
    *Richeson v. Richeson & als.
    January Term, 1846,
    Richmond.
    i. Attachment — Deed Executed to Secure Creditors before Return Day of Attachment — Priority—Case at Bar. — In May 1835, a subpmna in chancery is sued out against an absent debtor and home defendants, returnable to July rules. The subpoena is returned executed on the home defendants, but the date of its service upon them is not stated. After the issue of the subpoena, but before the. return day thereof, the debtor executes a deed to secure certain creditors which is duly recorded: Held. The attachment is to be postponed to the deed.
    a. Same — Same—Same.—The bill filed by the attaching creditor sets up a claim as vendor of a tract of land conveyed in the deed, for the purchase money : , Held. The lien of the deed has preference.
    On the 25th of May 1835, Jesse Richeson sued out of the Circuit Superior Court of Amherst county, a subpoena in chancery against his son Varland Richeson, and the representatives of Anthony Rucker deceased, returnable on the first Monday of July then next ensuing; on which subpoena was the following endorsement: ‘ ‘To attach the moneys, debts and effects of the defendant Varland Richeson, in the hands of the other defendants, so that they be restrained from paying, conveying away, or secreting the debts by them owing to, or the assets in their hands of the said Varland Riche-son, until the further order of the said Court. ’ ’
    The subpoena was returned executed to Rucker, Dawson and Garland, the representatives of Anthony Rucker deceased; Varland Richeson not found: and it was without date.
    It does not appear when the subpoena was executed, nor when the bill was filed.
    The bill charges that Varland Richeson, “who has removed beyond the limits of this State, and is not a resident of the same,” was indebted to the plaintiff in two sums of 388 dollars 50 cents each, due in 1832 and 1833, for unpaid purchase money of a tract of land sold to him in 1831, and conveyed to him in 1832. Also, *that no collateral security was given to secure the purchase money, which the plaintiff therefore considers to be a lien on the land. It charges also, that Varland Richeson was indebted to the plaintiff in the further sum of 264 dollars 33 cents. And the obligations are produced for these sums of money.
    The bill also charges, that the said Var-land Richeson was entitled to one ninth part of one sixth part of the estate of Anthony Rucker deceased.
    He prays, that Rucker’s representatives may answer his bill, and that the fund in their hands may be subjected, &c., and that Varland Richeson may be “compelled to pay to him such purchase money, or that such land may be exposed to sale in satisfaction thereof. ’ ’ And he concludes with a prayer for general relief.
    July 1st, 1835, the plaintiff made oath, in the clerk’s office, that “Varland Richeson has removed from the Commonwealth of Virginia.”
    On the 5th of September 1835, leave was given to the plaintiff to amend his bill and make new parties; and he thereupon amended it, by stating, “that on the day of , and since the commencement of this suit, Varland Richeson executed a deed of trust on the foregoing tract of land, and his interest in the estate of Anthony Rucker, to a certain Don T. C. Peters, to secure debts therein professed to be due to John T. Hunt, Patrick Matthews, and Robinson & BJlliott;” and he calls on them, as defendants, to answer and say what interest thej have in said subject, and why his prior lien should not be executed? And he asks such decree as may be right in the premises.
    On the 8th of September 1835, an order was made, purporting to be “by the consent of the parties, by their counsel,” directing the sheriff, as a commissioner, to sell the land and report to the Court.
    On the 2d November 1835, at rules, “came the defendant Varland Richeson by his counsel, and tiled his answer to the plaintiff’s bill.” This answer appears to *have been sworn to by Varland Richeson, the absent defendant, in Amherst county, on the 3d of September 1835, just before the “consent order” to sell the land.
    This answer admits that the defendant owes the purchase money of the land, and had given no security; also, the justice of the other claim.
    ‘ ‘He admits, that at the time of the. suit being brought he had left the county of Amherst for some of the western States.”
    “He is willing that the Court should decree the sale of the said land, for the payment of the said purchase money, and his interest in said Anthony Rucker’s estate, for the payment of the balance of said purchase money, (if any,) and the balance of the last mentioned debt.” About the time of writing this answer, the following agreements were entered into:
    “We consent that this suit may come on' for trial at the present term, September 1835.
    Varland Richeson,
    Jesse Richeson.”
    “We further consent, that the land may be decreed to be sold after reasonable notice, without the usual time allowed, for the payment of the debt, believing it will be for the interest of both parties for it to be . sold this fall.
    Varland Richeson,
    Jesse Richeson.”
    On the 2d April 1836, the defendants to the amended bill, viz: Peters, the trustee in the deed of June 8th, 1835, and the creditors secured by that deed, to wit: Hunt, Matthews, and Robinson & E)tliott, filed their respective answers. The answers of the creditors are all to the same effect, and, mutatis mutandis, in the same words.
    They all rely on the deed of trust of June 8th, 1835, as a valid security for their debts, against all the pretensions of Jesse Riche-son.
    *They all deny that Varland Riche-son “has ever removed beyond the limits of this State, or was ever a non-resident of the same.”
    They do not admit that any part of the money claimed by Jesse Richeson from Varland Richeson, was unpaid purchase money of land sold to Varland Richeson; and that he ever sold land to his son at all,- and call for full proof.
    They do not admit that Varland Richeson was indebted to Jesse Richeson at all, and call for full proof.
    They all insist that they trusted Varland Richeson on the credit of the land, occupied by him as his own, for several years, and had no knowledge or notice whatever, up to the time of the execution and recording of the trust deed, and after, of any claim of Jesse Richeson against Varland Richeson.
    No evidence is to be found in the record, on any of these points, except what has hereinbefore been stated. There is no evidence, especially, that Varland Richeson was an absent debtor when this suit was instituted, except the affidavit of the plaintiff. It is expressly denied; and he was certainly in Monroe county, Virginia, on the 8th of June, where he executed the trust deed; and he was in Amherst county in September, and answered the bill.
    None of the representatives of Anthony Rucker ever answered, nor was any step taken by the plaintiff to ascertain the amount of Varland Richeson’s interest in
    On the 11th September 1838, the Court, by consent of the parties, by their counsel, annulled the sale which had been made by the sheriff, as a commissioner, under the consent order of September 1835, and directed a new sale to be made by the sheriff, as a commissioner. The land had been sold to Jesse Richeson, the plaintiff, for 170 dollars.
    *On the 9th April 1839, the sheriff having reported a sale of the land, for 201 dollars, to which there was no exception, the Court confirmed the same, and decreed, that the bill of the plaintiff be dismissed, and that he pay to the defendants, Varland Richeson, Don T. C. Peters, John T. Hunt, Patrick Matthews and Robinson & Elliott, their costs by them expended in defending the suit.
    Prom this decree Jesse Richeson obtained an appeal to this Court.
    Thompson, for the appellant.
    The Attorney General, and Cooke, for the appellees.
    
      
      Deed to Secure Creditors — Antecedent Debts — Consideration. — On this subject, see the principal case cited in foot-note to McClanachan v. Siter, 2 Gratt. 280 ; foot-note to Evans v. Greenhow, 15 Gratt. 153; West Mining, etc., Co. v. Peytona Coal Co., 8 W. Va. 441; Kimmins v. Wilson, 8 W. Va. 591.
    
   By the Court.

Affirm the decree.  