
    
      Chappell v. Robertson.
    December, 1843,
    Richmond.
    (Absent Cabell, P.)
    Equity Practice — Codefendants—Decree against One in Favor oí Another — Appellate Practice — Parties— Objection — Waiver.*—A party having- covenanted to pay a sum of money in trust for the benefit of the covenantee and his wife and children, the covenantee afterwards takes the oath of insolvency, and transfers to the sheriff, for the benefit of the creditor, his interest under the cov-enaht. Upon a bill by the creditor against the covenantor, the covenantee, and the wife and children of the latter, (the sheriff not being made a party) the court decrees that the covenantor pay to a trustee, appointed by consent of the other defendants and the plaintiff, the money secured by the covenant, and directs the trustee to invest the same, and out of the interest pay the plaintiff the amount of his debt. -From this decree the covenantor alone appeals. Held, 1. The objection that the sheriff was no party to the suit, not having been taken in the court below, cannot be made a ground in the appellate court for reversing the decree. 2. The decree was properly rendered in favour of the codefendants of the covenantor, as well as in favour of the plaintiff. 3. The appellant, being bound by his covenant to pay the money, has no interest in the question how it shall be applied, and therefore is not entitled to make the obj ection that the fund secured ' by the covenant was not liable to the creditor of the covenantee.
    On the 21st of May 1831, an agreement was entered into between Daniel Oglesby and Richard T. Chappell in the following terms:
    “Memo, of an agreement entered into this 21st day of May 1831, between Daniel Oglesby of the one part, and Richard T. Chappell (both of the county of Bedford) of the other part, witnesseth that the said Daniel Oglesby doth agree to relinquish and abandon all claims, actions or causes of action, as well on account of several assaults and batteries committed on his the said Oglesby’s body by him the said Chap-pell, as on all other accounts whatsoever. He the said Chappell, in considera-591 tion *of the premises, and for divers other good and valuable causes and considerations, doth bind himself, his heirs &c. to convey in trust for the benefit of the said Oglesby and family two thousand dollars, three hundred of which is to be paid on demand, and the balance in twelve months; the trust to cease on the death of the said Oglesby, at which time one third of its amount is to be paid to mrs. Oglesby, and the balance to be equally divided amongst the said Oglesby’s children. In testimony whereof the said Oglesby and Chappell have hereto set their hands and seals the day and year first above written, his
    Dan’l X Oglesby [B. S.] mark.
    Rich’d T. Chappel [B. S.]”
    “Teste, N. J. Manson,
    Balda M’Daniel.”
    In pursuance of this agreement, Chappell, on the 6th of June 1831, paid 300 dollars to William Witt as trustee for Oglesby and his family.
    On the 18th of July 1831, Oglesby took the oath of an insolvent debtor at the suit of two several creditors, Archibald Robertson and Augustine Beftwich. In each case, the schedule subscribed and delivered in by Oglesby contained the following clause: “A certain Richard T. Chappell hath entered into a covenant to convey in trust for the benefit of myself and family the sum of 2000 dollars, under certain limitations in the covenant set forth. So far as I am entitled to any thing- under the said covenant applicable to the payment of my debts, the same is hereby transferred to the sheriff of Bedford.” And in neither schedule was any other property surrendered or specified.
    In May 1832, Archibald Robertson, one of the creditors at whose suit Oglesby had taken the oath of insolvency, filed a bill in the circuit superior court of Bedford, 592 *against Oglesby, his wife, their three children (all of whom were infants), and Richard T. Chappell, setting forth the debt due -from Oglesby to the plaintiff, and Chappell’s agreement with Oglesby, and praying satisfaction of the said debt out of the fund which Chappell, by his said agreement, had covenanted to settle upon Oglesby and his family.
    On the 4th of June 1832, Chappell, then a resident of Charlotte, was declared a lunatic by the court of that county, which thereupon appointed Josiah W. Chappell committee of his estate. By an amended bill shorty afterwards filed, the said committee was made a defendant in the cause.
    Daniel Oglesby, in his answer, stated that the covenant in the bill mentioned was entered into by Chappell as a compensation for the personal injury which he had recently before inflicted upon the respondent by a violent assault and battery upon his body; and submitted to the court whether the sum secured by the covenant was liable to the plaintiff’s demand.
    Mrs. Oglesby filed a separate answer, insisting that the fund secured by the covenant of Chappell was not liable to the creditors of her husband. Her answer concluded as follows: “If this respondent be entitled to the money, (and she submits that question to the judgment of the court) she prays the court to appoint a suitable trustee, and to direct such investment thereof as the court shall think best for herself and children.”
    The infant defendants, by a guardian assigned ad litem, answered, submitting to the court the protection of their rights.
    Josiah W. Chappell, the committee of Richard T. Chappell, answered, that if the covenant alleged in the bill was ever in point of fact signed and sealed by Richard T. Chappell (of which he required full proof), the same was nevertheless wholly null and void; 1st. because Richard T. Chappell was insane at the time of 593 executing *it; 2dly, because it was extorted from him by duress and other improper means; and 3dly, because it was unconscionable and without sufficient consideration.
    Upon the questions of fact put in issue by the answer of Chappell’s committee, numerous depositions were taken and filed on both sides.
    The cause coming on to be heard the 16th of October 1834, the circuit court held, that the principal sum stipulated to be secured by the covenant of Chappell was not a debt to Daniel Oglesby himself, and therefore was not liable to his creditors, but that he was entitled to receive the interest during his life, which consequently was liable to them. The cottrt therefore proceeded to decree, that Josiah W. Chap-pell committee of Richard T. Chappell, out of the estate of the said Richard T. Chap-pell, do pay unto Balda M’Daniel (who, by consent of the plaintiff and of the defendants Daniel Oglesby and wife, was thereby appointed a trustee under the agreement aforesaid) the sum of 1700 dollars with interest from the 21st of May 1832 till paid; that the said trustee be authorized and required to collect from William Witt the 300 dollars of the trust fund paid to him by Richard T. Chappell, and all interest due thereon; that the whole principal of the trust fund, when collected, be put at interest by the said trustee, upon good security; that out of the interest accrued and to accrue thereon, the said trustee pay the plaintiff his debt, amounting to 445 dollars 7 cents, with interest on 278 dollars 57 cents, part thereof, from the 3d of October 1834 till paid; and that the said committee of Richard T. Chappell, out of the estate of the said Richard T., pay the plaintiff his costs of suit. And liberty was reserved to the plaintiff, and the defendants Daniel Oglesby, his wife and children, to apply thereafter for any such further order and decree as they or any of them might be advised to ask in relation to the said trust subject.
    594*On the petition of Chappell’s committee, an appeal was allowed.
    The cause was argued here by C. and G. N. Johnson for the appellant, and Beigh and Garland for the appellee.
    I. The question mainly discussed was, whether the covenant entered into bj' Richard T. Chappell was valid and proper to be enforced in a court of equity? But it is unnecessary to report this part of the argument.
    II. It was objected for the appellant, that if the plaintiff’s claim had any foundation, the sheriff, in whom Oglesby’s estate upon his swearing out became vested, should have been a party.
    To this it was answered, that all the parties who had any real interest in the cause were before the court. The sheriff was a naked trustee, and if brought into the case at all, he would have been a merely formal party. If the objection was worth anything, it should ha're been taken in the court below: it could not now be made a ground in the appellate courl for reversing the decree. On this point, the counsel for the appellee cited Buck v. Pennybacker’s ex’ors, 4 Beigh 5; Moore’s adm’r v. George’s adm’r, 10 Beigh 228; Mayo v. Murchie, 3 Munf. 397, 8, 400, 404, 409; Story’s Eq. PI. 76, 197.
    III. It was objected for the appellant, that the court could not in this case make a decree against him in favour of his co-defendants. No issue was made up in any form between the appellant and Oglesby. They were codefendants, both resisting the ■claim of the. plaintiff, but neither haying' any controversy with the other. Oglesby ■did not ask the decree which was rendered in his favour: the appellant did not acknowledge any liability to Oglesby, but confined himself t.o denying the right asserted by the plaintiff. The consideration ■of the relative rights and liabilities of Oglesby and the appellant was no farther involved in the case, than inasmuch 595 *as the plaintiff claimed through Oglesby his debtor. Under such circumstances, the court should have confined itself to pronouncing on the question which alone was before it, namely whether the estate of Chappell should be held liable to satisfy the plaintiff’s debt; leaving Oglesby to assert, in his own way and at his own time, his rights against Chappell’s estate, if any he had. Those rights (if any such ■existed) did not in any manner grow out of the decree in favour of the plaintiff, but were additional to and wholly independent ■of that decree. Ror anything this court could know, Oglesby’s claim might have been actually released prior to the decree: ■for he might release his own claim, though not that which his creditor derived through him.
    The counsel for the appellee answered,, that whatever a decree between codefend-ants is shewn to be proper by the pleadings and proofs between the plaintiff and defendants, a court of equity not only has the right but is bound to make such decree. Chamley v. Lord Dunsany &c., 2 Sch. & Hef. 710, 718; Conry v. Caulfield, 2 Ball & Beatt. 255; Templeman v. Fauntleroy, 3 Rand. 434; Morris &c. v. Terrell, 2 Rand. 6. Here the pleadings and proofs between the plaintiff and defendants shewed the right of Oglesby and his wife and children to have the fund secured to them under the compromise; and mrs. Oglesby, in her separate answer, expressly prayed that a trustee might be appointed to receive and invest the fund for the benefit of herself and children. Such a decree as that made by the court was more especially proper in a case like this, where the defendants chiefly interested in the trust fund were a married woman and her infant children.
    IV. It was objected for the appellant, that whether the agreement entered into by Chappell was valid or not, the plaintiff had no right to satisfaction of his demand against Oglesby out of the fund thereby stipulated to be secured for the benefit 596 of Oglesby and his family. *Roanes v. Archer, 4 Heigh 550, 568; Scott &c. v. Gibbon & co., 5 Munf. 86, 90.
    The counsel for the appellee answered, that if this objection were valid in point of law, still it was an objection which could not be taken by this appellant. If part of a fund which could not properly be subjected to the payment of Oglesby’s debts had nevertheless been so applied by the decree, those entitled to the fund, namely, Oglesby, his wife and children, were alone aggrieved, and they alone had the right to complain. They had not appealed, and did not complain. Supposing that Chappell’s estate was bound for the money which he covenanted to pay, it was obviously immaterial to the appellant to what party it was paid, or to what purpose applied.
    
      
      Appeilate Practice — Party Not Interested in Property. — An appellate court will not reverse a decree, though erroneous, at the instance of a party not interested in the property involved in the suit. Elcan v. Lancasterian School, 2P. & H. 68, citing the principal case.
    
   AHHEN, J.,

delivered the following as the opinion of the court:

Without deciding whether the sum agreed to be paid by Richard T. Chappell, or the interest accruing thereon during the lifetime of Daniel Oglesby, was liable to the debts of said Oglesby, (it being unnecessary so to decide, as the parties who alone could litigate that question have acquiesced in the decree appropriating so much of the interest as might be requisite to the payment of the debt due the plaintiff) the court is of opinion that as to the appellant Chap-pell, the only party contesting the decree before this court, there is no error in the said decree, and that the same should be affirmed.  