
    *Watts and Others v. Kinney and Wife.
    [23 Am. Dec. 266.]
    November, 1831.
    Specific Performance — Contract by Husband to Sell Wife’s Land — Mutuality.  — A husband contracts to sell his wife’s land: upon a bill In chancery, by the husband and wife against the purchaser, to compel specific execution of the agreement, it seems, specific execution shall not he decreed, because specific execution could not be decreed at the suit of the purchaser, upon a hill against the husband and wife, to compel her to convey her land, and so the remedies are not mutual.
    
      Same™ Decree Directing, before W ife Executes Deed-Effect. — And, at’ any rate, upon .such a bill for specific execution of such a contract, preferred by husband and wife against the purchaser, a decree ['or specific execution against the purchaser, before the wife shall have executed a deed conveying the land, though the decree be suspended till she shall execute such a deed, is erroneous.
    Judgment against Principal — No Execution Issued— Payment by Sureties — Subrogation — A j udgmeni is recovered against a principal and his sureties; the judgment creditor sues out no elegit, or other execution, within the year; the sureties discharge tile judgment; Held. the sureties have a right to be subrogated, in equity, to the benefit of the lien of the creditor's judgment upon the lands of the principal, in preference to a foreign attachment, sued out by another creditor of the principal, after the judgment.
    Case Disapproved. — The opinion, in Tate v. Liggatt. 3 Leigh, 84, that "a creditor at large procuring a mortgage of his debtor's property, cannot claim as a creditor, or in the double character of creditor and purchaser, but only as purchaser,” doubted an d disapproved.
    .Foreign Attachment against Land -Debt Payable in Instalments — Some Not Due-Decree. — upon a foreign attachment in chancery, to subject lands of the absent debtor, to a debt claimed by the attaching creditor, payable in instalments, some of which have, and others have not, fallen due, at the time of the decree; Held, the court ought not to direct the sale of the subj ect, to satisfy more than the instalments already due: but should order a sale to satisfy what is due. and hold the creditor’s attachment a lien on the subject, for the instal-ments afterwards to fall due.
    George Holloway and his sister Elizabeth wife of Nicholas Kinney, being entitled, by devise from an uncle, to a tract of 916 acres of land in Amherst, that is, each to a moiety, and holding the same as tenants in common, a parol contract was made between Kinney and Holloway, whereby Kinney agreed to sell his wife’s undivided moiety to Holloway; and, thenceforth, Holloway, who had previously been in possession of the whole tract as one of the tenants in common, continued to hold it as intirely his own. In 1822, '"'Kinney reduced to writing, the terms of the agreement between him and Holloway, as he understood them, executed it himself, and then left it with L. P. Thompson, in order that he might shew it to Holloway, and that he might also execute it. The agreement, thus written and executed by Kinney, was in these words: “Whereas I, N. Kinney of &c. have heretofore sold to G. Holloway of &c. one moiety of a certain parcel or tract of land lying &c. in Amherst, to which I am entitled in right of my wife, who held the same under the will of H. H. deceased, and the said Holloway and myself having never entered into any written contract as to the terms of said sale, it is hereby declared and understood by the said Kinney and Holloway, that the said Holloway, for the moiety aforesaid, is to pay the said Kinney at the rate of ten dollars per acre, the whole tract containing 916 acres; one moiety of which, at the rate per acre aforesaid, will be equal to the sum of 4580 dollars; which is to be paid in manner following, to wit; the sum of 500 dollars, on or before 1st January next; 1000 dollars on or before the 1st January 1824; SOO dollars, on or before the 1st January 1825; 1000 dollars, on or before the 1st January 1826; 500 dollars, on or before the 1st January 1827; and 1080 dollars, on or before the 1st January 1828. But it is under-’ stood, that the said Holloway is at liberty to discharge the instalments aforesaid in bonds of good and responsible men residing in the county of Amherst due and bearing interest, none of which bonds in amount to be less than ICO dollars. And it is further understood and agreed, that the said Kinney is to make the said Holloway a good and sufficient title in fee simple, on the said Holloway’s securing to him the amount of the purchase money in such manner as shall be deemed safe and secure. If the purchase money aforesaid is paid in bonds, the said Holloway is to assign them in the usual manner, punctually, on or before the time the instal-ments aforesaid, respectively, fall due. Por the true performance of the above contract, the parties bind themselves, each to each other, in the sum of 8000 ^dollars. In testimony whereof they have hereunto set their hands and seals, this 21st August 1822.
    Witness, Ñ. Kinney [seal.]
    L. P. Thompson, as to N. Kinney.”
    [seal.]”
    This paper being shewn by Thompson to Holloway, he said, that this draft of the agreement conformed with his understanding of the contract, except that it restricted him as to the bonds he was to assign in payment, to bonds for not less than 100 dollars, and to bonds of persons resident in Amherst; whereas in their parol agreement, there was no such restriction. And he addressed a letter to Holloway, dated, Amherst, 7th September 1822, wherein he said — “I consider myself privileged to assign bonds of any amount in discharge of the payments for the land, and I did not expect to be limited to this county for the payment of them. I have informed Mr. Thompson, that with the exception of these two items, the articles of agreement which you delivered to him, correspond with my ideas of the contract.”
    Holloway was a deputy of John Warwick sheriff of Amherst, for the years 1820-21 and 1821-22; and Henry Watts and eight others were his sureties bound in his bond to Warwick for the faithful discharge of his office of deputy for the first year, and the same Watts and five others were his sureties bound . in his official bond for the second year of his service. In April 1823, a judgment was recovered by Warwick upon a motion -against Holloway and Watts and the other five sureties in the bond for the second year, for about 5000 dollars, on account of Holloway’s defaults in office during that year; and in June 1823, another judgment was recovered by Warwick against Watts and the other eight sureties in the bond for the first year, for 189 dollars, with damages &c. likewise on account of Holloway’s defaults in office during the first year.
    ’’'Before this last mentioned judgment was recovered, Holloway left Virginia, much indebted on account of his .official transactions, and otherwise: in consequence of which, Watts and all the other sureties of Holloway in both his official bonds, on the 17th June 1823, sued out of the superiour court of chancery of Lynch-burg, a subpoena against Holloway now absent, and several other persons as garnishees, and among them Kinney and wife, the object of which process was to attach any effects of Holloway in the hands of the garnishees, or debts due him from them, for the attaching creditors. This process was not served on Kinney and wife till the winter of 1823-4; and the copy of the process served on them did not indicate that it was a foreign attachment of Holloway’s land. Nor was any bill filed in that suit, though it never was dismissed.
    One of Holloway’s sureties, ■ Watts; went in pursuit of him, in. the hope of procuring some indemnity .for himself and the others, and found him at New Orleans. And Holloway, by deed dated the 11th December 1823, conveyed to Watts and Kinney one equal undivided moiety of the tract of 916 acres of land in Amherst, describing it as land then held by Holloway and his sister Mrs. Kinney, as tenants in common, under devise from their uncle; with this declaration of trust signed and sealed by Watts, and subjoined at the foot of the deed- — ■“ The above deed is given to us for the purpose of disposing of the land therein described, in such manner as we mutually agree upon, for the benefit of the said Holloway; and after the sale, to appropriate the proceeds to the payment of a debt of 200 dollars to H. Watts; the residue to the discharge of any money which Watts” and Holloway’s other sureties in his official bonds, “have paid or may have to pay for the said Holloway.” This deed was acknowledged by Holloway before a district court of Louisiana sitting at New Orleans, and his acknowledgment thereof certified by the court under its seal, to the county court of Amherst, which, upon this proof, at March term 1824, ordered it to be recorded. *Though it was denied, that this deed was duly recorded, the execution of it was admitted.
    In the meantime, namely, in September 1823, a bill was exhibited in the superiour court of chancery of Staunton, by Kinney and wife against Holloway now absent, and one Stephenson; wherein, as to Holloway (for it is not necessary to notice Stephenson’s part of the case) they set forth the agreement between Kinney and Holloway, for the sale by the former to the latter, of Mrs. Kinney’s undivided moietj’’ of the tract of 916 acres of land, stating the terms of the agreement according to Kinney’s draft thereof of the 21st August 1822, with the modifications suggested in Holloway’s letter to Kinney of the 7th September 1822, to which, Kinney said, he signified his assent by letter to Holloway. And they insisted, that they had a lien on Mrs. Kinney’s moiety, of which full possession had been given to Holloway, though no conveyance thereof had been made to him, for the purchase money stipulated to be paid for the same; and that Holloway’s own moiety was liable to be attached to satisfy his debt to .Kinney, for the purchase money of his wife’s moiety. Therefore, they prayed a specific execution of the agreement, and (as a consequence of specific execution) a decree for the sale of the whole of this tract of 916 acres of land, and the application of the proceeds thereof to the satisfaction of the debt due from Holloway to Kinney, for the purchase money of the moiety.
    Holloway having been regularly called before the court by publication, according to the course prescribed by the statute in the case of absent debtors and defendants; and the court having appointed commissioners to ascertain the then value of the whole tract of land in cash, who reported that it was then worth only five dollars per acre, that-is, 4580 dollars;
    The chancellor, in Dece'mber 1823, made an interlocutory decree, wherein,- — declaring that, besides the equitable lien which Kinney had on the moiety of 916 acres of land sold by him to Holloway, for the purchase money thereof, *he had a right under the statute [meaning the statute concerning foreign attachments, 1 Rev. Code, ch. 123, £ 1, 2, p. 474,] upon complying with the conditions thereby prescribed, to have the whole of the land sold to satisfy the debt due him from the absent defendant for the purchase money of the moiety — he decreed, that Holloway should pay Kinney the first instalment of 500 dollars with interest from the 1st January 1823, when it fell due, and the other instalments of the purchase money, to be paid in bonds to be assigned before the instalments should respectively fall due, according to the terms of the agreement as manifested by the draft of the 21st August 1822, and if the deferred instalments should not be so paid in bonds assigned before they should fall due, then they should be paid in money; and upon Holloway’s default in making the first or any of the subsequent payments, and continuing so in default for six months, he decreed, that the whole of the land should be sold bjr the marshal of the court, at public auction, for cash as to so much as should suffice to pay costs and charges, and the money with interest that should be due to Kinney at the time of sale, and as to the residue, upon such terms of credit as to make the proceeds meet the future instal-ments of the debt due from Holloway to Kinney, with special directions as to the se-car^' which the marshal should take from the purchaser at his sale. But he ordered this decree to be suspended, until Kinney and his wife should execute, in due and lawful manner, a good and effectual conveyance of Mrs. Kinney’s undivided moiety of the land, with general warranty, and should file the same with the clerk of the court, to be disposed of as the court should afterwards direct; and until Kinney should give bond with approved surety, in the penalty of 9160 dollars, being double the value of the land according to the valuation of the commissioners, with condition to abide by and perform such future orders and decrees as the court should make in the cause.
    June 1824, Watts, and all the other sureties of Hollowa3' in his official bonds, exhibited their bill, in the same court, against Holloway and Kinney and wife, setting forth their suret3rship for Holloway, his defaults in office, his insolvency, and departure from the county; exhibiting the judgments already obtained against Holloway and them by the high sheriff, on account of HoUowa3"’s defaults, and alleging that they had paid off and discharged those judgments, and were still exposed to other demands on the same account; and exhibiting also Holloway’s deed of December 1823, procured from him by Watts for their indemnity; referring to the record of the suit and decree in the case of Kinney and wife against Holloway ; and declaring, that they were ignorant of the existence of that suit, until after the decree was pronounced. They mentioned the subpoena and foreign attachment they had sued out of the court of chancery of Lynchburg, in June 1823; and charged, that Kinney had full notice of that proceeding, when he filed his bill against Holloway, in September, or at least before he obtained his decree in December following, and was apprised of their claim to a lien on Holloway’s land for their indemnity' ; and yet had willfully abstained from making them parties. They impeached Kinney’s decree, on the ground, that there was no agreement between Holloway and Kinney, binding on Holloway, for the sale and purchase of Mrs. Kinney’s undivided moiety of the tract of 916 acres of laud, and so there was, in truth, no debt due from Holloway to Kinney; and if that was - a debt justly due to Kinney, yet they insisted, they were entitled to satisfaction out of Holloway’s own undivided moiety of the land, in preference to Kinney. Therefore, they prayed an injunction to inhibit all proceedings under Kinney’s decree of December 1823, and general relief.
    The chancellor awarded an injunction until further order.
    There was an order of publication against the absent defendant Holloway, and as to him the bill was regularly taken pro con-fesso.
    'x'Kinney put in an answer for himself and his wife, in which he admitted, that the judgments mentioned in the bill had been recovered against Holloway’s sureties, as they alleged; and said, he thought it probable they had discharged the judgments, though of this he had no knowledge. He denied the notice imputed to him, of the subpoena and foreign attachment in the court of chancery of Lynch-burg. And he insisted, that his decree in his suit against Holloway, of December 1823, was just and right as between him and Holloway, and equally so, as between him and the plaintiffs in this suit: that he was entitled to the debt he claimed of Holloway; entitled, as an attaching creditor, to have the whole land sold to satisfy the debt; and en titled b3' his attachment, which he had sued out and prosecuted in perfect good faith, without notice of the plaintiff’s claims or pretensions, to priority of satisfaction.
    There was no proof that Watts and the other sureties had discharged the judgments recovered against them by Warwick.
    
      Upon the hearing of this cause, the chancellor dissolved the injunction he had awarded to sta3' proceedings on his interlocutory decree in the suit of Kinney and wife against Holloway, and dismissed this bill of Watts and others against Holloway and Kinney and wife, with costs. And from this decree, Watts and others appealed to this court.
    The cause was argued here, by Stanard for the appellants, and by Johnson for the appellees.
    It being agreed, on all hands, that the appellants, Watts and others, had a right to contest the propriety of the decree of December 3823, in the case of Kinney and wife against Holloway, so far as that decree affected’the interest of the appellants — ■
    I. Stanard contended, that supposing there was such an agreement between Kinney and Holloway as Kinney had a right to specific execution of, and that, therefore, there was *a debt reall3' due from Holloway to Kinney, for the purchase money of Mrs. Kinney’s moiety of the land, for which Kinney might rightly attach Hollowa3'’s moiety; yet Kinney’s decree against Holloway, of December 1822, was, with respect to Holloway’s sureties, Watts and others, plainly unjust. Por, 1st, the appellants having stated their case fully in their bill, made the absent defendant Holloway a party, and prayed general relief, ought, upon this bill, to be considered as attaching creditors: they were the creditors, indeed, who first sued out a foreign attachment, for the subpoena they sued out'of the court of chancery of Lynchburg, had the effect of an attachment, though no bill was filed upon it: and considering both the appellants and appellees as attaching creditors, all the creditors are equally entitled to the benefit of the diligence of each, and the court in such cases, ought to let in all creditors, who come in while the fund is within the power of the court, to a fair participation in it. Lashley v. Hogg, 11 Ves. 602, Angelí v. Haddon, 1 Madd. C. R. S29, and lord Redesdale’s opinion in Latouche v. Ld. Dunsany, 1 Sch. & Lef. 156. 2ndly, at anjr rate, the appellants were entitled to have the surplus of the proceeds of the subject, if any there should be, after satisfying the debt due to Kinney, applied to the satisfaction of their claims; yet the chancellor had not thought it proper to make any provision to give them even that. 3rdly, Kinney could not attach Holloway’s property for the instalments of the debt •claimed by him, that had not yet fallen due; at least, he was not entitled to a decree for money not due. A foreign attachment and a decree upon it against an absent defendant, were given in place of an action and judgment at law against a resident defendant; but no judgment could be given at law, no action would lie for a debt not' due. And, certainly, the court ought not to have decreed a sale to satisfy the instal-ments yet to come due: the most it could have done, was to decree a sale of so much as would raise enough to pay what was already due. Campbell v. M’Comb, 4 Johns. Ch. Rep. 534. *4thly, and chiefly, the judgment which Warwick had obtained against Holloway and his sureties, in April 1823, to the amount of 5000 dollars, being prior in date to Kinney’s decree, and even to his attachment, constituted a lien on Holloway’s land, prior and preferable to-the lien which Kinney acquired by his attachment and decree against Holloway. He said, the appellants had paid off and discharged this judgment; but it was immaterial whether they had or not. If the judgments were still unsatisfied, they gave Warwick a lien on Holloway’s lands, which his sureties had a right to have enforced for their indemnity. If the sureties had satisfied the judgment, they had a right to be substituted to' the benefit of Warwick’s judgment against their principal, and to have his lands extended upon it. Eppes v. Randolph, 2 Call, 125, 188; Tinsley v. Anderson, 3 Call, ,286-9; Wright v. Morley, 11 Ves. 22; Hayes v. Ward, 4 Johns. Ch. Rep. 123; Lidderdale v. Robinson, 12 Wheat. 594; Enders v. Bruen, 4 Rand. 438.
    II. He contended, that the appellants had a right to have the whole debt due to them from Holloway, charged upon his moiety of the land; as well that part of it, which arose out of the judgment against both Holloway and themselves, as that part which arose out of the judgment against themselves alone, and whatever they should any wise be held to pay as his sureties. He admitted, that Holloway’s mortgage of the 11th December 1823, was not duly recorded, because it was not acknowledged before justices of the peace in New Orleans, but before the district court, which was not regular according to the present statute of conveyances, as was decided in Lockridge v. Carlisle, 2 Leigh, 186. But, whether recorded or no, it was good as between the parties; good as against every body but purchasers without notice and creditors. Kinney claimed as creditor. But he was not a creditor of Holloway: he had no right to demand specific execution of the alleged agreement between him and Holloway for the sale of his wife’s moiety of the land'to Holloway. The agreement was ac-knowledgedly, *in the beginning, a parol agreement; and the possession of Holloway was not such a part performance as to take the case out of the statute of frauds; for, in order to constitute possession taken, or acts done, by a vendee of land by parol agreement, such part performance as will take the agreement out of the statute, the possession, or acts done, must have plain and certain reference to the agreement. Sugd. Law Vend. 83. Here, Hollcway had the possession before the agreement, as tenant in common, and might well have continued to hold possession in the same right. Certainly, his possession was not, necessarily, a possession under the agreement. The agreement never was reduced to writing and signed by Holloway. Kinney prepared a draft of it: Holloway excepted to its terms in two particulars : his letter stated his exceptions: the terms were never definitively agreed, much less reduced to writing. But, if this objection be ill founded, Kinney could not enforce a specific execution of Holloway’s agreement to purchase his wife’s land of him, because there was no reciprocity in such an agreement; the remedy was not mutual, since Holloway could not have compelled Mrs. Kinney to convey her right. Id. 158. At all events, the court could not decree specific execution, before Mrs. Kinney had actually joined in a conveyance binding on her, and irrevocable. If she refused to join in a conveyance; if she died the day after the decree for specific execution, of December 1823, and her rights descended to her infant children ; Holloway would not have got the land, and yet the decree gave Kinney a judgment against him for the purchase money. The decree of December 1823, placed Holloway’s debt to Kinney, not on any thing that had been done, but on acts to be done in future, which might never be done. Holloway, then, owed no debt to Kinney; and the decree that adjudged the debt to him, ought to be put wholly out of the way of the appellants.
    I. Johnson, in his answer to the first set of objections to the decree of December 1823, said, 1st, That as to the *subpoena sued out of the court of chancery of Lynchburg, by the appellants, in June 1822, no notice of that proceeding was brought home to Kinney, before he had obtained his decree against Holloway; and if he was apprised of it, it was not easy to see how process in another suit, and that a suit never proceeded in, and in fact abandoned, could be connected with this suit, to any purpose whatever. The court could onl3r look to the appellants’ bill in this case; and that was not framed as a foreign attachment: the appellants did not seek to attach Holloway’s property; they claimed a lien on it, and a right to satisfaction out of it, in preference to Kinney. But, he said, in the proceeding by way of foreign attachment under the statute of Virginia, the attaching creditor was entitled to the whole benefit of his own diligence ; for he could only obtain a decree, upon condition of giving bond with surety to abide any future decree of the court, in case the proceedings should be opened at the instance of the absent debtor; and, surely, he could not be held to undertake that burden for any person’s benefit but his own. 2ndly, He had no objection to the appellant’s claim to the surplus of the fund, after the debt due to Kinney should be satisfied. The decree might be so corrected as to retain the appellants’ bill for this purpose. 3rdly, He insisted, that a foreign attachment would lie for a debt payable in future; Williamson v. Bowie, 6 Munf. 176. Whether the whole subject attached ought to be so sold as not only to pay the instalments due, but to meet the deferred instalments when they should fall due, was always a question for the discretion of the court. And it were strange if it should be otherwise, seeing that the same statute, which gave the foreign attachment in chancery against absent debtors, gave also a common attachment against absconding debtors, for debts to fall due at a future time, and provided for a sale of the subject, exactly in the manner in which the chancellor directed the sale here. 1 Rev. Code, ch. 123, $ 14, p. 478, 9. 4thly, He strenuously contended, that the appellants could claim no benefit '^whatever, as against Kinney, from the judgment which Warwick recovered against Holloway and them, as there was no proof that the appellants had discharged that judgment, it must be taken that they had not; and as Warwick had never elected to have execution of Holloway’s lands, and as it was quite certain he never would elect to resort to that for satisfaction, the judgment in his hands was not a subsisting lien on the lands. But, if the appellants had discharged the judgment, how was it possible, that this satisfied judgment could be a lien on Hollow'ay’s land, when no elegit could ever possibly b'e sued out upon it? The lien of a judgment on the debtor’s lands was only a consequence of the capacity of the creditor to sue out an elegit. If the lien was extinguished in Warwick’s hands, it could not be revived for the benefit of Holloway’s sureties: they could not be substituted in Warwick’s place, for the benefit of a remedy which he himself no longer had. He went into minute examination of the cases, in which a surety paying a debt, has been substituted to the benefit of the remedies which the creditor had against the principal debtor; and he argued, that this doctrine of subrogation was the creature of equity, and that no such subrogation was ever allowed in equity, where the legal remedy of the creditor was extinct at law, and where, if revived in equity, it would overreach or affect the legal rights of third persons having equal equity. But, he said, the conclusive answer to this claim of the appellants, was, that they were creditors who had ohtained a mortgage of the subject for the debt due them; and they could not now claim as creditors in any way, or in the double character of creditors and purchasers, but as purchasers only. Tate v. Higgat, 2 Leigh, 84, 104. Sthly, Accordingly, they did claim as purchasers under their mortgage; but the mortgage not being duly recorded was unavailing as against creditors. The deed was executed at New Orleans the 11th December 1823, while Kinney was pursuing his remedy by foreign attachment, and his lien was consummated by the decree of the 20th December 1823, *before he could possibly have notice of the deed. The appellants had no just ground to complain, that he did not make them parties to his suit against Holloway.
    II. With regard to the other objections, which, if just, shewed that Holloway owed Kinney no debt, and so razed Kinney’s claim from the foundation, the first of them rested on the statute of frauds. The contract for the sale and purchase of Mrs: Kinney’s moiety of the land, was, at first, a mere parol agreement. If the subsequent transactions with respect to it, did not shew that this agreement was reduced to writing, they shewed, at least, that Holloway claimed under the sale, and that the possession he afterwards held of the land, in intirety, was referrible to the agreement, and not to his tenancy in common. But this was an agreement in writing within the statute: Kinney reduced the agreement to writing, and signed it; Holloway then wrote him a letter, saying that the draft corresponded with his idea of the contract, except in two particulars, which he specified ; and Kinney claimed according to the terms of the contract written by him as modified by Holloway’s letter. Taking the contract as written by Kinney, and Holloway’s letter, together, there was a written agreement, within the words and spirit of the statute. • The other objection was, in effect, that a husband cannot make an ex-ecutory contract for the sale of his wife’s land that will be binding on the purchaser, because the wife is not bound to convey in pursuance of her husband’s agreement, and so the remedy is not mutual; a principle of very extensive consequence. It had, indeed, been doubted, whether it was right to decree specific execution of a contract of sale by a husband of his wife’s land, at the suit of the purchaser against the husband; but it never was questioned, that, where husband and wife unite in a bill demanding a specific execution of a purchaser’s contract with the husband, for the purchase of the wife’s land, it was right to decree specific execution against the purchaser. To exempt him from the duty of specific performance, in such a case, were to exempt him from an ^'obligation contracted by him, with his eyes open to the situation of his vendor, with full knowledge of the necessity of the wife’s concurrence, and in the expectation of her concurrence, in the execution of the contract; when the wife is willing to unite with her husband in the execution of it; when the purchaser is exactly in the situation in which he voluntarily placed himself; and when he has no delaj', inconvenience or mischief to . complain of. It was said, that, at all events, the husband and wife coming to demand specific execution of a contract, should have the wife’s conveyance in court, duly executed so as to be irrevocably binding on her, before the court should hold the purchaser to specific execution. But there could be no substantial difference between an interlocutory decree for specific execution against the purchaser, founded on an actual exhibition of such a conveyance, and an interlocutory decree, like the present, suspended in its effect, until the conveyance should be duly executed, and filed in court.
    
      
       Sale of Land— Specific Performance — Contract of Husband to Convey Wife’s Lands — Mutuality of Remedy.— On this question the principal case is cited in Clarke v. Reins, 12 Gratt. 109, and foot-note; Shenandoah Val. It Co. v. Dunlop, 86 Va. 850, 10 S. 33. Rep. 289; Hoover v. Calhoun, 18 Gratt. 112 (see note); Litterall v. Jackson, 80 Va. 614; Cheatham v. Cheatham, 81 Va. 408; Chilhowie Iron Co. v. Gardiner. 79 Va. 311. See foot-note to McCann v. Janes, 1 Rob. 256; also, monographic note on “Husband a.nd Wife” appended to Cleland v. Watson, 10 Gratt. 159.
      Same — Same—Tille—A court of equity will not, in general, decree specific performance of a contract for the sale of land, unless the vendor can make a good title. Middleton v. Selby, 19 W. Va. 174, citing Watts v. Kinney. 3 Leigh 272. To the same effect the principal case is cited in foot-note to Goddin v. Vaughn, 14 Gratt. VM: foot-note to Clarke v. Reins, 12 Gratt. 98; Linkous v. Cooper, 2 W. Va. 70. See foot-note to McCann v. Janes, 1 Rob. 256; also, mono-graphic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 213.
    
    
      
       Judgments — Elegit—Effect.—In Werdenbaugh v. Reid. 20 W. Va. 591, it is said, the courts declare expressly that the lien created by the issuance of the writ of elegit was a legal lien. Leake v. Ferguson, 2 Gratt. 420; 1 Lomax Dig. 288. And this lien exists as long as the judgment remains in force, and as long as the judgment is susceptible of being revived where revival is necessary. Watts ®. Kinney. 3 Leigh 273, 293; Taylor v. Spindle, 2 Gratt. 44; Burbridge v. Higgins, 6 Gratt. 119. The principal case is cited in foot-notes to the last named cases. The principal case is also cited to the same effect in a note to Bank of TJ. S. v. Winston, 2 Fed. Cas. 743. See mono-graphic mofe on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Subrogation — Surety—Judgment.—On the question of the right of the surety to subrogation to the lien of the creditor’s judgment against the land of the principal, where such surety has satisfied the judgment, the principal case is cited in foot-note to Mc-Ciung v. Beirne. 10 Leigh 391; foot-note to Hill y Mauser. 11 Gratt. 522: Buchanan v. Clark, 10 Gratt. 173, and note', foot-note to 33ppes v. Randolph, 2 Call 1,25; Tinsley v. Anderson, 3 Call 329; Powell v. white, 11 Leigh 316, 332 (see note); Ford v. Thornton, 3 Leigh 700; Pace v. Pace, 95 Va, 800, 30 S. 33. Rep. 361: ,1 ohnson v. Youn.g, 20 W. Va. 661; Bank of CT. S. v. Winston, 2 Fed. Gas. 743. See monographic note on “Subrogation" appended to Janney v. Stephen, 2 Pat. & H. 11.
      The principal case is cited in Fidelity, etc.. Co. v. R. R. Co., 32 W. Va. 271. 9 S. 13. Rep. 190.
      For the following proposition, that a court of equity looks to substance not to form; it looks to the debt which is to be paid, not to the hand which may happen to hold it; that the fund charged with its payment, shall be so applied, whosoever may be the person entitled: and it considers a debt as never discharged until it is discharged by payment to the proper 'person, and by the proper person, the principal case is cited in Yancey v. Manck. 15 Gratt. 310, and note: Goles v. Withers, 33 Gratt. 201. and note: Summers v. Dame, 31 Gratt. 807; Gibertv. B. R, Co., 38 Gratt. 597; Frazier v. Hendren, 80 Va. 270; Dunlap v. Shanfclin, 10 W. Va. 674.
    
    
      
       Casa Disapproved. — The principal case disapproves that part of the opinion in Tate v. Liggat, 2 Leigh 84, where it is said that a creditor at large procuring a mortgage of his debtor’s property, cannot claim as a creditor, or in the double character of creditor and purchaser, but only as purchaser. See what is said in Runkle v. Runkle, 98 Va. 666, 37 S. E. Rep. .379, where the principal case is cited. See also, foot-note to Tate v. Liggat.
    
    
      
       Attachments. — See monographic note on “Attachments” appended to Lancaster v. Wilson. 27 Gratt. 624.
    
   TUCKER, P.

If the appellant’s case is to be sustained in this court, I am inclined to think it cannot be on the'ground of their having presented themselves as attaching creditors in this suit, or as seeking to become parties to the attachment of Kinney, or as entitled to avail themselves of the naked subpoena which they sued out of the court of chancery of Lynchburg. Their bill assumes not at all the shape of an attachment ; nor do they ask to participate in the benefits of Kinney’s, upon the usual terms of the court; so that we may throw out of the case the various questions which have been suggested upon these views of the subject. And as to the Lynchburg attachment, whether the original indorsement on the subpoena was or was not imperfect or inefficient; whether the lien has been preserved by keeping the cause on the docket, or lost for want of prosecution ; certain it is, I think, that we cannot (if I may so speak) splice that case to this, for the purpose of preserving the supposed preference, which the creditors may have obtained, by that process, over Kinney and wife.

“But though upon these grounds the creditors have little pretensions to success in this case, yet there are others that present much stronger claims to our attention. I shall consider these in succession.

The first of them which I shall notice, refers itself not so much to the merits of the respective pretensions of the parties, as to a question not vital to their interests. Admitting the superiority of the claim of the appellees, it is yet contended, that as they, after all, had only a right to have that claim satisfied, the bill of the creditors should not have been dismissed, until it had been ascertained by a sale, that there would be no surplus, out of which they could have received payment. Whatever were the comparative merits of the claims of the appellants on the one hand, and of Kinney and wife on the other, the claims of the former against Holloway, have not' been seriously contested. If, therefore, the proceeds of sale shall suffice to discharge the demand, or that portion of the demand, of Kinney and wife, which they may have a right to charge upon the land, and a surplus shall remain, there seems no assignable reason, why payment out of such surplus should be refused to the appellants, who stand, as sureties, in the shoes of a creditor whom they have satisfied, and moreover hold the deed of Holloway for the security of their demand: for, whether as representing Warwick, they could overreach Kinney and wife, or whether Kinney and wife were or were not bound by the unrecorded deed of Holloway, he at least was bound and chargeable to the appellants, on either of those grounds. Nor was it an apology for the dismission of the bill, that relief was hopeless, as no surplus was to be expected. Hopeless as it might have been, the result should have been awaited. And, indeed, it ought not to have been considered as hopeless. The decree was for the sale of the whole tract, for the satisfaction of the price of but half of it: and, though no calculation, in judicial proceedings, should have been made on the probability, that the ties of kindred would restrain Kinney from buying in his brother-in-law’s estate *at an immense and ruinous sacrifice; yet there was a reasonable ground of hope, that long credits, and a judicious sub-division of the subject, might effect that which the more amiable feelings of our nature might have been appealed to in vain to bring about. Moreover, if it should appear, that the vendor, Kinney, had a right to a decree only for the amount actually due when his decree was rendered, and not for the deferred in-stalments, then there was every reason for presuming, that that half of the land which was sold by him, would be more than sufficient for that purpose, and would leave the proper land of Holloway for the indemnity of the appellants. I am of opinion, therefore, that in this regard, the decree of dis-mission is very clearly erroneous.

It is essential, however, that the court in reversing the decree, should pronounce upon certain other principles in the case, involving the merits of the controversy, in order to its ultimate adjustment. This leads me to consider, and to' compare the pretensions of the parties, at least in some important particulars.

The superiority of the claim of the appellants may be considered, either as arising out of the deed from Holloway to Watts and Kinney, for the benefit of his creditors, or as sustained by the supposed right to stand in the shoes of Warwick, and to charge the lands of their debtor, by virtue of the lien of the judgment which they have paid off and discharged.

First, let us consider their claim under the deed to Watts and Kinney. This deed, though not duly recorded, and therefore not valid as to the creditors of Holloway, is nevertheless binding between the parties themselves. It constitutes a lien, of which, as against Holloway, the appellants had a right to avail themselves. And it is not only valid against him, but it is also valid against all persons, except purchasers without notice or creditors of Holloway. It can only be assailed, then, in this case, upon the ground, that Kinney and wife are either purchasers without notice, or creditors. The former is not pretended. The latter must *be examined; and it brings us to one of the most litigated points in the case.

I will remark, at once, that I do not conceive Kinney or Kinney and wife to be creditors of Holloway, in this regard. A verbal contract having- been entered into between Kinney and Holloway, for the sale of the lands of Mrs. Kinney, the parties separated without having reduced the terms of the contract to writing; but with an understanding (to place the facts in the strongest points of view for the vendors) that Holloway, who was already in possession as joiutenant should continue to hold the whole tract, one half in his own right as devisee of his uncle, and the other half as purchaser from Kinney and his sister. Waiving the question, whether this continuance of possession constituted part execution, and waiving also the objection arising out of the difference between the parties as to the terms of the parol contract, it is material to remark, that the written contract never was signed by Holloway, the party to be charged with it. Kinney, therefore, never has had any right of action at law against Holloway. If, indeed, the contract had been signed, and the covenants could have been regarded as independent covenants, Kinney might have then maintained an action for the money, notwithstanding a deed had not yet been made and tendered by himself and wife. But. as the contract was not executed, he had no demand whatever at law against Holloway. His demand was only in equity, where the payment of the purchase money never could be enforced until the title was made. Until this was done, he was no creditor in equity : and to this day it has not been done: to this day, for aught we know, the title is in his wife, or, if she is dead, in her heirs; and if she refuses to make a title, or should die without the due execution of one, the contract is annihilated, both at law and in equity; all pretence of specific performance is extinguished ; and the parties are thrown back upon those original rights, which they possessed anteriour to their treaty. How, then, can that be said to be a debt, which is a debt to-day, and to-morrow is *none? which is a debt, in case a wife shall, voluntarily and without the threats of her husband, convey away her own inheritance, and enable him to pocket the money, and no debt if she should decline to do so? How can he be said to be a creditor, whose demand depends upon a contingency which is beyond human ken, since that contingency, in its turn, depends upon the will, not to say the caprice, of a feme covert? Nay, how can he be said to be a creditor, or his adversary a debtor, when the whim, or caprice, or self interest, of that creditor himself, may make, or may avoid, the contract? Can there be a debt without a contract? Can there be a contract without mutual obligation? Can there be an agreement between two parties, which binds one of them absolutely, and the other only at his pleasure? Yet, here the contract between these parties would be binding on one, and not upon the other, if Holloway is to be considered as bound. If from an increased value in the land, or from any other cause, it should be the desire of Kinney to recede, what could restrain him? At law, he was not bound, nor is he yet bound for any thing. In equity, he cannot be decreed to pay Holloway damages or the loss of a good bargain, for this is a jurisdiction it does not exercise (Gwillim v. Stone, 14 Ves. 128; Todd v. Gee, 17 Ves. 277,) unless, indeed, in very special circumstances; and as to compelling the husband to procure a conveyance, the doctrine, never well received, has never been acted upon with us. and seems recently to have been discountenanced in England. Emery v. Wase, 8 Ves. 505, 1 New Rep. 267. It is true, that in a recent case it has been said, that if the wife assents the husband will not be permitted to recede. Howell v. George, 1 Madd. Ch. Rep. 1-7. But so easy is it where family convenience and profit concur, for the influence of the husband to withhold the assent of the wife, that, practically, the doctrine can never be of use. Be this as it may, the wife in this case is the essential contracting party, if indeed she is to be called a contracting party, who is bound or not bound, at her absolute will and pleasure. *Being only thus far bound, the other party cannot have been bound, and cannot therefore have been a debtor.

Upon this ground also it is probable, that no specific performance could properly have been decreed, since the want of mutuality in the contract, is generally a valid objection to the exercise of that jurisdiction. 1 Madd. Ch. Prac. 423, 4. Certain it is, I think, that no decree should have been rendered against the vendee until the vendor had procured and offered in court a deed executed with all proper solemnities to pass the title of the wife; since, otherwise, this solecism is presented, that thé decree between the parties is binding or not binding, at the will and pleasure of one of them.

It would • be unprofitable to pursue, through all its consequences, this anomalous state of contract. Difficulties and absurdities fasten upon it, whithersoever we turn. Thus, this very decree of dismission, may have been free from error when it was rendered, upon the supposition that Holloway’ was a debtor of Kinney, for, in that case, the deed of trust was void as to him; yet, if Mrs. Kinney is since dead, or should now refuse to execute the contract, he is no debtor, and the decree is erroneous; for, in that event, he would certainly not be the debtor of Kinney, and therefore the deed of trust would be good against him. A bill for specific performance will lie for Kinney and wife, if they choose to abide by the contract; but Holloway cannot maintain such a bill. If he becomes a suitor for the benefit of it, he cannot compel, he can do no more than solicit. And his shortest course, instead of being suitor to the court, would be to become a suppliant to the lady.

With these views, I have no doubt, that Kinney was no creditor of Holloway, and that the deed of Holloway, though not recorded, was good against him. This view of the subject renders it unnecessary to consider, whether as an attaching' creditor, Kinney comes in by act of law, so far as to be within the principle, that he, who takes by act of law, steps only into the shoes of his debtor; and “takes his *rights precisely in the same plight and condition, as he possessed them.” “In such cases even though a.complete legal title vests in the party, and there is no notice of any equity affecting it, he takes subject to all the equity to which his debtor was liable. ” This is the doctrine as to assignees of bankrupts, and is broadly stated by sir W. Grant in Mitford v. Mitford, 9 Ves. 100, in reference to all persons coming in by act of law. Whether attachment creditors are so to be considered, and whether the lien of an unrecorded deed would bind the estate in the hands of such persons, are questions not now necessary to be decided.

If the superiority of the rights of the appellants, should not seem clear as arising out of the lien created by the deed of trust, let us next consider it in another light, in which it was presented in the argument at the bar.

It is contended, for the appellants, that having as the sureties of Holloway, paid off the judgments obtained by Warwick, they have a right, upon the principles of substitution, to the lien of the judgments upon the land, which has been subsequently attached at the suit of the appellees. The payment indeed was denied in the argument, though not absolutely denied in the answer. I shall take it as a fact in the cause, because alleged b3' the appellants themselves whose case would perhaps present itself yet more strongly, if we suppose the judgments not to have been paid. In that view they would be relieved from the force of the argument, that equity will not revive a satisfied judgment, to the prejudice of an incumbrancer having the legal title; and of the other argument, that the taking the deed of trust changed their character of creditors into the less advantageous character of purchasers; an argument, which rests upon a supposed decision of this court in Tate v. Liggat. Moreover, their bill would then be considered, in the light of an application to have the benefit of the judgments assigned them; or as seeking to have the property sold to pay off the judgments, for which they are responsible; a right which is conceded to a surety, wherever the debt is due and*payable for which he is bound, in the cases of Campbell v. M’Comb, 4 Johns. Ch. Rep. 538; Ranelaugh v. Hayes, 1 Vern. 190.

Taking the sureties, then, to have paid the debt, and to seek by substitution to have the benefit of the creditor’s lien, there can be nothing more clear, than their right to this, as a general principle. It imports us only to examine the objections made to its application in the present case. These objections have been presented with great force and ability, by the counsel for the appellees. It is contended, that the lien of the judgment has been lost by lapse of time, no elegit or indeed other execution having ever issued; that the lien has been destroyed by the discharge of the judgment by the sureties; and that it has also been destroyed by the execution of the deed of trust, which has changed the character of the sureties from creditors into purchasers.

■ I do not understand the counsel for the appellees as contending, that the two first of these objections could prove a barrier to the right of the sureties to proceed against the debtor himself. However long the judgment may have been out of date, there is no doubt, that, if susceptible of being revived at all, the lien upon the land yet in the hands of the debtor, would be revived eodem flatu; and there can be as little doubt, that if the principal debtor were to interpose the objection that the surety had discharged the debt, a court of equit3r would frown upon such a de-fence in its own forum, and would inhibit it in any other. 2 Call, 136, 7. But it is alleged, that the subsequent creditor has equal equity; and that by the pa3»ment or other discharge of the judgment, the legal lien which it gave is extinguished ; and it is contended, that that lien should not be revived at the instance of a surety against the second incumbrancer, who has by the fact of the discharge of the first judgment, acquired the better title at law. And the principle is relied on, that where equity is equal {he law will prevail.

The principle is unquestionable, but its application may be doubted. It is not true, that the equities of the parties, *in the case supposed, are equal; and if that of the sureties be superiour, it must prevail, although their adversary may have the law in his favour. The whole train of authorities on this subject, is founded upon the principle of the superiour equity of the sureties, to be paid out of that fund to which their creditor might have resorted, for their relief. The surety in a . bond, for the payment of which the principal has bound particular property, has a preference over all other persons, to have the debt charged upon that fund. If the principal dies, and after his death the surety pays off the bond, he has a right to demand the payment of the bond, out of the assets, before the simple contract creditors, and thus to be placed in the shoes of the obligee; because, at the instant of the principal’s death, the obligee had a right to demand pa3rment out of the assets, in preference to any simple contract creditor : in good faith, he should have demanded such payment, instead of putting the burden on the innocent surety: in good faith, the executor should have so applied the assets. An adequate portion should have been set apart and appropriated for that debt. No simple contract creditor had, or could have by law, any claim thereto. If the executor were sued b3T simple contract creditors, he might plead the outstanding bond in bar of the demand. He might fence around an adequate p'ortion of assets against all their assaults. Nor is the state of things changed by payment being forced from the surety, or being voluntarily made by him. If forced from him, a court of equity will give him redress: it will consider him as standing in the shoes of the creditor, who ought to have looked to the estate of the principal, instead of drawing money from the pocket of the surety: it will consider the executor as holding a certain portion of the assets, as trustee for the payment of this very debt, and hold him to the discharge of the trust in its spirit, when it can no longer be performed to the letter: and it will deny to the simple contract creditor, who had no right to these funds, the application of them to the payment of his debt. And why? If the surety discharge *the bond, or a judgment and execution upon it, is he not a simple contract creditor only? and has not any other simple contract creditor a legal right to resort to this fund, as there is now no longer any bond or judgment to be charged upon it? and has he not equal equity? The answer is, no: he not only has not equal equity, but he has no equity whatever to charge a fund which, in equity and justice, belongs to another. He has no equity to demand, that money, which by law ought to have been applied to pay my debt, shall be applied to pay his. The case is the same, if the payment is made voluntarily by the surety. In making that payment, he is governed by the law of this court. Even on entering into his engagement as surety, he looks to its well estabished principles. He knows, if he pays the debt to the obligee, he will stand in the obligee’s shoes. He knows he will be subrogated to all the rights of the obligee, as they subsist at the time he makes his payment. He knows that a court of equity looks not to form but to substance; that it looks to the debt which is to be paid, not to the hand which may happen to hold it; that the fund charged with its payment, shall be so applied, whosoever may be the person entitled; and that it considers a debt as never discharged, until it is dicharged by payment to the proper person, and by the proper person. He knows, that that court, which permits no act of a trustee to prejudice the cestui que trust, will not permit one who stands in the relation of the creditor or obligee to the surety, to bar him of those rights which the principles of equity have secured to him. He is conscious, that his rights do not depend upon the caprice of the creditor, or the whim of an executor, or the sense of right of other creditors, but rest upon the immutable principles of justice and equity; and, in making his payment, he does it in the confidence, that he will be entitled to be indemnified to the full amount, to which his creditor could have charged the assets of the principal.

The foregoing case, which I have put as an illustration, will sufficiently disclose my idea of the principles of equity, *in relation to this doctrine of substitution ; and all the cases, I believe, will sustain the opinion, that the surety’s right of subrogation, can never be resisted by any other creditor, on the ground that he has the law in his favour and equal equity. For, in truth, he has no equity at all as against the surety.

It would be unprofitable to go into a minute examination of the various cases which have been decided upon this subject, in some of which it is clearly seen, that the supposed legal advantage of a party will not protect him from the operation of this subrogation of the surety to the remedies of the creditor. It may, however, not be amiss to refer to two of the cases, with a view to make this matter more clear.

In the case of Eppes v. Randolph, Wayles’s executors paid off a bond in which their testator was surety for Randolph to Bevins. Chancellor Wythe declared, that they would have a right to stand in his shoes as against the heir, who had been forever discharged at law by the payment of the bond; and that if they had taken an assignment of the bond, and the heir had pleaded payment by the surety, he would have injoined him from making that de-fence.

And the court of appeals further declared, that in the administration of the assets of the estate, which were inadequate to the discharge of all the debts, the executors of Wayles, who at law would only have been simple contract creditors, should be considered as bond creditors. The effect of this arrangement was to give them a preference over simple contract creditors, who at law had a right to an equality, and thus to deprive the latter of the legal right to participate in the fund, which they would have enjoyed but for the interference of equity. So in Tinsley v. Anderson, it was declared, that, in the distribution of the funds, the sureties should be placed in the shoes of the creditors they had paid ; the-effect of which arrangement was to exclude from their legal equality, simple contract creditors, who, but for the interference of equity, would have enjoyed a full share of the fund.

*Now, in these cases, it is clear, the legal right of the simple contract creditors was invaded. For, if the fund was only sufficient to pay off the bond, they would get nothing; and if it was even more than adequate to pay off the bond, but not enough to pay off the simple contract creditors also, the bond would be discharged in the first place, and they would only get the residuum among them. A more marked disregard of the legal- privileges of parties, cannot well be conceived.

As to the position, that by taking the deed of trust, the sureties put off their character of creditors and assumed that of purchasers, I cannot understand that the opinion in Tate v. Eiggat, referred to, designed to go so far as to say, that a creditor by judgment, who takes a mere collateral security for the payment of his debt, thereby loses intirely the benefit of his judgment lien ; and unless the principle be extended thus far, it can have no influence upon this case. Be this as it may, I understand that the principle is not considered as settled by that case. I am of opinion, therefore, that there is no validity in this objection.

In the views I have taken of the sureties’ right of subrogation here, I have treated the claim of Kinney, as if it were a real and subsisting debt. But if we regard it otherwise; if, as I have shewn, Holloway was no debtor of Kinney ; then the question of subrogation is one between the sureties and their debtor alone, and not between the sureties and another creditor of that debtor. In this point of view, the case is divested of every difficulty. The existence of a debt from Holloway to Kinney is, indeed, the essential ingredient in every part of this transaction. Without it, the deed of trust to the sureties is unquestionable; without it, their right to subrogation cannot be contested; without it, there is no barrier to an elegit on Warwick’s judgment, though it may have run out of date; without it, the attachment of Kinney was illegal; without it, the decree in that case, was irregular; and without it, no decree could have *been properly entered against Holloway in the state of the cause appearing to this court.

I have not deemed it material, or proper, to examine all the objections to Kinney’s decree against Holloway, as there is no appeal from that decree. There is one, however, which ought not to be passed in silence, lest this court should seem to have disregarded it. I mean the decree for the sale of the land, not for payment only of the sum due, but for the deferred instal-ments also. The parties not having contracted for a mortgage, a mortgage could not have been decreed to be executed by Holloway. Yet this decree is,- uno flatu, both mortgage and foreclosure. The utmost that should have been decreed, was, that Holloway should execute his bonds for the instalments, and that the vendor’s lien should be retained for the security of them until payment.

The decree entered by the court, declared, that in the original cause of Kinney and wife against Holloway, no sufficient ground appeared, upon which Kinney and wife could proceed by foreign attachment against the absent defendant, Holloway; no debt appearing to Be due by Holloway to Kinney, but his demand depending upon the contingency of the execution of a deed by his wife for her land sold by her husband, which contingency might never happen, and did not appear to have as yet occurred: that, such being the case, whatever decree might have been rendered as between Kinney and Holloway (a matter of which this court had not cognizance, since no appeal from the decree in that cause, was before it), the appellants had a right to arrest the execution of the decree actually pronounced, at least so far as it respected the sale of Holloway’s proper moiety of the tract of 916 acres of land, devised by his uncle to him and his sister; and they had moreover a right to decree for the sale of Holloway’s moiety (either under Holloway’s mortgage thereof for their indemnity, or as standing in the place of Warwick-, so far as they had paid off and discharged' his judgments, or as entitled to compel ^payment thereof out of Holloway’s property thereby bound to satisfy them) for any sums which they might have paid, or be liable to pay, for Holloway ; of which an account ought to be taken : and that, therefore, the injunction to the execution of Kinney's decree against Holloway, of December 1823, ought to be reinstated and perpetuated. so far as respected the moiety of the tract of 916 acres ■ which belonged to Holloway as devisee of his uncle. Therefore, the chancellor’s decree was reversed with costs, and the cause remanded, to be further proceeded in, according to the principles here declared.  