
    *Winston v. Johnson’s Executors.
    Wednesday, June 5th, 1811.
    1. Real Estate — Sale of Land Subject to Judgement Lien —Liability of Purchasers.- -it seems that voluntary purchasers of lands subject to the lien of a judgment are personally responsible, in equity, to the creditor, (the goods and chattels of the debtor being exhausted.) for half the profits (or so much of half as may be sufficient to satisfy the judgment) jointly and not pro rata, notwithstanding they hold tracts of unequal values, and by distinct conveyances.
    2. Bills of Review - — Want of Notice of Taking an Account. — Want of notice of ttie time and place of a commissioner’s taking'an account, or the court’s acting upon the report too soon, are not sufficient reasons for a hill of review, such objections not having been taken (as they ought to have been) before the rendition of the decree
    3. Same — New Matter. — New matter is no ground for a bill of review, unless it was discovered since the decree was pronounced.
    This was originally a suit, in the late high court of chancery, by Noel Johnson, a judgment creditor of Geddes Winston, who was alleged and proved to be insolvent, against him, his two sons, Samuel Jordan Winston and William Winston, and William Radford, one of his sons-in-law, to obtain satisfaction of the judgment out of certain lands and slaves conveyed by him after its date. Prom the joint answer of Samuel Jordan Winston, and William Winston, it appeared that Geddes Winston had given each of them three hundred acres of land lying in Hanover, but not any negroes; and that Samuel Jordan Winston had bought of his father sundry slaves, for which he owed him a balance of 1001. secured by bond. The answer of Witliam Radford stated a title, in himself, (by purchase for a fair price confirmed by a well authenticated bill of sale,) to fourteen out of sixteen slaves, a mortgage of whom had originally been executed to him by Geddes Winston, which purchase satisfied the said mortgage.
    The cause came on to be heard on the 16th May, 1795, (after abating as to the defendant Geddes Winston, by his death,) when the chancellor was of opinion ‘“that one half of the rents and profits of the lands confessed by the defendants, Samuel Jordan Winston and William Winston, to have been given to them by their father, which gifts were fraudulent as to creditors, are subject to payment of the money recovered against him by the plaintiff’s judgment, because an execution by elegit might have been served upon those lands in the lifetime of the said Geddes Winston ; and also that the money confessed by the defendant, Samuel Jordan Winston, *to remain due from him to his said father, and to have been secured by bond, and two of the sixteen slaves acknowledged by the defendant, William Rad-ford, to have been mortgaged to him, are moreover subject to payment of the plaintiff’s said demand.” The decree therefore was, “that the said Samuel Jordan Winston do pay so much of the money remaining due by his bond aforesaid to the plaintiff as will satisfy the judgment aforesaid, if the said bond hath not been transferred to some other creditor of the said Geddes Winston; but, in case of such transfer, that the defendants, Samuel Jordan Winston, and William Winston, do account, before one of the commissioners of this court, for the rents and profits of the lands aforesaid perceived by those defendants during the lifetime of their father, and pay to the plaintiff one half of the said rents and profits, or so much thereof as shall be sufficient to satisfy his said judgment; and, in case of a deficiency, that the defendant William Radford do assign his right and title to the before mentioned two slaves to the plaintiff; and that the defendants, Samuel Jordan Winston, and William Winston, do pay unto the plaintiff the costs expended by him in the prosecution of this suit.”
    This decree was affirmed by the court of appeals, in April, 1797. The account of rents and profits, thereby directed, was taken May 30th, 1799, by Master Commissioner Dunscomb, who stated in his report, that he “appointed that day for the defendants to render the account,” and, they “failing to attend,” he proceeded to form an estimate of the annual value of the lands by means of the affidavit of a certain Samuel Perrin, charging Samuel J. Winston with 751. as one half of the amount thereof, from July, 1789, (the date of the deed of gift to him,) to July, 1795, when Geddes Winston died; and William Winston with 861. 5s. calculating in like manner from March, 1790. When this report (to which there was no exception) was returned, does not appear in the record.
    On the 5th of October, 1799, .the chancellor decreed, ‘that the defendants, Samuel Jordan Winston, and William Winston, do pay unto the plaintiff 671. 15s. lid. (the amount of his judgment,) with interest on 281. 7s. 3d. 1-2 from the 8th day of October, 1788, until paid, and the costs; and that the bill be dismissed as to the other defendant William Radford.”
    To this decree Samuel Jordan Winston filed a bill of review, on the following grounds: 1st. That Commissioner Duns-comb’s report was made ex parte, and, “to the best of his knowledge and belief, without any notice to him;” 2dly. “That the said report was confirmed the session after it came in, contrary to the practice of the court, and without-the knowledge of his counsel;” and, 3dly. “That the decree ought not to have been against the defendants jointly; since it appeared by the report that the profits received by William Winston were greater than those charged to Samuel J. Winston ; and the effect of this joint decree is that the latter, instead of being charged with half the debt, is made liable for the whole.”
    The bill of review also set forth sundry new matters; viz. “that, during the lifetime of the said Geddes, the complainant did not receive any rents or profits from the said lands, they being held by. the said Geddes; that the profits stated by the commissioner greatly exceed the actual value of the land ; that part of the said land is held by the widow of the said Geddes as tenant in dower; that the complainant has paid large sums of money on account of the said Geddes’s debts, and is moreover charged by a decree, in a suit, Dandridge and others against him, for a considerable sum ; that what he has paid, and is chargeable for, (exclusive of Johnson’s claim,) is, he verily believes, fully equal to his interest in the said land ; and that the bond given by him to his father having been transferred, a suit has been brought thereon, and he has discharged it.” JSTo reason was assigned for not bringing forward all these circumstances (except the last) in the answer to the original bill.
    *Noel Johnson having removed to Kentucky before the bill of review was exhibited, an answer by William Duval, his attorney and agent, was received on his behalf, denying generally the allegations in it. Sundry depositions and exhibits were taken and filed in support of the new matter set forth in the bill. The cause came on to be heard, the Sth of October, 1805, when the chancellor affirmed the decree reviewed, “wherein error was not perceived,” and dismissed the bill of review with costs ; whereupon Winston appealed to this court.
    Munford and Wickham, for the appellant. The proceedings subsequent to the decree, which this court affirmed, have not conformed to that decree, which was, that the defendants should account for the profits of the lands held by them respectively, that is, they should separately account, as they held separately. There is a great difference betwee n a joint contract and such a case as this. EJach was answerable only for the estate in his hands. Yet the decree was joint, and not pro rata. This was a direct departure from the decree of this court.
    2. There are great objections to the commissioner’s report on its face. In the first place, the order was not that he should make up an account; but that the defendant should render one. He had, therefore, no right to proceed ex parte, but should have reported to the court their default, and the court might have directed an attachment against them. Again, the commissioner was to report the rents and profits received by them ; instead of which, he has stated the annual value by conjectural estimate.
    3. The want of notice is an extrinsic objection, but sufficiently established by Winston's affidavit to the truth of the bill of review. In this case there being no proof, nor explicit statement by the commissioner that notice was given, the mere presumption was rebutted by Winston’s *affidavit, and actual notice should have been proved by the other party.  This objection was not taken in the original suit, because the report was not suffered to lie long- enough in court. It was dated the 30th of May, and acted upon by the chancellor the 5th of October following ; and it does not appear that the parties were heard; for the decree has this remarkable peculiarity, that it is not said to have been rendered “after hearing arguments of counsel,” (as is customary,) but only “on consideration of the commissioner’s report.”
    Warden, contra. The decree against Samuel J. Winston and William Winston jointly was correct; for they answered jointly, and there was no reason for making a distinction between them, since they were both voluntary purchasers of lands, every part of which was equally liable to the plaintiff’s demand. If the whole debt be taken out of the lands conveyed to the one, he may have his remedy out of those conveyed to the other. 
    
    As to the want of notice ; the phrases used by Dunscomb in his report, “that he appointed a day,” and that the defendants “failed” to attend, sufficiently imply that they must have had notice. And, if they had not, they should have made the objection before the decree was rendered; for, from the date of the commissioner’s report, *it must be supposed to have been returned within the term of the then high court of chancery, which commenced on the 12th of May, and not to the September term, as is pretended in the bill of review.
    Cur. adv. vult.
    
      
       Bills of Review. — See monographic note on "Hills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
    
    
      
       Same — Want of Notice of Taking; an Account.— Want of notice of the time and place of a commissioner taking an account is not sufficient reason for a bill of review or petition for rehearing; such objectionnot having been taken, as it oughtto have been, before the decree was rendered. Bank v. Shirley, 26 W. Va. 569.
    
    
      
       Same — New Matter. — After the affirmance of a decree by the court of appeals, a bill of review should not be received, but for new matter which could not be produced or used by the party claiming the benefit of it at the time when the decree was pronounced, and proved to have been discovered since. Campbell v. Price, 3 Munf. 228, citing principal case.
      To the point that new matter is no ground fora bill of review, unless it was discovered since the decree was pronounced, the principal case is also cited in Dingess v. Marcum, 41 W. Va. 763, 24 S. E. Rep. 626.
    
   Wednesday, September 25th. Judge Roane reported the following opinion of the court:

“The court is of opinion, that there is neither any error apparent upon the face of the decree sought to be reviewed, nor any new matter shown in the case before us, which is competent to authorize the bill of review allowed in this case ; and is further of opinion that neither the allegation of the appellant that the report of the commissioner was made without due notice to him of the time and place of taking the same, nor that the said report did not lie long enough in court, prior to the rendition of the decree, (objections on neither ground having been taken in the court below,) are of a character to justify a bill of review. On these grounds, this court affirms the decree of the chancellor dismissing the bill of review, with costs.”  