
    *Mayo v. Tomkies.
    Decided, March 8th, 1820.
    1. Mortgage— Foreclosure — Parties.—In a suit in Chancery, to foreclose a mortgage, against purchasers claiming under a devisee of the mortgagor, not ODly the persons from whom they immediately derive their title, but also the said devisee, or his heirs, and another devisees of the equity of redemption, ought to he made parties; notwithstanding such equity was devised to some of them upon conditions; for whether such conditions were complied with, can not be legally investigated, until they are made parties.
    2. Same — Same—Same.—It is not sufficient to make a person a party as Executor, and to call upon him to answer as such, if he be interested in the controversy as a devisee, .or should be called upon to answer as to his individual interest or ■ transactions.
    3. Same — Same—Same.—where lands devised to be sold, have been sold by one of several executors, all the executors ought to be parties to a suit to foreclose a mortgage previously existing upon those lands. So. also, all the purchasers; in order to be subjected to a rateable contribution to satisfy the mortgage.
    4. Chancery Practice — Decree against Purchasers of Mortgaged Land — Case at Bar. — A decree against purchasers of a tract of land incumbered by a mortgage to secure the payment of an annuity, ought to provide, that so much of their lands, respectively, be sold, as will be sufficient to pay their proportions of the sum remaining due, and unsatisfied by a sale of so much of the tract as was retained by the vendor, and liable to be sold; except so far as they shall pay their respective proportions of such debt, and agree to hold their lands subject to the future decree of the Court, for their proportions of any sums growing due to th e plaintiff thereafter.
    5. Mortgage — Realty and Personalty — Rights of Purchasers of Land. — A mortgagee of lands and slaves, can not be compelled to resort to a sale of the slaves before he shall disturb the possession of bona fide purchrsers of the lands from the mortgagor: but the decree against such purchasers ought to permit them, after satisfying the claim n of the mortgagee, to seek indemnity out of the mortgaged slaves, or the estate of the mortgagor, or any other person liable to such demand, so far as the mortgagee might be able to charge such party, or otherwise.
    This was a suit (transferred from the late High Court of Chancery to the Superior Court for the Williamsburg District,) originally instituted in the year 1792, by Charles Tomkies and Anne his wife, (late Anne Dixon daughter of Thomas Dixon deceased,) and John Blair her surviving trustee, for the purpose of foreclosing a Mortgage upon a tract of land, containing by estimation 3300 acres, being in the Counties of Hanover and Louisa, and also sundry slaves; which Mortgage was executed on the 3d of November 1767, by the Rev. John Dixon of the County of Gloucester and Roger Dixon of the town of Fred-ericksburg, to secure the payment of sixty pounds sterling per annum, “to the said Thomas Dixon, his heirs, executors, administrators, or assigns, during his life and the life of his daughter Anne, or during the life of the longest liver of them.” The said Mortgage was duly recorded in the General Court.
    *By a subsequent Deed, dated October 17th, 1774, Thomas Dixon conveyed the said annuity to the Rev. John Dixon and John Blair of Williamsburg, in trust, for the benefit of himself during his life, -and of his daughter Anne after his death, for her separate use, so as not to be subject to the control of any husband.she might have. This deed was recorded in Gloucester County Court, Dec. 1st, 1774.
    The Rev. John Dixon made his Will on the 28th of January 1773, containing, among other devises, the following: “X give unto my son Thomas Dixon my land on Beaver Creek in the County of Louisa; also half the tract of land which contains about three thousand acres on Taylor’s creek in the said County, which I sold for the payment of my father’s debts, and, jointly with my brother Roger Dixon, purchased for the sum of four hundred and twenty-five pounds: as now the title to the whole is in me, and of one half after the purchase, that half I bequeath to my son Thomas, after a mortgage, upon it and the slaves thereon, to Captain Thomas Dixon, is satisfied; to have and to hold to him and his heirs forever. Item, I give to my nephew Roger Dixon the other half of the before mentioned tract on Taylor’.s Creek, after the mortgage is cleared off: provided the estate of my brother Roger Dixon shall pay one half of the debts to the creditors of my said father; otherwise, his family has not any just claim to any part of the land on Taylor’s Creek aforesaid; and, in the case of any deficiency of the payment of one full half of the debts of our late father John Dixon by the estate of Roger Dixon, I then give the whole tract on Taylor’s Creek, when clear of mortgage, to my son Thomas Dixon, to have and to hold to him and his heirs forever, instead of my nephew Roger Dixon, and his heirs forever.”
    It was stated in the Bill,, that Roger Dixon the nephew never accepted the devise of one half of the mortgaged land, nor performed the condition on which it was to-vest; and that, some years since, he left this Country and went to parts unknown, since when he had never been *heard of by any of his friends or connections in this Country, as far as the plaintiffs knew or believed; so that there was srreat reason to presume he was dead: that Thomas Dixon the younger (the other devisee) entered into some contract with John Dixon the younger, concerning a sale to him of the whole of the said mortgaged land, the precise terms of which were unknown to the plaintiffs, who were informed, however, that no legal conveyance was made, but that the said John Dixon (with consent of Thomas) took possession of said land, and exercised the right of ownership over it, and, moreover, admitted himself chargeable with the annuity aforesaid.
    The only defendants to this Bill were Thomas Dixon the younger, surviving executor of the said John Dixon the younger, who was executor of John Dixon the elder, and also John Dixon, Lucy Dixon, Elizabeth Dixon and Signora Dixon, children of the said John Dixon the younger, against whose real estate the plaintiffs requested farther relief, in case the mortgaged premises should prove insufficient to satisfy their whole demand.
    The answer of the defendant Thomas Dixon admitted that Roger Dixon the dev-isee never entered on the premises devised to him, but alledged that he had been heard of within two years, and was not known to be dead. The respondent also admitted a contract to have been made, whereby he sold the land to John Tabb, who sold it to John Dixon the younger. He contended that the annuity was nearly, if not fully, paid up, to the death of the said John Dixon his testator; but, if not, he had no assets to discharge what might remain due.
    Chancellor Wythe, in May 1799, directed a Commissioner to state and report an account of money due for an annuity claimed by the Bill; in obedience to which order, a Report was made. In April 1803, the suit abated as to the plaintiffs John Blair and Charles Tomkies, and the defendant Thomas Dixon, by their deaths; and, on the motion of Anne Tomkies the surviving plaintiff, who filed a Bill of revivor, a subpoena was awarded against Mildred Dixon widow, devisee and executrix, of the said Thomas Dixon, and his children, coheirs and devisees,
    *The said Anne Tomkies afterwards filed a supplemental Bill, and also another amendatory thereto, making John Mayo of the City of Richmond, and sundry other persons, charged as purchasers of the mortgaged lands, from the said Thomas Dixon the younger and his brother John Dixon, additional defendants ; representing that the whole lands were not more than sufficient to pay the arrears of the annuity, with interest, on each sum annually due, from the time when it should have been paid, which the plaintiff demanded as just and reasonable; and praying that the persons named should set forth on oath and say, how many acres of land, part of the said tract, each and every one of them was possessed of; when he became so possessed, and in what way; what was the value per acre of the land possessed by each, comparing it with the whole tract; what was the value of the whole tract per acre, and of the annual profits of the whole, and of each separate tract as separately possessed? that a decree be made for sale of said lands, and payment of her whole claim with interest, according to the rules and principles of Equity, against one, or more, or all of the defendants, as might be thought proper.
    Answers were put in by John Mayo and the other purchasers; from which it appeared that John Mayo the elder, father of the said John Mayo, bought the lands in question, in the year 1779 or 1780, of John Dixon the eldest son of the Rev. John Dixon; the legal title to which, being in Thomas Dixon brother of the said John, was by him conveyed by a Deed with warranty to the said John Mayo the elder, who departed this life in January 1786, having by his Will authorized his executors, who were William Mayo, John Berkeley, William Smith and John Mayo, to sell the said lands; that, under the authority so given, several parcels thereof were sold to the other purchasers, all of whom, (so far as made defendants,) as well as the defendant Mayo, insisted that the purchases by themselves, and by those under whom they claimed, were made bona fide, without any knowledge or suspicion of any out-standing incumbrance upon the land. They *also relied on the length of time before the suit was brought, and other circumstances, to induce a presumption that the claim was satisfied; and contended, (if it was not,) that the representatives of John Dixon the younger and Thomas Dixon should be brought before the Court, and, to prevent circuity of action, compelled to bear the burthen, which ultimately must fall on them; and that, at least, the slaves, said to be mortgaged, as well as all tie personal effects of John Dixon, should be first applied to extinguish any balance remaining due.
    Mildred Dixon widow and devisee of Thomas Dixon filed an answer referring to his answer formerly filed, as containing a true statement of facts, in relation to any interest she might be presumed to have. She farther said she was informed that Roger Dixon was still alive, residing in the district of Natchez.
    John Dixon, only son and one of the heirs of John Dixon the younger, by his answer, rendered an account of the real estate devised to him, shewing that he had paid, and stood responsible for debts of his father to a greater amount than the value of the said estate; and that neither his sisters nor mother received or succeeded to any property under his father’s Will.
    The cause was heard at Williamsburg in April 1812, as to the defendants John Mayo and others purchasers of the land incumbered by the mortgage, and as to the defendant Mildred Dixon ; whereupon, rejecting the Commissioners’ report as to the interest charged therein, the Court decreed, that, unless the defendants should, on or before the first day of November then next ensuing, pay to ,the plaintiff the sum of 21361., current money of Virginia, being the arrears of the annuity due from the first day of January 1782, with interest at the rate of five per centum per annum from the 23d day of April 1812, (the date of the decree,) ’till paid, and all costs and charges attending the prosecution of this suit, the defendants, their heirs, and all others claiming under them, should be from thenceforth barred and foreclosed &c., and that certain Commissioners (named . in the decree) or any *three of them, should, in that event, after giving six weeks previous notice in one of the Richmond Newspapers, expose to public sale, by auction, for ready money, that part of the land, in the mortgage mentioned, which remained in the possession of the defendant John Mayo, or so much thereof as would satisfy and pay the said sum of 21361., with interest and costs, as aforesaid, and, out of the proceeds of the sale, pay unto the plaintiff her said debt, interest and costs; and the surplus, if any, after deducting the expences attendant thereon, pay to the defendant John Mayo: and, in case that part of the land in the possession of John Mayo should not be sufficient &c., that they, in like manner, should, after giving notice &c., sell that part of the said tract of land of which the other defendants were possessed, &c. ; unless the said defendants, or any of them, should, on or before the day of sale, pay unto the said Commissioners, their respective proportions of the balance of the plaintiff’s debt, interest and costs, remaining unsatisfied by the sale of Mayo’s part; having ascertained by satisfactory evidence the values of their several tenements, and the proportions which such values would bear to such balance; and make report, &c.
    The Commissioners reported, a sale of Mayo’s land, in obedience to the decree; the proceeds amounting to 9491. 10s. Od; a statement of the debt, interest and Costs, including a Commission of five per centum to themselves upon the amount; shewing the total to be24061. 11s. 3d., and balance, to be provided for by a farther sale, 14571. Is. 3d. ; — an apportionment made by them of that balance among the other purchasers, shewing the sums for which they severally were responsibleand, finally, an account of sales of those lands; on the face of which it appeared, that the land of William Henderson one of the defendants, was bought, by the Commissioners themselves, for the sum of 2091. 14s. 11⅛&.
    
    Exceptions were taken to this Report; 1st, because the said Commissioners were directed by the decree to sell that'part of the land in the possession of John Mayo, in *the first instance; when, in fact, none was in his possession, for what remained unsold was' in the possession of the executors of his father, of whom he was one; and, although it was the obvious duty of the Commissioners to state in their advertisement the quantity of the land, for the purpose of inducing monied men to attend as bidders, they failed to do so: — 2d, because the said Commissioners proceeded to sell, when apprised that the . defendant Mayo intended to appeal from the decree; which he was prevented from doing, in the first instance, by not knowing there was a decree, until after the period, allowed him for giving the appeal bond, had elapsed: 3d, because, in selling the residue of the said lands, they omitted several parcels which should have been contributory according to the decree; and, also, because they made the allotment, and gave no notice thereof ’till the day of sale: 4th, because they became themselves purchasers at the sale under the decree, which purchase was illegal and void: and, 5th, because they charged a larger sum for their own commissions, than ’“■as a reasonable compensation for their trouble.
    The Chancellor overruled the 1st, 2d, 3d, and 5th exceptions, but, sustaining the 4th, decreed that the sale of William Henderson’s land be set aside, and that, unless, on or ■ before a day appointed by the decree, the said Henderson should pay to the said Commissioners the sum of 2091. 14s. llMd, they should again sell the said land as before, and pay the said sum to the plaintiffs; and that the said Commissioners should make a deed without warranty, to the said Henderson, if he should pay the said sum, or to the purchaser if a sale should be made. The rest of the report was confirmed, and the Commissioners were ordered to pay to the plaintiff 2C821. 4s. 6%d. ; (being the sum due after deducting Henderson’s proportion:) to execute deeds without warranty to the purchasers; and, after paying all ex-pences of carrying the decree of April 25th, 1812, into effect, to pay to the defendants the surplus, if any, in proportion to their respective over advances; and make report, &c.
    *From this decree the defendant John Mayo appealed.
    
      
       Mortgages. — See monographic note on "Mortgages” appended to Eorkner v. Stuart, 6 Gratt. 197.
    
    
      
       Same — Foreclosure—Parties,—All the authorities agree that where the court is foreclosing a mortgage of real estate in fee, or selling land conveyed in fee by a deed of trust, which is similar, the heir or devisee of the mortgagor is an indispensable party. George v. Cooper, 15 W. Va. 674, citing principal case. See principal case also cited in Vance V. Kirk, 29 W. Va. 355, 1 S. E. Rep. 726.
    
    
      
       Debts of Decedent — Apportionment.—See principal case cited in Lewis v. Overby, 31 Gratt. 620.
      Judgment — Bill to Subject Lands of Debtor and Securities to Apportionment. — See principal case cited in Horton v. Bond, 28Gratt. 826; Nat. Bank v. Bates, 20 W. Va. 222.
    
   The following was the opinion of this Court.

The Court is of opinion that Roger Dixon, to whom a moiety of the Equity of redemption of the mortgaged land in the bill mentioned was advised by John Dixon on certain conditions, ought to have been made a party to this suit; because, if those conditions were complied with by the representatives of his father Roger Dixon, or by himself, (and whether they were or not, can not be investigated until he is made a party,) he would be devisee of the equity of redemption of the said moiety, and entitled to redeem the same, by payment of a moiety of the appellee’s claim; and as, in redeeming, he would not be permitted to disturb the purchasers under Mayo, in their possession, except so far as the unsold lands should be insufficient to make good his moiety, these questions ought first to have been settled, preparator3r to a final decree.

The Court is farther of opinion, that, as Thomas Dixon son of the Revd. John Dixon was an unconditional devisee of the equity of redemption in one moiety of the mortgaged lands, and conditionally so of the other, that moiety certainly, and possibly the other, has descended to his children and heirs at law; and, although the said Thomas Dixon was made a party to the suit, as the Executor of his brother John Dixon, and answered as such, and in that answer admits a sale to have been made by him of the premises to John Tabb, who sold to his brother John Dixon, yet he is not made a party, nor called on to answer, as to his individual interest or transactions ; nor does it appear that any adequate conveyance was made by him of his said equity, although it is stated, in the answer of John Mayo, that a Deed was made to his father John Mayo the elder by him, the terms of which, however, are not stated. His heirs therefore ought to have been before the Court, as well to contest the claim of Roger Dixon, as that of Mayo, and those claiming- under him, so that the rights of all parties might have been settled in the final decree.

"The Court is farther of opinion, that, although the Will of John Mayo the elder is not in the record, yet it being averred, in the answer of the appellant John Mayo, that he was only one of four Executors of the said Will, and, although he admits that he himself made the sales, yet the other Executors may be interested even as to those lands, and most probably were so in the lands remaining unsold, and therefore ought to have been parties, in order to a final and full adjustment of the title: — so too, if there were other purchasers under Mayo, in possession of any part of the land in question, and who were not brought before the Court in order to be subjected to a rateable contribution, as is stated in the exceptions to have been the case,) they ought to ¡have been made parties.

The Court is of opinion farther, that, as to the purchasers under Mayo, the Decree ought to have provided that so much of their lands respectively should be sold as would be sufficient to pay their proportions of the annuity due to the appellee, and unpaid by the Executors of Mayo, or unsatisfied by the sales of lands remaining in them, and liable to be sold; except so far as those purchasers shall agree to pay and actually pay their respective proportions of such balance, and to hold their lands subject to the future decree of the Court for their proportion of any sums growing due to the appellee thereafter.

The Court is farther of opinion, that, if the whole annuity due and growing due to the appellee, shall thus be paid and secured to be paid, then the Executors of Mayo, and the purchasers under them, ought to be permitted to proceed in any way they may be advised to be proper, to seek indemnity out of the mortgaged slaves, or from the estates of the oiiginal mortgagors, or of any other person or persons, who, they may be advised, are liable to such demand, either so far as the appellee might be able to charge such party, or otherwise.

The Decrees are therefore reversed with costs, and the cause remanded, to have the proper parties made, and to be proceeded in to a final decree according to the foregoing principles.  