessary to the satisfaction of said judgment.
    4. Same — Proceeds—Case at Bar. — The proceeds of the other moiety of the land should have been applied to satisfy the second judgment if it had priority over the deed of trust.
    5. Same — Reversal of Decree — Effect on Purchaser — Case at Bar. — The final decree gave the proceeds of all the land to the cestuis aue trust In the deed, suin' ect to satisfy the debt in the second suit, and directed a conveyance to the purchaser. It does not appear what the lands not included in the deed produced. Held: As the appeal brought up the whole decree, and suspended its execution, the claim of the purchaser must fall with the reversal of the decree, the purchaser not "being a stranger to the controversy purchasing at a judicial sale, but the party chiefly benefited by the proceedings complained of.
    In December 1840 George B. Keys and Win. R. Buchanan filed their bill in the Circuit court of Washington county against Isaac C. Grant and others, for the purpose of subjecting certain lands to satisfy a judgment which had been recovered against them and Grant by James Cox. They charge in their bill that in the summer of 1839 the plaintiffs and Grant formed a partnership for the purchase of cattle for the eastern market; and that amongst other purchases they bought *the cattle of James Cox, for which they executed to him their bond for thirteen hundred dollars. That the cattle purchased by them were sold; and thereafter Grant was supplied with money arising from the sales, for the purpose of paying the bond to Cox, as well as all other partnership debts. That being thus supplied with funds, he made an agreement with the plaintiffs, by which he bound himself to pay all the said partnership debts; and from that time it was understood that the plaintiffs should be bound only as his security for said debts. That Grant not paying the debt to Cox, an action was brought in the Circuit court of Washington against him and the plaintiffs, on said bond; and a judgment was recovered thereon by Cox in the spring of 1840, against all the parties. That Grant has become insolvent; and plaintiffs had executed a forthcoming bond, on which execution was awarded at the fall term of the court; which they would be compelled to pay.
    They further charge, that at the time the judgment was rendered in the spring of 1840, Grant owned several tracts of land, as was shown by several deeds to him, which they exhibited with their bill. That in September 1840 Grant had executed a deed by which he conveyed all the land owned by him at the date of the judgment, to Francis Smith, in trust to secure a debt of five hundred dollars due to Smith, and to secure to David C. Clark the payment of a debt of one thousand six hundred and six dollars, lor which John B. Clark was the surety. They insist that the judgment is a lien upon these lands, and that they are entitled to be substituted to the rights of the judgment creditor Cox, and to subject the lands for the amount they shall be compelled to pay. And making Grant, Smith and the two Clarks parties defendants, they pray for a decree against Grant for the amount they shall be compelled to pay to Cox; and that the *lands held by Grant at the time the judgment was recovered and since conveyed to Smith, may be subjected to satisfy the decree.
    The deeds exhibited with the bill showed the conveyance to Grant of six separate tracts of land; and the deed of trust from Grant to Smith seems to convey but four of these tracts. By an endorsement on this deed dated the 12th October 1840, Clark assigned his interest in this deed to Findley & Mitchell and Francis Smith.
    Smith answered the bill. He says that the five hundred dollars secured to him by the deed from Grant to himself, was the balance of a debt of one thousand dollars which the plaintiffs and Grant had owed him; and five hundred dollars of it having' been paid, he took Grant’s note with David C. and John B. Clark as his sureties, for the balance, to be secured by the deed of trust; and gave up the note in which the plaintiffs were bound.
    David C. Clark answered. He insisted that upon the case made by the bill the plaintiffs were not entitled to be substituted to the lien of Cox’s judgment. He says that in 1838, by a written contract he purchased from the defendant Grant his lands for two thousand six hundred dollars; upon which contract he paid Grant seven hundred and eighty six dollars and seventeen cents. That on the 15th November 1839 he made a second agreement with Grant by which a partnership was formed by them in the tract of land aforesaid, valued in the contract at two thousand dollars. That before and after this last agreement he made various payments on account of said land, amounting in the whole to one thousand six hundred and six dollars. That matters thus stood until September 1840; Grant living on the land and being the managing partner in a great measure. That the partnership was then dissolved, on the terms that *Grant should repay him the one thousand six hundred and six dollars which he had paid for the land; he reserving a lien thereon by deed of trust to secure him.
    The first agreement referred to by Clark in his answer bears date November 24th, 1838; and by it Grant sells to Clark the lands owned by Grant adjoining Clark for two thousand five hundred dollars. The second agreement bears date the 15th of October 1839, and recites, that “Whereas said Grant has a tract of land on which he now lives, containing about seven hundred acres more or less, and being more than he can cultivate or wishes to possess, values the same at two thousand dollars, and agrees that David C. Clark shall have one-half of the whole at one thousand dollars, which said Clark agrees to give, and for which he has paid, the receipt for which is hereby acknowledged by said Grant.” The agreement for a. partnership was then set out; and it is provided that upon a dissolution of the partnership, one was to take the laud at the price which might be agreed between them; and if Grant took it, he was to pay to Clark the one thousand dollars he had paid, and as much more as it should be agreed he should give for the land.
    The defendant filed with his answer four receipts of Grant; one dated November 27th, 1838, for seven hundred and eighty-six dollars and seventeen cents, purporting to be in payment of land sold him. The second was dated November 25th, 1839, for three hundred dollars, “towards my half of the land on which I now live;” and the two others were dated, one July 1st, 1840, and the other April 3d, 1840; the first, for one hundred and fifty dollars, and the second, for one hundred and fifty-six dollars, in the same terms. The receipts for the balance of the sum of one thousand six hundred and six dollars, he stated in his answer had been accidentally lost or mislaid.
    The plaintiffs proved that Grant admitted he owed *the debt to Cox and had received the money to pay it; and that he had endeavored to obtain other security which would be satisfactory to Cox, and thus to release the plaintiffs, but he failed to obtain it. And they exhibited his written undertaking, dated May 16th, 1840, to settle all the unpaid debts of the partnership contracted for cattle during the year 1839. They also proved by Charles C. Gibson, a deputy sheriff of Washington countj’, that a few days after the expiration of the May term 1840 of the Circuit court of Washington county, a fieri facias was put into his hands, which was in the name of James Cox against Grant and the plaintiffs for thirteen hundred dollars, besides interest and costs; that the parties gave a forthcoming bond, which was forfeited, and that execution was awarded upon it. That a fieri facias was issued, upon which Buchanan paid seven hundred and forty-six dollars and eight cents, on the 28th December 1840. That in March 1841 a ca. sa. was issued, upon which the plaintiff were taken into custody, and that Buchanan made an arrangement with Gibson which satisfied the balance due on the judgment, amounting to seven hundred and fifty-seven dollars and twenty-five cents.
    In October 1842 the court made a decree, in which it is stated that the cause came on by consent of parties to be heard upon the bill, &c., whereupon, it is adjudged,' &c., that Connally R. Trigg, who is appointed a commissioner for that purpose, do sell the land in the bill mentioned, &c., and make report to the court.
    It appears that there was another cause pending in the same court in the name of James Cox against Grant and others; and at the same term in which the foregoing decrees was made, an order was made in both causes, that it appearing to the court that the plaintiffs in these suits are attempting to subject the same lands, *by consent of the parties it is ordered that the suits be amalgamated so far as to come on to be heard together. And by like consent it is further adjudged, &c., that the decree pronounced in the last cause during the present term, be considered as having been pronounced in both causes.
    The two causes came on to be heard together on the 26th of May 1846, as the decree says upon the report of Connally R. Trigg, the commissioner appointed to sell the land, though that report is not in the record. It is however confirmed, and it was decreed that Trigg, who was appointed a commissioner for the purpose, do convey the said lands so sold by him to Wyndham Robertson executor of Rrancis Smith deceased, with covenants of special warranty. That Cox do recover against Grant the sum of two hundred dollars, the debt in the bill mentioned, with interest thereon from the 28th of July 1837 till paid, and his costs both in his action at law and his present suit, to be paid by Wyndham Robertson executor of Rrancis Smith, out of the proceeds of the land sold under the former order in these causes. That the bill of the plaintiffs Keys and Buchanan be dismissed with costs as to the defendants Robertson executor of Smith, and the Clarks; and that the said Robertson as executor of Smith, do retain the residue of the purchase money aforesaid of the said land first in extinguishment of the sum of five hundred dollars, with its interest secured to said Smith by the deed of trust in the pleadings mentioned, and the residue to be applied to the payment of the debt transferred to said Smith and Rindley and Mitchell by David C. Clark. And that Grant pay to the plaintiffs, &c.
    Rrom this decree Buchanan applied to this court for an appeal, which was allowed.
    J. W. Sheffey, for the appellant.
    B. R. Johnston, for the appellees.
    
      
      Bonds — Joint Obligors — Agreement among the Obli-gors as to the Liability.— Though as to a creditor, parties, e. g. partners, may be equally bound as to a certain debt, and though no understanding and agreement as between themselves can change the relation so as to impair the creditor’s rights, yet it is also true that as between themselves the parties may assume the relation of principal and sureties. The principal case was cited in approbation of this point in Moore v. Holt, 10 Gratt. 293; Barnes v. Boyers, 34 W. Va. 306, 12 S. E. Rep. 709. See also, Johnson v. Young, 20 W. Va. 658, 664. 666.
      Judgmentis obtained on a note. The accommodation indorser or surety of the note then purchases real estate from the principal debtor who retains a lien for the purchase money. By the express terms of the contract, the surety assumes the payment of the judgment in part discharge of the purchase money for the land. It was held that, by this arrangement, the relation of the parties inter se were changed; that the surety became the real debtor, and vice versa, and that the original debtor had the right to require that the lien of the judgment should be enforced for his exoneration against the real debtor. Rhea v. Preston, 75 Va. 757, citing the principal case, and Schultz v. Hansbrough, 33 Gratt. 567, which itself cites the principal case as its authority.
    
    
      
       Subrogation — Partners.—In Sands v. Durham, 98 Va. 392, 36 S. E. Rep. 472, 6 Va. Law Reg. 248, it was held, that subrogation does not exist as between partners, where one partner, after dissolution, discharges a judgment against the firm out of his own funds. The court, in an opinion delivered by Judge Cardwell, said that the principal case {.Buchanan v. (flarJS) recognizes that partners ordinarily do not have the right of subrogation to the rights of the firm’s creditor holding a security for a debt of the firm paid by one of the partners out of his own means; and that the right of subrogation in the principal case was placed solely on the ground that the parties had expressly contracted that as between themselves, one of them should be principal and the other two his sureties. The court then, citing the principal case as its authority, lays down the broad rule that the doctrine of subrogation does not ordinarily apply as between copartners;' and that to entitle a partner, paying out of his private means debts against the firm, to be subrogated to the rights of the creditors whose debts he has so paid, the relation ordinarily existing between co-partners must have been changed by an agreement between them whereby they assume the relation of principal and surety.
      At the following spring term of the supreme court (March, 1901), a rehearing was granted in the case of Sands v. Durham, the decision of which is reported in 6 Va. Law Reg. 839, 3 Va. Sup. Ct. Rep. 189. The previous decision was reversed by a unanimous co art and the principle firmly laid down that subrogation does exist as between parties, where one partner after dissolution discharges a judgment against the firm out of his own funds.
      
      Judge "Whittle, in an ably-delivered opinion, reviews the Virginia cases showing that in no other jurisdiction has the doctrine of subrogation been more firmly adhered to or more liberally expounded to meet the exigencies of particular cases than in Virginia.
      As regards the principal case, Judge Whittle said: “It will be observed, the court was dealing with a case of ‘convention subrogation,’ and confined its decision to the case in hand without intimation as to whether the general doctrine of subrogation would or would not obtain among partners.” See also, on this special point, Wheatley v. Calhoun, 12 Leigh 264; 6Va. Law Reg. 253-257.
      On the general subject of subrogation in regard to sureties, see Powell v. White, 11 Leigh 309; Enders v. Brune, 4 Rand. 438; McClung v. Beirne, 10 Leigh 394; Watts v. Kinney, 3 Leigh 272, 23 Am. Dec. 266; Douglass v. Fagg, 8 Leigh 588; Edmunds v. Venable, 1 P. & H. 121; Robinson v. Sherman, 2 Gratt. 178, 44 Am. Dec. 381; Hill v. Manser, 11 Gratt. 533, and footnote', Kendrick v. Forney, 22 Gratt. 748, and foot-note; Barger v. Buckland, 28 Gratt. 850; Eidson v. Huff, 29 Gratt. 338; Cromer v. Cromer, 29 Gratt. 280; Robertson v. Trigg, 32 Gratt. 76; Harnsberger v. Yancey, 33 Gratt. 527, and foot-note; Dobyns v. Rawley, 76 Va. 537; Hanby v. Henritze, 85 Va. 177, 7 S. E. Rep. 204; Barton v. Brent, 87 Va. 385, 13 S. E. Rep. 29; Pace v. Pace. 95 Va. 792, 30 S. E. Rep. 361; foot-note to Tarr v. Ravenscroft, 12 Gratt. 642.
    
    
      
       Judicial Sales — Priorities. — See Lipscombe v. Rogers, 20 Gratt. 658, and foot-note; also, mono-graphic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
    
      
       Sale of Land Subject to Lien — Proceedings against Purchaser. — In Miller v. Holland, 84 Va. 656, 5 S. E. Rep. 701, the principal case was cited among others as authorizing the proposition that when the mortgagor of land sells, at different times, portions of the mortgaged premises, the land retained by the mortgagor must first be subjected to the satisfaction of the mortgage lien, and, if this is not sufficient, the lands aliened are liable in the inverse order of their alienation. See also, on this point, Alley v. Rogers, 19 Gratt. 366, and foot-note, where there is a collection of authorities in point.
    
    
      
       Judicial Sales — Validity of — The Purchaser Hust Be a Party. — in Londons v. Echols, 17 Gratt. 19, it was said: “It would be contrary to natural justice, and to the practice which has prevailed in like cases, to conclude the purchaser, whose purchase has been confirmed and consummated by conveyance of the title, by a decision of these questions (i. e. as to validity of sale, etc.), before he has been brought before the court. The purchaser was brought before the court by supplemental proceedings in Pierce's Adm’rs v. Trigg’s Heirs, 10 Leigh 406, and in Parker v. McCoy, 10 Gratt. 594, as well as in Hughes and Wife v. Johnston, 12 Gratt. 479, before cited; while, in Huston’s Adm’r v. Cantril, 11 Leigh 136, Cocke’s Adm’r v. Gilpin, 1 Rob. R. 26, and Buchanan v. Clark, 10 Gratt. 164, there was no necessity to resort to supplemental proceedings, because the purchaser was already a party in the canse. See also, Bank United States v. Ritchie, 8 Peters R. 128; Colclough v. Sterum et al., 3 Bligh P. Cas. 181; Coger v. Coger, 2 Dana's R. 270; McKee’s Heirs v. Hann, 9 Dana’s R. 526; Parker’s Heirs v. Anderson’s Heirs, 5 Monr. R. 445.”
      See also, Dunfee v. Childs, 45 W. Va. 165, 30 S. E. Rep. 106, where the principal case is cited, and foot-note to Londons v. Echols, 17 Gratt. 15, where there is a collection of authorities in point.
      Appellate Practice — Secondary Evidence — No Objec= tion In Lower Court. — See the principal case cited in foot-note to Atkins v. Lewis, 14 Gratt. 30.
    
   *AGBEN, J.

This is a bill filed by the appellant and George B. Keys, to be subrogated to the lien of a judgment obtained against them and Isaac C. Grant by James Cox, and which it appears has been paid by the appellant. The bill avers that the complainants and Isaac C. Grant having formed a partnership in the summer of 1839, for the purchase of cattle for market, on the 25th of July 1839 executed to James Cox their joint and several single bill for one thousand three hundred dollars, the price of cattle purchased from him. That all the cattle being sold by them, Grant thereafter was supplied with funds resulting from the sales to pay the debts of the firm, including the debt to Cox; that he agreed and bound himself to pay the debts, and that it was understood from that time that the other parties were to be bound only as the securities of Grant in relation to the debts. Grant having failed to discharge the debt, the creditor sued and obtained judgment against all the parties to the note; and execution having issued, the amount was paid by the appellant. The bill avers that the judgment on the note was recovered against Grant and the complainants at the spring term of the Circuit court for Washington county in the year 1840. That on the 19th of September 1840 Grant executed to Rrancis Smith, as trustee for the benefit of John B. and David C. Clark, a deed of trust covering all the land owned by him. That shortly after-wards it was ascertained he was in insolvent circumstances, and that he has since taken the oath of insolvency.

The allegation that Grant was supplied with the funds to pay the debt to Cox is not denied by Grant in his answer; and that fact and the agreement to pay the debts, are fully proved by evidence of his admissions and by his agreement of the 16th May 1840, filed as an exhibit in the cause. The recovery of the judgment at the time alleged in the bill is neither *admitted or denied in the answers, and the complainants have neglected to file a copy. That it was prior in date to the deed of trust to F. Smith seems not to have been controverted in the court below, or in argument here; still the record should contain some evidence to show that it was recovered before the execution of the deed of trust. That proof, it seems to me, is furnished by the deposition of Chas. C. Gibson, the deputy sheriff, who deposes that a few days after the May term 1840 of the Circuit court for Washington county, an execution for the debt was placed in his hands by the clerk of said county, upon which he took a forthcoming bond, dated the 22d of June 1840. This, it is true, is secondary evidence, but the deposition is not excepted to for that cause, though so much of it as details the statements of the complainants in their own favor, was excepted to.

Conceding the judgment to be prior in point of time to the deed of trust, it is contended that the debt was the individual debt of each of the partners; that in paying it the complainants have merely paid their own debt, and such payment gives them no right to the application of the principle of subrogation as against a subsequent incum-brancer. As between the partners and the creditor they were all equally bound; and no understanding and agreement as between themselves, could change that relation so as to impair his rights. But there was nothing in that relation which would prevent the parties as between themselves, from assuming the relation of principal and securities. Grant agreed to pay the debt upon being furnished with the means; the funds were supplied, but he failed to apply them as he agreed to do. He admitted that he owed the debt himself, and by the memorandum signed by him, dated the 16th of May 1840, he bound himself to settle the unpaid debts of the firm contracted for cattle during the year 1839, and the *costs incurred in collecting them. As between themselves, he stood in the position of principal primarily liable for the debt, and his copart-ners as his sureties. After they had complied with their engagement by supplying Grant with the funds to pay off the debts, upon his undertaking to discharge them, the debts became his, and they should have been discharged by him ; for in substance though not in form the money was due from him alone. If the property had remained the property of Grant, there can be no doubt that a court of equity, in view of his express undertaking to treat the debt as his own and discharge his copartners therefrom, would have held him liable as principal debtor, and substituted them, if compelled to pay his debt, to the lien of the creditor’s judgment on his property. And this equity of the complainants could not be impaired by a subsequent transaction of Grant with third persons, to which the complainants were strangers. Although the judgment is in fact extinguished by payment, yet it is kept alive in contemplation of equity for the benefit of the surety. Bank United States v. Winston’s ex’or, 2 Brock. R. 254; Enders v. Brune, 4 Rand. 438; Powell v. White, 11 Leigh 309; McClung v. Beirne, 10 Leigh 394; Robinson v. Sherman, 2 Gratt. 178; Leake v. Ferguson, 2 Gratt. 419; Watts v. Kinney, 3 Leigh 272.

I do not think, therefore, that there is an3thing in the objection that the debt when contracted was a partnership debt, and that with respect to the creditor it retained its original character. As between themselves they occupied the relation of principal and securities; and the judgment being prior to the deed of trust, they are entitled to priority over it, unless the creditors secured by the deed can show a superior equity. This the defendants by their answers have attempted to make out. The deed of trust was given to secure a debt of one thousand six hundred and six *dollars to David C. Clark, and to secure D. C. Clark and John B. Clark, the securities of Grant in a note that day executed to Smith, the trustee, for five hundred dollars, with interest from the 1st of December 1837. Smith in his answer avers that this five hundred dollars was part of a sum of one thousand dollars obtained long before the date of the deed of trust, from the said Smith by the complainants and the said Grant, for which they gave their note, on which five hundred dollars had been paid; and that the one thousand dollar note, with the names of complainants thereto, was given up to Grant on his giving the Clarks and the deed of trust as security in the place of the complainants.

These allegations are not responsive to any of the charges in the bill, and are entirely unsupported by evidence. It is therefore unnecessary to consider what would be their effect on the rights of the parties if made out by proof.

The answers of Grant and David C. Clark attempt to show how the debt of one thousand six hundred and six dollars, secured by the deed of trust to David C. Clark, originated. The account given of the alleged purchase of the whole land by David C. Clark in 1838 at the price of two thousand five hundred dollars; the subsequent partnership with Grant at which the land was valued at two thousand dollars; and the subsequent arrangement by which the partnership was dissolved, and Grant became a debtor in the sum of one thousand six hundred and six dollars, is not very intelligible, and the documentary evidence filed does not throw much light on the transaction.

By the agreement of November 24th, 1838, Clark became the purchaser of the lands air two thousand five hundred dollars, and paid seven’hundred and eighty-six dollars and seventeen cents towards the price on the 27th November 1838. On the 15th of ^October 1839, an agreement was made between them, which recited that Grant had a tract of land on which he then lived, containing 700 acres, which he valued at two thousand dollars; and he agreed to let Clark have one-half at one thousand dollars, which he had paid. It does not appear what had become of the first sale of the whole to Clark at two thousand five hundred dollars. It is not alleged that there was an express rescission, but it is left to implication that the second agreement was understood to be a rescission: nór is any reason given why after a sale of the land at two thousand five hundred dollars and payment of part of the purchase money, it should be taken back and the purchaser permitted to take one-half of it at one thousand dollars. ' The receipts thereafter given tend to render the transaction still more obscure; for they purport to be given for money received in payment of Grant’s half of the land; though it does not appear that after the 15th of October 1839 there was any contract between them by which Grant sold to Clark the half of the land retained by him. Whatever may have been the nature of the dealings between these parties, there is nothing to show that they were of such a nature as to give Clark an equitable lien on the property. Under the most favorable aspect of the case for Clark, and regarding all the transactions as taking place fairly, there was no debt due to him until their final arrangement setting aside their previous contracts and converting his advances as a purchaser and partner into a debt secured by a deed of trust then executed upon the whole of the land: and it seems to me he cannot go behind his deed. Before that arrangement no debt was due to him. His case is not as strong as that of the vendor to whom there is an actual debt due, for which he has an implied lien, as to whom it has been decided that when he takes a mortgage for the purchase money his implied equitable lien for the *purchase money is superseded. Tayloe v. Adams, Gilm. 329; Little, &c. v. Brown, 2 Leigh 353. I think the creditors have not shown anything which entitles them to go behind the deed of trust; and the judgment being prior in date, the appellant, who by substitution is entitled to the benefit of it, must be first satisfied. But as the judgment only authorized a charge upon a moiety of the land, a moiety only can be subjected to sale for his benefit.

It has been supposed that the case of the Mutual Assurance Society v. Stanard, 4 Munf. 539, decides that where, after a judgment, the debtor conveys the whole of his land', and the deed provides for the sale thereof, the judgment is a charge upon the whole'proceeds, and must be first satisfied. In that case no such question seems to have been considered by the court. It may have been known that a moiety of the property would be sufficient to discharge the judgment ; and therefore the point ma3 not have been made. The main question in the cause was whether the judgment could relate to the first day of the term, so as to overreach intermediate incumbrances. Having decided that the trustees took in subordination to the judgment, it became necessary to determine what effect this would have upon the rights of the parties; and the court, without deciding the ■ general question whether the court of chancery could in all cases decree a sale of the land out and out, at the instance of the judgment creditor, directed that as the deed in that case had provided for a sale for the purposes of the trust, the whole should be sold by the trustees, who should in the first place pay the judgment out of the proceeds, and then proceed to the execution of the trust. The question as to the power of a court of chancery in such cases to sell out and out was not free from difficulty, as will appear from the remarks of Green, judge, in Blow v. Maynard, 2 Leigh 29, 57; *and the case of the Mutual Assurance Society v. Stanard is an authority for the exercise of the power where a subsequent deed has been executed providing for the sale; but cannot be considered an authority for the other proposition, because it does not appear that it was necessary to decide it, or that it was considered.

It was decided in Haley v. Williams, 1 Leigh 140, that a judgment is a lien on the whole of the debtor’s equitable estate; and the whole fund and not a moiety is to be applied to the judgment. In that case the legal title was in a trustee for the security of a debt having priority to the judgments. Green, judge, (whose opinion in this respect was concurred in’by the other judges, as a decree was entered conforming to it,) stated that a court of equity, upon the principle that equity follows the law, Would, if it were practicable, subject only a moiety; but that was impracticable; as equity could only enable the creditor to reach the equity of redemption by allowing him to redeem; which cannot be done with a proper regard to the rights of the mortgagee, without requiring him to redeem in toto, and not for a moiety only: And when redeemed, the judgment creditor has a right to stand in the shoes of the mortgagee, and to tack his judgment. The debtor would not ask to redeem without paying the judgment, as well as the mortgage debt, upon the principle that he who asks must do equity.

But where the legal estate is in the debtor at the date of the judgment, the creditor can only subject a moiety; and a subsequent alienation by the debtor cannot enlarge his rights. Lven where the alienation is fraudulent, equity merely removes the fraudulent conveyance out of his way. Stileman v. Ashdown, 2 Atk. R. 477; Ibid. 607; McNew v. Smith, 5 Gratt. 84. And there would seem to be no good reason why a bona fide *incumbrancer should be in a worse condition than a fraudulent alienee. In McClung v. Beirne, 10 Leigh 394, there had been successive alienations, and this court by its decree subjected an equity of redemption remaining in the debtor in a portion of the property, to be sold out and out, under the authority of Haley and Williams; and sales of the residue of the property were decreed to be made until a moiety was sold. It seems to me that this is all the complainants can claim by virtue of the judgment lien in the present case.

The bill averred that Grant at the time of the judgment was seized of the several tracts of land described in sundry conveyances, copies of which were filed: And furthermore, that the deed of trust covered all the land owned by Grant at the date of the judgment. By a comparison of the lands described in the copies of the deeds to Grant, with the tracts described in the deed of trust, it appears that some lands described in the deeds to Grant were not included in the deed of trust.

On the 2Sth October 1842, the cause came on to be heard by consent, and an interlocutory decree was entered directing a sale of the land in the bill mentioned. This I understand to be a consent of parties for the hearing of the causes at that time; but not a consent to the decree of sale: That was the decision of the court. At a subsequent day of the same term, it being suggested that there was another suit pending in favor of James Cox against Grant and others, in which the complainant Cox was attempting to subject the same land to sale, by consent of parties, the suits were amalgamated so far as to come on and be heard together. And by like consent, it was ordered that the decree for the sale of the land before recited, should be considered as having been pronounced in both cases. A sale was after-wards made, and there being no exception to the report, the same was confirmed; *and the court proceeded to pronounce upon the rights of the parties, and distribute the proceeds. In these proceedings there were errors not affected or cured by the consent of the parties. That consent merely cured any irregularities as to the time of bringing on the first cause for hearing, the amalgamating the two causes, and in making the decree as entered in the first case, a decree in both cases, without a formal entry in each case. The error, if any, in decreeing a sale as the cause then stood, was not cured. There should not have been a decree for a sale until the priorities of the parties were adjusted, and until it had been ascertained what portion of the lands appearing by copies of deeds filed with the bill to belong to the debtor were included in the deed of trust. The lands not so included should, according to the case of McClung v. Beirne, ubi supra, have been first sold and applied to the prior judgment; and if insufficient to pay it, then the lands embraced by the deed of trust should have been sold and so much of the proceeds thereof as would, with the proceeds of the lands not conveyed, amount to a moiety of the proceeds of all of said lands, should have been applied, if necessary, to the indemnity of the complainants. The record in the other suit, though heard with this case, is not before us. If as it would seem from the recitals in the decree, a judgment has been rendered for that claim, and it was entitled to priority over the deed of trust, it should have been satisfied out of the other moiety of the proceeds arising from a sale of the lands: And the residue should have gone to the benefit of the parties provided for in the trust deed. The decree gives the latter the proceeds of all the lands, whether embraced by the deed of trust or not, subject to the claim for the two hundred dollars. The lands seem to have been sold as one tract; and it cannot be ascertained from what appears in this record, what the Hands not embraced in the trust deed were worth. The sale was confirmed and a conveyance to the purchaser directed by the final decree; and as the appeal brings up the whole of the decree and suspended its execution, the claim of the purchaser must fall with the reversal of the decree, unless there was some reason to affirm it so far as it confirmed the sale and directed a conveyance. Nothing of that kind appears. On the contrary, the purchaser is the representative of the trustee in the deed of trust, who was the creditor in one of the debts provided for, and one of three assignees of the other debt. He does not occupy the position of a stranger to the controversy, who purchased at a judicial sale, but is the party chiefly benefited by the proceedings complained of. And as the appeal suspended the order confirming the sale and arrested its execution, the whole decree should be reversed and the sale set aside, and a resale directed, and an application of the proceeds made upon proper principles. I think the decree should be reversed.

The other judges concurred in the opinion of Allen, J.

The decree was as follows:

The court is of opinion, that the complainants in the court below, who, with Isaac C. Grant, were parties to the single bill executed to James Cox on the 25th July 1839 for one thousand three hundred dollars, ought, as between themselves and said Isaac C. Grant, to be regarded as the securities of said Isaac C. Grant, who, as to them, had, for valuable consideration, assumed the relation of principal, and was primarily liable for said debt. That said Isaac C. Grant having failed to discharge his co-ob-ligors from liability, and the creditor having-sued and obtained judgment, the complainants or either of them who have been ^'compelled to pay said judgment, are entitled to be substituted to the lien of said judgment on the real estate of said Isaac C. Grant. That as said judgment was prior in date to the deed of trust of the 19th day of September 1840 from said Isaac C. Grant to Francis Smith; and the parties claiming- under said deed of trust having failed to establish in themselves any equity to charge said lands prior to said deed of trust, or to show any reason why the equity of the complainants in the court below to be substituted to the lien of the judgment, should be postponed until the debts secured by the trust deed should be satisfied, the complainants are entitled to priority of satisfaction for the sums paid by them or either of them in discharge of said judgment, to the extent of a moiety of said land conveyed by the deed of trust, or the proceeds arising from the sale thereof, after applying to their satisfaction the proceeds arising from the sale of the other lands of said Grant not included in said deed of trust. That as according to the principles of the case of McClung v. Beirne, 10 Leigh 394, the lands retained by the debtor and not aliened should be first subjected to the relief of the subsequent bona fide alienees and incumbrancers, the whole proceeds of the land not embraced in the deed of trust should be first applied to the indemnity of the complainants and each of them, for tile amount paid by them or either of them in satisfaction of said judgment; and if not sufficient to indemnify them, and if the proceeds arising from the sale of such lands not included in said deed of trust, should not be equal to a moiety of all the lands of the debtor, then so much of the proceeds arising from the sale of the lands embraced in the deed of trust as will, when added to the proceeds of the other lands not so em-. braced, amount to a moiety of all the lands owned by the debtor, should be applied to the indemnify of the complainants or ^either of them. That out of the other moiety of the proceeds arising from the sale of lands of the debtor, the debt of two hundred dollars recovered by James Cox against said Grant with interest and costs, should be satisfied, if, as it would seem from the recital in the decree, a judgment has been recovered prior to the date of the deed of trust. But as the record in that case is not before this court, although the cases were heard together, no decision as to the rights of the parties as involved in that case, can be pronounced. The residue of the fund arising from a sale of all the lands as aforesaid after applying a moiety as aforesaid if required, to the indemnity of the complainants, and the other moiety thereof or so much as is required, to the payment of the two hundred dollars and interest and costs as aforesaid, provided it should appear that said last claim is entitled to priority to the deed of trust, is to be applied to the benefit of the parties named in the deed of trust according to the terms thereof.

The court is further of opinion, that there was error in proceeding to decree a sale of the lands before the priorities of the parties had been ascertained, and without an en-quiry as to what lands owned by the debtor as described in the deeds, copies of which were made exhibits with the bill, were included in the deed of trust.

The court is therefore of opinion, that said decree is erroneous, and it is adjudged and ordered that the same be reversed with costs to the appellant; and the cause is remanded with instructions to set aside the sale heretofore made, to direct an enquiry by a commissioner to ascertain what portion of the land of the said Isaac C. Grant was not conveyed by the deed of trust; also an enquiry to ascertain how much of said judgment for said debt of one thousand three hundred the complainants, or either of *them, and to render a decree in favor of each of the complainants against said Isaac C. Grant for the amount so paid and interest. And if the same shall not be paid within a reasonable time, to be fixed by the court, then to decree said lands to be sold and the proceeds applied; and the cause proceeded in in order to a final decree, according to the principles of this opinion and decree.  