
    *Bentley & als. v. Harris’s Adm’r.
    October Term, 1845,
    Richmond.
    (Absent Brooke, and Stanard, J.)
    1. Creditor and Debtor — Several Equally Liable— Remedy —Waiver.—Although a creditor, having remedies against several persons, each equally responsible to him, may proceed to enforce payment oí his debt from either, and is not bound to proceed against all, yet he waives this right, by convening all before the Court, and asking that the persons and subject of right chargeable with the debt, shall be compelled to pay it.
    2. Sureties — Order of Liability — Injunction Bond-Judgment. — A principal debtor in a judgment obtains an injunction thereto, and executes an injunction bond, with a third person as surety; the surety in the judgment not being a party to the injunction. Upon a dissolution of the injunction, the surety in the injunction bond is liable for the debt enjoined, before the surety in the judgment.
    3. Same — Two Injunction Bonds — Sureties Equally Liable. — The surety in the injunction bond being held insufficient, and another bond being executed with other sureties; upon a dissolution of the injunction, the sureties in both bonds, are equally liable.
    4. Same — Surety Leaving State — Ne Exeat Bond. — One of the sureties in the injunction bond being about to leave the State, the creditor in the judgment enjoined, obtains a writ of ne exeat against him; whereupon he executes a ne exeat bond with a surety, and conveys a tract of land in trust to indemnify his surety; and removes from the State and dies. The injunction being dissolved, the land is primarily liable, as among the sureties, for his proportion of the judgment debt and damages; and his surety is liable for any deficiency.
    5. Fraudulent Conveyances — Consideration—.Marriage. —An embarrassed debtor makes a voluntary conveyance of personal property, to an unmarried female. Afterwards, upon her marriage, the property is settled to the use of the wife for life, and at her death to her children. It is not liable for the debts of the first donor.
    In the year 1807, Depp, as the administrator of Harris, recovered two judgments against William Bentley, and Henry Moss, as his surety, one for ^614. 8. 4. to be discharged bj' the payment of £307. 4. 2. with interest thereon from the 21st of March 1804, till paid, *and costs; and the other for 100 dollars, with interest from the ISth of October 1805, till paid, and costs. William Bentley then enjoined the judgments, and executed an injunction bond with ■ Jesse Tucker as his surety. Tucker being insufficient security, another injunction bond was executed by William Bentley, with John W. Bentley and Horatio Turpin as his sureties. Pending this injunction, John W. Bentley died, and Joseph R. Bentley qualified as his administrator with the will annexed; and Horatio Turpin being about to remove from the Commonwealth, Depp, the administrator of Harris, sued out a writ of ne exeat against him; and he gave a ne exeat bond, with William A. Turpin as his surety; and for the purpose of indemnifying his surety, he executed a deed by which he conveyed to Colin M’Rae and Samuel Taylor a tract of land in the county of Powhatan, in 'trust, to be sold, and the proceeds applied to the indemnity of William A. Turpin. This bond, though made an exhibit with the bill in this cause, is not in the record, but is recognized in the deed to M’Rae and Taylor, and its execution admitted in the answer of William A. Turpin. Horatio Turpin re-' moved to Kentucky, and died there, leaving several children, his heirs and distributees.
    In 1809, Henry Moss, the surety of William Bentley, made a deed by which he conveyed sundry slaves to Thomas Turpin and Francis Harris, in trust for Judith A. Bentley and Henry M. Bentley. And in 1825, Judith A. being about to be married to James Bigon, she, with his assent, conveyed the slaves given her by Henry Moss, to trustees for her separate use for her life, and at her death to the children of the marriage. Subsequently, Moss and William Bentley died; the latter wholly insolvent.
    The injunction obtained by Bentley having been dissolved in 1827, Depp, as the administrator of Harris, then instituted this suit in the late Chancery Court in *Richmond, in which, after stating the above facts, he convened all the parties before the Court, and prayed the Court to decree his claims to be paid by the persons liable., and for general relief.
    Bigon and wife, and William A. Turpin answered the bill; the first insisting, that the deed from Moss to trustees for the benefit of Mrs. Bigon, was on adequate consideration; and that this property should not be held liable until the plaintiff had exhausted his . remedies against the sureties in the injunction bonds, and the other securities that the creditor had obtained. And William A. Turpin insisting, that the effects of Horatio Turpin should not, nor he as the surety of Horatio, be charged until the estates of-alt those primarily liable, and especially that of Henry Moss, should be exhausted.
    Mrs. Judith Bigon and the plaintiff having departed this life pending the cause in the Court below, it was revived against her children, and in the name of Royal Martin, the executor of Depp, as plaintiff. And then the cause coming on to be heard'in July 1836, upon the bill, answers and exhibits, the Court held that the property conveyed by Henry Moss, bj his deed of 1809, was first liable for the payment of the judgments obtained by the plaintiff against William Bentley; and made a decree, directing, that unless the holders of that property should pay these judgments, principal and interest, within sixty days, the slaves conveyed by Moss for the benefit of Judith Bentley and her children, should be sold. And the Court farther decreed, that unless William A. Turpin should pay the amount of the damages on the injunction within thirty days, the trustees M’Rae and Taylor should sell the land conveyed to them, by Horatio Turpin.
    From this decree the surviving trustee, and the cestuis que trust under Moss’s deed of 1809, applied for and obtained an appeal to this Court.
    *Stanard, for the appellants, insisted, that instead of charging the property that had been conveyed by Henry Moss by the deed of 1809, (even conceding that the conveyance was purely voluntary,) in exoneration of the subsequent sureties in the injunction and ne exeat bonds, those subsequent sureties ought to have been charged in exoneration of the property so conveyed; for which he referred to Parsons v. Briddock, 2 Vern. R. 608; Wright v. Morley, 11 Ves. R. 12; Douglass v. Fagg, 8 Beigh 588; Givens v. Nelson, 10 Beigh 382.
    He farther insisted, that the rights of the grantees under the deed of Moss, were protected from the claims of the plaintiff, by the marriage settlement, entered into on the marriage of Judith Bentley with James Bigon; and on this point he referred to Huston v. Cantrill, 11 Beigh 136.
    Rhodes and Taylor, for the appellees,
    referred to the case of Hodgson v. Shaw, 8 Cond. Fng. Ch. R. 338, for observations on Parsons v. Briddock; and insisted that the other cases cited by the appellants’ counsel on the first point, were not applicable to the present case. They stated the rule to be: that the sureties of a debtor are entitled to be subrogated to the rights of the creditor and of all the sureties of the debtor, against the property of the debtor, and against property which he may lawfully control, and which he has appropriated to the satisfaction of the debt. The cases of Parsons v. Briddock, and Givens v. Nelson, may be considered as having extended this doctrine; but they have added this only, that the sureties of a debtor are entitled to be subrogated to the rights of the creditor, against such subsequent sureties of the debtor as shall have undertaken for the debtor alone; and not for any liability, in which his former sureties were associated with him.
    
      They insisted, that in this case, though Moss was not a party to the injunction, it enured to his benefit, as the ^judgment was joint against Bentley and himself; and so must have been the execution thereon; and so would have been the relief if the injunction had been sustained.
    They admitted, that marriage is a valuable consideration, but they insisted, that in this case it appeared on the face of the deed, that there was no consideration for the conveyance by Moss, who was then largely in debt; and that the property being settled on the marriage to the separate use of the wife for life, and then upon her children, it coulifnotbe held that this property entered into the consideration of the marriage, so as to protect it from the claim of Moss’s creditors; and the3referred to Atherly on Marriage Settlements, 241-2, 27 Daw Bibr. 12S--6.
    
      
      Judge Stanard had been counsel in the cause.
    
    
      
      Sureties — Contribution.—See principal case cited in Harnsberger v. Yancey, 33 Gratt. 540, and foot-note to Preston v. Preston, 4 Gratt. 88. The principal case is cited in Whitlock v. Gordon, 1 Va. Dec. 349.
      Injunctions — Objection to Decree of Dissolution. — See principal case cited in Bloss v. Hull, 37 W. Va. 510, and foot-note to Michaux v. Brown, 10 Gratt. 612. See monographic note on “Injunctions' appended to Claytor v. Anthony, 15 Gratt. 518.
      Marriage — Consideration—Creditors of Grantor, — In Huston v. Cantrill, 11 Leigh 136, it was held that a voluntary conveyance, made by a man greatly indebted, to his daughter, is rendered good and available against creditor's of the grantor upon the subsequent marriage of the daughter, who thereupon was to be regarded a purchaser by relation for a valuable consideration. This decision was cited and followed in the principal case. See the principal case cited in Herring v. Wickham, 29 G ratt. 637. See also, foot-note to Herring v. Wickham, 29 Gratt. 637.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that although as a general rule a creditor having a right to resort to different persons, each equally responsible to him, ought not to be delayed in the collection of his debt from all or either of his debtors until the equities between the different debtors are adjusted, in this case, the plaintiff has waived any such right, by having convened the parties, and asking that his debt might be charged upon the subjects and parties, as of right they should be charged.

The Court is further of opinion, upon the authority of Parsons v. Briddock, 2 Vern. R. 608; Wright v. Morley, 11 Ves. R. 12; Douglass v. Fagg, 8 Leigh 588; and Givens v. Nelson, 10 Beigh 382, that the security in the injunction bond, executed upon the award of an injunction at the instance of the principal debtor alone, should be first charged in exoneration of the original security, who was no party to the injunction.

The Court is further of opinion, that the securities in the first and second injunction bonds, the order having required additional security, and the bonds being in the *usual form, stand equally liable, as much so as if they had been parties to the same bond.

The Court is therefore of opinion, that the plaintiff should have had a decree in the first instance against the representatives of Jesse Tucker, John W. Bentley and Horatio Turpin, if any, and against the effects of said Horatio Turpin, in the hands of said William A. Turpin.

The Court is further of opinion, that as by the deed of trust executed by Horatio Turpin to S. Taylor and C. M’Rae, to indemnify the said William A. Turpin as his security in the ne exeat bond, no sale was authorized until the liability of such security in the ne exeat bond was ascertained; and the said bond not being filed, or any proof exhibited in relation thereto, or the breach of the condition thereof, the case is not in a condition to pronounce any opinion as to the liability of the security in the ne exeat bond; nor to subject the land conveyed by the deed of trust for the indemnity of "such security. But the Court is of opinion, that if upon the exhibition of the ne exeat bond, or other proper evidence, the liability of the security in the ne exeat bond should be ascertained and fixed, that in that event, the land so conveyed in trust should be subjected to the charge, and the said security in the ne exeat bond should be held liable for any deficiency.

The Court is further of opinion, that if no liability can be fixed on the security in the ne exeat bond, the said land, though not liable to be sold by virtue of the conveyance in trust to indemnify such security, yet if the equitable title has continued in said Horatio Turpin, and descended to his heirs, the same could be subjected in a proper proceeding against said heirs, as absentees, to charge the land descended to them, for a debt of their ancestor binding his heirs.

The Court is further of opinion, that the representatives of said Moss, the original security, and those claiming under him as volunteers, are ultimately responsible *for the penalty of the original debt, exclusive of damages and costs incurred in prosecuting the injunction.

The Court is further of opinion, that, as it respects the conveyance to Judith A. Bentley, the principle established in Huston v. Cantrill, 11 Leigh 136, must govern the case; and as the children provided for in the settlement, took as purchasers for a consideration deemed valuable in law, the property conveyed cannot, in their hands, be charged with the debts of the first grantor, the said Moss.

The decree of the Court below is therefore reversed with costs, and the cause is remanded to be finally proceeded in according to the principles above declared.  