
    Lewisburg.
    Greer v. Wright.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    
    A defendant in an action for seduction, anticipating a judgment against him, transfers two bonds which he holds on S and G, and also his interest in the real estate of his deceased father, to a brother, for the purpose of evading the payment of the anticipated judgment. A judgment is recovered against him ; and he takes the oath of an insolvent debtor, and surrenders nothing. The plaintiff then files a bill against his debtor and his brother, and S and the high sheriff, to set aside said transfers, and to subject the property to satisfy said judgment. Held :
    1. The said transfers will be set aside, and the property will be subjected to satisfythe judgment.
    2. There should be an account of the personal estate of which the father of the debtor died possessed, in order to ascertain what portion said debtor is entitled to, and how it has been disposed of
    3. G should he made a defendant, and the decree should be against <S and G respectively, for the amount due upon their bonds, if the same is still liable to the satisfaction of the plaintiff’s judgment.
    4. If the brother to whom the bonds were transferred, has received any portion thereof, or if-by his improper acts or negligence he has rendered himself chargeable with any portion of said bonds : and the amount received under the decree against S and G is not sufficient to satisfy said judgment and the costs of this suit, then there should be a decree against him for the amount for which he is chargeable.
    5. If the said judgment and the costs of this suit is not satisfied from the said bonds and the debtor’s interest in the personal estate of his deceased father, then his interest in the real estate should be decreed to be sold.
    6. It is error to make a joint and personal decree against the debtor and his brother for the amount of the judgment and the costs of this suit.
    7. It is error to direct the debtor and his brother to surrender the bonds of S and G to the sheriff. They should be parties to the suit, and the decree should be against them, for the amount they respectively owe, if the same is liable for the plaintiff’s claim.
    
      In November 1840, Benjamin Wright instituted a suit in equity in the Circuit court of Jackson county, against John and Samuel Greer, Nehemiah Smith, and Ephraim S. Evans, late high sheriff of the county, for the purpose of setting aside certain assignments of bonds, and conveyances of real and personal property, made by John Greer to Samuel Greer, on the ground that they were made with intent to defraud the plaintiff. The bill charged that in April 1840, the plaintiff recovered a judgment, in an action at law in the Circuit court of Jackson county, for 700 dollars damages and 55 dollars 68 cents costs, against John Greer. That on this judgment John Greer was taken in execution, and took the benefit of the act for the relief of insolvent debtors, without surrendering any property in his schedule. That at the time he took the oath of insolvency, he had due to him from Nehemiah Smith a debt of 526 dollars, for which Smith had executed to him his bond in May or June 1839; and that John Greer had, to defraud the plaintiff, assigned the bond to his brother Samuel Greer, a short time before the date of the plaintiff’s judgment against him. That George Gillaspie also owed to John Greer 200 dollars, or more, and the same was, in like manner and for the same purpose, assigned to Samuel Greer. That John Greer inherited from his father a share of a valuable farm lying in the county of Mason, and that he was entitled to a distributive share of the personal estate; and that he owned a tract of land containing one hundred acres, more or less, lying in Mason county, contiguous to the land of which his father died seized. That the plaintiff does not know what the said John Greer has done with his interest in the aforesaid lands and personal property, but believes that he has passed it over to Samuel Greer ; certainly he did not surrender it in his schedule. That all the said property, the plaintiff believes, belonged to John Greer at the time he took the benefit of the act for the relief of insolvent debtors; and that the same thereupon vested by operation of law, in Ephraim S. Evans, the then sheriff of Jackson county. And that Samuel Greer, who claims the dept due to Smith, is a young man, and had no means of paying a fair consideration for that, and much less for the other property transferred to him.
    The two Greers, Smith the debtor, and Evans the sheriff, were made defendants, and the prayer of the bill was that the debts and the other property aforesaid might be subjected to the payment of the plaintiff’s judgment, and for general relief.
    
      Samuel Greer answered the bill. He said that the debt of Smith to John Greer was sold to Samuel on the 3d of September 1839, at a discount of 50 dollars, and that the money was paid. That there were two notes of Gillaspie's, which were also sold to Samuel Greer on the 4th of December 1839, and the full amount thereof, deducting interest, was paid for them. That John Greer conveyed to Samuel his interest, which was one eighth, hi his father’s tract of land, which contained one hundred acres. The conveyance was made early in the year 1838, and was in consideration that Samuel Greer should support his mother, who then resided on the land with him. That as to the one hundred acres of land alleged in the bill to have been owned by John Greer, he had obtained a patent therefor in 1830, and had sold it in 1834 to his brother James Greer for 80 dollars; that James cleared a few acres of it and farmed it for two or three years, and then removed to the county of Jackson, and agreed that Samuel Greer might have the land at the price he gave for it, and pay him when Samuel should find it convenient to do so : And he directed John to make a deed for the same to Samuel Greer, which was accordingly done; and the deed was recorded on the 20th of March 1838. That Samuel Greer had cultivated his father’s tract of land for ten years, and the other tract from the year 1836 or ’37, and had been enabled to pay for the notes aforesaid from the proceeds of his labour. That he purchased in good faith, intended no fraud himself, and had no knowledge of any fraudulent intent on the part of John Greer.
    
    
      John Greer also answered the bill. His answer was substantially the same as that of Samuel Greer.
    
    The action in which the judgment was recovered by the plaintiff, was for seduction. The evidence in the cause satisfied the Court below and this Court, that the assignments of the notes of Smith and Gillaspie by John Greer to Samuel, were fraudulent; and when the cause came on to be heard in the Circuit court, that Court decreed that these assignments were fraudulent ; and that the conveyance, if one existed, from John Greer to Samuel for the interest of the said John in his deceased father’s real estate in the county of Mason, was also null and void: and that his interest therein should be subjected to the complainant’s debt. And it was further decreed, that the plaintiff recover against the defendants, John and Samuel Greer, the sum of 755 dollars 68 cents, the debt and costs recovered at law, and the costs in this cause; and that the plaintiff have leave to issue execution on this decree to enforce the collection thereof. But this portion of the decree, authorizing the issuing of execution, was suspended for sixty days from its date, that if the said John and Samuel Greer, or either of them, after they have been each served with a copy of the decree, within the period of sixty days aforesaid, shall surrender to E. S. Evans, late sheriff of the county, the whole of said notes and obligations of Nehemiah Smith and George Gillaspie, due and unpaid to them or either of them, their agents or attorneys, or in any manner unimpaired by their acts, within sixty days from the date of this decree, then no execution is to issue, unless by a future order and decree of this Court. And if any of the said notes or obligations, or any part of them, have been received by the said John and Samuel Greer, they may surrender to the said E. S. Evans, the notes or obligations, with credits endorsed upon them, and shall receive a credit upon the execution for the balance actually due upon said notes and obligations; provided that by no act of theirs or either of them, the said notes and obligations have been cancelled, or the liability of the payees or obligors destroyed. And it was further provided, that if the notes and obligations were in suit, so that they could not be surrendered, that the defendants might assign them to Evans, and should have credit on the execution for the amount.
    It was-further decreed, that unless the said notes and obligations were surrendered within the time prescribed, to the amount of the plaintiif’s debt, or the debt was paid by said John and Samuel Greer, that a commissioner should proceed to advertise in the mode prescribed in the decree, and sell at public auction, the interest of the said John Greer in the land of which his father died seized, upon the terms of one half the purchase money in cash, and the other half on a credit of four months, with interest from the date, &c. And the commissioner of the Court was directed to take an account of the personal estate of which the father of John Greer died possessed, or which had come to his distributees since his decease; and to ascertain what aliquot portion of the personalty the said John Greer was entitled to ; and in what manner it had been disposed of; and its value. Prom this decree John and Samuel Greer applied to this Court for an appeal, which was allowed.
    
      B. H. Smith, for the appellants.
    
      Fisher, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that there is no error in so much of said decree as declared that the assignments of the obligations therein described upon Nehemiah Smith and George Gillaspie, and the conveyance, if one exist, from John Greer to Samuel Greer, for the interest of John in his deceased father’s real estate, were fraudulent, and therefore null and void as against the appellee, a creditor of said John Greer. The Court is further of opinion, that there is no error in so much of said decree as directs the commissioner to take, state and settle an account of the personal estate of which the father of said John Greer died possessed, or which has been distributed, to ascertain what portion the said John is entitled to ¡ and how it has been disposed of. The Court is further of opinion, that the residue of said decree, giving a joint and personal decree against the said John and Samuel Greer, for the amount of the judgment at law against said John, and prescribing the mode in which said obligations should be surrendered, and directing a sale of the interest of said John in the real estate of his father, on condition said obligations were not surrendered to the satisfaction of the appellee, is erroneous. The complainant should have been required to make said George Gillaspie a party defendant ; to have matured his case against said Nehemiah Smith and Gillaspie; and if upon the hearing it appeared that the said Smith and Gillaspie were the debtors of said John Greer at the time of such fraudulent transfers, and that the appellee was still entitled to the application of said debts in the hands of the debtors, to the payment of his judgment, there should have been a decree compelling said debtors to pay into Court the amount for which they were chargeable, to be applied to said judgment and the costs of this suit; with leave to proceed against the said Samuel for any portion of said debts he may have received, or for which he may by his improper acts or negligence, have rendered himself chargeable; and for the balance of said judgment and costs of this suit, after the application of the funds derived from the sources aforesaid, the interest saj¿ John in the real estate of his father should have been sold.

It is therefore decreed and ordered, that so much of said decree as is herein declared not to be erroneous, be affirmed, and that the residue of said decree be reversed, with costs to the appellants, and that the cause be remanded, with leave to the appellee to make George Gillaspie a party defendant; and to be further proceeded in according to the principles before declared, in order to a final decree. Which is ordered to be certified.  