
    *Taylor’s Adm’r & als. v. Spindle.
    April Term, 1845.
    Richmond.
    (Absent, Allen, J.)
    1. Judgments† — When andón What a Lien. — Where a fieri facias has been issued upon a judgment within the year and a day, the judgment is a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which were afterwards acquired, in the hands of 6onafi.de purchasers for value, without notice.
    2. Same! — Nature and Extent of Lien. — So long as a judgment may be revived, it is a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which are afterwards acquired, into whosesoever hands they may have come.
    3. Same — Lien—Case Disapproved. — The dictum of the Judge, delivering the opinion of the Court in the case of JBppes v. Randolph, 2 Call 103, "that a judgment revived by scire facias only operates prospectively, so as to give a lien from the time of its revival, and has no retrospective effect so as to avoid mesne alienations,” examined and disapproved.
    4. Chancery Practice — Relief Granted Judgment Creditor. — It is the settled practice in Virginia, to entertain the suit of the judgment creditor for relief in equity, when the debtor has. subsequent to the judgment, conveyed his land in trust for the payment of debts, or on other trusts authorizing the sale of the land. And in such case, the court will decree a sale to satisfy the judgment.
    5. Same — Same—Issuance of Elegit Unnecessary. — It is not necessary that a judgment creditor should have issued an elegit on his judgment, before coming into equity for relief.
    
      6. Case at Bar — Sale of Land — Bonds.—A vendee of land being entitled to an abatement from the amount of the purchase money, for the failure of the vendor to put him in possession of a part of the land, at the time specified in the contract; and the vendee afterwards becoming insolvent, and the land being sold ; and the vendor having assigned the bonds for the purchase money and removed from the state ; the assignee of one of the bonds, having obtained a judgment against the vendee, before the conveyance by him of the land, comes into equity to enforce satisfaction of his judgment out of the lands in the hands of the purchasers. Held,
    1. Same-Same — Same—Set-Off. — The purchasers are entitled to set off the amount to which the vendee is so entitled, against the purchase money yet due.
    2. Same-Same — Same—Same—If the vendee paid a part of the purchase money to the vendor, or a subsequent assignee, with notice of a prior assignment of one of the bonds, the purchasers can only set *off against such prior assignee, the balance due to the vendee above the amount so paid by him.
    3. Same — Same—Same — Assignment —Set-Off.—If two or more of the bonds for the purchase money, are unpaid, the claim of the vendee should be first applied to the discharge of those last assigned; and only the balance remaining after their discharge, is a good set off against the first assignee.
    
      4. Same — Same—Same—Same—Same.—If tlie "bonds were still in tbe bands of tbe vendor, or if tbe assignment thereof was a cotemporaneous act, and a judgment binding tbe lands of tbe debtor bas been obtained on one of tbe bonds, and no sucb judgment bas been obtained on the others, tbe claim of tbe vendee shall not be set off against tbe judgment binding the land, except for tbe balance of said claim, after discharging tbe other bonds.
    7. Chancery Practice — Parties.—In a suit byajudgment creditor to subject lands in the bands of a bona fide purchaser from tbe vendee, pending the suit tbe purchaser dies. His heirs are necessary parties.
    8. Appellate Practice — Want of Necessary Parties — No Objection in Lower Court. — This Court will reverse a decree for the want of necessary parties, though the objection is not taken in the Court below.
    In March 1814, Vincent Glass of the county of Culpeper, sold to Samuel Baker a tract of land on which said Glass then lived. The written agreement between them stated the terms of the contract to be, that Baker should pay for the land at the rate of 6 dollars 66 cents per acre; 1500 dollars to be paid when Glass should put Baker in full, clear and peaceable possession of all the lands purchased, with the improvements thereon; and that he should on receiving that sum, execute to Baker a deed in fee simple for the land. The balance of the purchase money was to be paid as follows, viz: 500 dollars on the 1st day of January 1816, and so on annually at that rate and proportion until the whole was paid. And Baker was to give a deed of trust or mortgage on the land, to secure the deferred payments.
    When this contract was made, a certain Elijah Robinson was in possession of upwards of two hundred acres of the land, under a lease for life from a former proprietor, at a nominal rent; but Glass had instituted a suit to oust him, and had no doubt that he would succeed *in doing so; in which, however, he failed. Before this case was decided, viz. in June 1814, Glass and wife conveyed the land to Baker, who then paid him 1500 dollars, and executed to him four bonds, the first three for 500 dollars each, payable on the 1st of January 1816, 17, 18; and the fourth for 560 dollars, payable 1st January 1819.
    It did not certainly appear what had become of the bonds payable in 1816 and 1817; though Baker alleged they had been paid. The bond payable in 1818, was assigned by Glass to James Basye, and by Basye to the appellee Spindle; who instituted suit thereon, and obtained a judgment at the May term of the County Court of Culpeper for 1818. Upon this judgment an execution of fieri facias was issued, and was immediately enjoined by Baker in the County Court of Culpeper, on the ground that con-trarj' to his agreement with Glass, he had been kept out of possession of upwards of two hundred acres of the land by Robinson ; and claiming on that account a deduction from the purchase money. On the fourth bond a credit of 120 dollars was endorsed under date of July the 1st, 1814; and the bond was assigned in July 1815, to Courtney Norman, and by him assigned to William Rixey; who brought suit thereon, and obtained a judgment in November 1819. This judgment was also enjoined by Baker; and that injunction is still depending.
    In May 1819, Baker by a deed duly executed and recorded, conveyed the tract of land purchased from Glass, to Elijah Way, in trust to secure William Cooke and James Ship, as his endorsers at bank. In December 1819, he by a like deed, conveyed the same land to Eben Melton, in trust to secure a debt to John Ship; and this debt, with the benefit of the deed of trust, was afterwards assigned to Eben Taylor. In July 1820, the trustee in the second deed proceeded to sell the land, subject, to the trusts of the first deed, when Eben Taylor ^became the purchaser thereof at a price insufficient to discharge the liens upon it. At this sale, Spindle gave notice, that he held one of the bonds given for the purchase money of the land, on which he had obtained judgment; and that he claimed to subject the land to the satisfaction thereof; and Taylor purchased with this notice; but it does not appear that either the trustees or the cestuis que trust had notice at the time of the execution or recording of the deeds, that any of the purchase money for the land was unpaid.
    The injunction suit of Baker v. Spindle having been removed to the Chancery Court at Eredericksburg, the injunction was dissolved in September 1823, for the failure of Baker to give additional security; and in May 1824 the bill was dismissed.
    In June 1826, Spindle instituted this suit in the Chancery Court' of Fredericksburg, against Baker, Eben Taylor the purchaser, and the trustees and cestuis que trust in the two deeds of trust above mentioned; and in his bill he stated the contract between Glass and Baker; the execution of the bond, and its assignment to him; and that he obtained a judgment, and issued an execution thereon; and he charged that the defendants, before the execution of the trust deeds under which they claimed, had notice that the bond held by him was given for the purchase money, and was unpaid; and that the land was sold by the trustees, subject to the payment of the purchase money yet due. He therefore prayed that the land might be sold for the payment of his debt, interest and costs; and for general relief.
    The defendants Taylor, Cooke, and James Ship, answered the bill, admitting that the bond held by the plaintiff was given for the purchase money of the land, but denying, that they had notice, at the time of the execution and recording of the deeds of trust under which they claimed, that it was unpaid; or that the land was sold subject to the payment of the purchase money *then remaining unpaid. They farther stated that the judgment had been enjoined by Baker; and although the plaintiff had made frequent efforts to have that injunction dissolved on •‘■he merits, he had always failed; and it was finally dissolved for want of security.
    The cause coming on to be heard, the Court expressed the opinion that the complainant was not entitled to the benefit of the vendor’s lien; but that he having obtained a judgment against Baker, before the execution of the deeds of trust, was, as a judgment creditor, entitled to have one half the land sold in satisfaction of his judgment; and the complainant was directed to amend his bill, and make Rixey the assignee of the fourth bond, a party defendant: which was accordingly done.
    The defendants Cooke, James Ship, and Taylor, then, by a petition, in the nature of a bill of review, insisted, that the injunction obtained by Baker, to enjoin the plaintiff’s judgment, not having been dissolved on the merits, and Glass having long since removed from the Commonwealth, they were entitled to have the amount to which Baker was entitled, on account of the failure of Glass to give him possession of the land, ascertained, and setoff against the bond held by the plaintiff. And the Court being of opinion, that this claim was a proper setoff against the purchase money, directed an issue to ascertain the amount to which Baker was entitled on that account.
    The verdict of the first jury was set aside, as not being responsive to the issue. The second jury returned the following verdict: “We of the jury do find, that the sum of 833 dollars would be a fair abatement from the stipulated price of the lands in the issue referred to, in consequence of the failure of the vendor Glass to remove the incum-brance in the issue mentioned from a portion of the lands, and to deliver possession of the lands according to the terms of the agreement in the issue mentioned.”
    *Baker and Taylor having died during the pendency of the cause, it was revived against their respective administrators; but Taylor’s heirs were not made parties. And the cause having been previously removed to the Circuit Superior Court of Law and Chancery for the county of Spottsylvania, it came on in September 1838, again to be heard, when the Court made a decree, by which it was declared that Rixey was not entitled to satisfaction out of the land, his judgment being subsequent in date to the deeds of trust; but that the judgment of the complainant Spindle had priority over the deeds; and the decree then proceeded: “And it moreover appearing to the Court that Baker was entitled to set off against the purchase money in the proceedings mentioned, eight hundred and thirty-three dollars, which the court must construe as of the 9th of June 1838, when the verdict was rendered, therefore, in regard to the manner in which that set off shall be applied, the Court is of opinion, inasmuch as the plaintiff Spindle admits in his amended bill, that the fifteen hundred dollars in the proceedings mentioned, was paid by Baker to Glass, without any deduction ; ,so that by that payment on the day of the contract, the abatement became chargeable exclusively on the instalments, and to be deducted from them, each bond being taken, proportionably, for an excess beyond what was proper to be claimed; and looking at the transaction in its original position, equity would have required that each bond should have been subjected to its ratable deduction. If any subsequent .circumstances would have varied the original equity, they are not presented in the record ; and the Court must act upon the maxim that equality is equity. And, therefore, upon these principles, the Court doth adjudge, order and decree that Spindle’s judgment must'be reduced in the proportion of two thousand and sixty dollars to eight hundred and thirty-three dollars. And doth direct that one of the commissioners of this' Court do forthwith *make a statement in conformity with the principles of this decree, and report the same to the Court in order to a final decree.”
    The commissioner having returned a statement, ascertaining the amount to be credited on Spindle’s judgment at 202 dollars" 18 cents, and the balance of that judgment to be 926 dollars 77 cents, with interest on 500 dollars a part thereof, from the 25th September 1838, till paid; the cause came on to be finally heard on the 27th of September, when the Court decreed: that unless the defendants, or some one of them, should pay to the plaintiff the said sum of 926 dollars 77 cents, with interest on 500 dollars a part thereof, from the 25th of September 1838, till paid, within thirty days from the date of the decree, that certain commissioners mentioned in the decree, should' proceed to sell a moiety of the land, or so much thereof as was necessary to satisfy the plaintiff’s debt, for ready money, at public auction ; and out of the proceeds of sale should pay, &c.
    • Rrom this decree, the defendants, Taylor’s administrator and Cooke, applied for, and obtained an appeal to this Court.
    Morson, for the appellants.
    1. Spindle’s judgment was not a lien upon the land of Baker, paramount to the trust deeds, because no 'elegit was ever issued upon it,' and no entry of an election of that execution was made upon the record. The case of Eppes v. Randolph, 2 Call 103, is a direct authority for the proposition, that unless an elegit is issued, or elected on the record, within twelve months, the judgment will not overreach a subsequent conveyance. This doctrine is re-affirmed in the case of Claiborne v. Gross, 7 Leigh 331. In that case, the jurisdiction of tlie Court could not have been sustained but upon the assumption that Eppes v. Randolph was the law of the Court; for, the ¡deeds there, could have been no impediment in the way of the judgment ^creditor, if the lien of the judgment was paramount the conveyances. In that case, the question, whether the conveyances were fraudulent, or bona fide, would have been wholly immaterial.
    To the same effect are 2 Tuck. Comm. 378, and the opinion of Chief Justice Marshall, in the case of United States v. Morrison, 4 Peters’ R. 124.
    These authorities are not shaken by the case of M’Clung v. Beirne, 10 Leigh 394. There, the surety filed his bill to be subro-gated to the judgment creditor, within the year from the affirmance of the judgment; and his rights were measured by, and had reference to, the rights of the judgment creditor as they existed at the time of filing the bill; at which time, the right to sue out the elegit still subsisted. The-case of Pox v. Rootes, 4 Leigh 429, has never been considered as authoritative, even by the Judges who decided it, as will be seen by what is said by Judge Cabell, in Rogers v. Marshall, 4 Leigh 42S.
    Upon principle, the rule as stated in Eppes v. Randolph, is correct. It is the elegit of election of record, and not the judgment, which gives the lien. Neate v. Duke of Marlborough, 3 Mylne & Craig 407, 14 Cond. Eng. Ch. R. 408; 2 Story’s Equ. p. 462, <j1216, b. note 1. And although by the statute, if the election is within the year, the elegit must relate back to the date of the judgment; the statute does not require this, where the election is not within the year. 1 Rev. Code, p. 524, ch. 134, % 1, 3. As respects the first section of the act which gives the right to sue out the elegit within the year, the phraselogy of the statute makes it clear that the creditor was intended to have a continuing right, during the whole period of the year and day, to charge the debtor’s lands; and a party purchasing within that period, would purchase subject to the creditor’s right to charge it before the year expired. Such a privilege to the judgment creditor is not unreasonable. But a purchaser *after the year, when no elegit has been issued or elected, is justified in presuming that the creditor does not design to resort to the land of his debtor for satisfaction of his judgment; and if the relation of the elegit to the date of the judgment is , still to take place, then it-must work great - hardship and injustice; since no period is ; limited for suing out the writ, except in the first section of the act.
    2. If the lien of Spindle’s judgment still continued, a Court of equity had no juris- | diction to enforce it. Neate v. Duke of Marlborough, 3 Mylne & Craig 407, 14 Cond. Eng. Ch. R. 408; Claiborne v. Gross, 7 Leigh 331. The only case in which equity has jurisdiction to relieve the judgment creditor, is where the land extended is insufficient to keep down the interest of the debt, or where obstacles exist to the creditor’s proceeding at law. No such ground of jurisdiction is alleged in the bill, or proved. The Court should therefore have dismissed the bill, instead of decreeing a sale of half the land. Green, J., in Straughan v. Wright, 4 Rand. 493.
    3. The abatement from the amount of the purchase money, on account of the failure of Glass to give full possession of the land to Baker, should have been wholly applied to the two last bonds; which were the onl}’’ bonds yet unpaid. The equities of the ob-ligor are the same against an assignee, as against the obligee himself. Norton v. Rose, 2 Wash. 298. If these two bonds had never been assigned, but had still remained the property of the obligee, it cannot be doubted, that the abatement would have been applicable to them. As to the application of the abatement between the respective bonds held by Spindle and Rixey, equity requires that the whole should be deducted from that bond, which, having been carried into a judgment, constituted a lien on the land. This would only be conformable to the general principles on which the Court affords protection to bona fide purchasers; and to the right of debtors to direct *the application of their payments. At all events, the abatement should have been applied, exclusively, to the two outstanding bonds, and ratably between them.
    4. The abatement should have been applied to the original amount of the purchase money, not to the accumulated principal and interest at the date of the verdict. The stipulated price was for the whole land; and the deduction for the failure of the title to a part of it, was an immediate credit in favour of the vendee. This construction seems to conform to the terms of the issue, and the probable meaning of the jury. The vendee remained out of possession of two hundred acres of his land for twenty-four years; though entitled, under his contract, to immediate possession; and unless the abatement be applied to the principal of the purchase money, it would be obviously too small. If it is applied to the principal, then, together with the payments admitted or proved, it would very nearly extinguish the whole debt, instead of leaving a balance of near 1000 dollars unsatisfied.
    5. The suit should have been revived against the heirs of Eben Taylor. They .are the proper parties to contest the appel-lée’s claim to a lien upon their land.
    Harrison, for the appellee.
    1. The proposition for which I shall contend, is, that where a fieri facias has been taken out within the year and day, the plaintiff may afterwards resort to the elegit, having failed to get satisfaction by means of the first execution : and in such case the lien of the elegit will relate back to the dale of the judgment.
    Eppes v. Randolph, 2 Call 103, if correctly decided, has no application to this case. In that case the creditor not only failed to sue out or elect an elegit upon his judgment, but he failed to take out any execution whatever within a long period, embracing several years. He had not even issued a scire facias to revive the judgment: *and when the intermediate conveyances were made, the debtor had other property sufficient to discharge the debt. Under such circumstances, it may have been very properly decided that the purchasers of the land should be protected against the judgment creditor.
    In the principal case, a fieri facias was issued within the year. Within the same period, the debtor enjoined the plaintiff from proceeding on the judgment, and also within that period and pending the injunction, the conveyances in trust, under which the appellants claim, were executed.
    In the cases of Avery v. Robinson, 4 Munf. 546; Coleman v. Cocke, 6 Rand. 618; and United States v. Morrison, 4 Peters’ R. 124, it is clearly held, that the issue, or election of an elegit within the year and day, is not necessary to continue the lien of the judgment; but where another species of execution has been issued and returned without satisfaction of the-judgment, the lien continues: and the two last cases shew that it will overreach intermediate conveyances.
    The case of Claiborne v. Gross, 7 Heigh 331, cited by the. counsel for the appellants, will be found on examination to be in favour of the appellee; and the cases of M’Cullough v. Somerville, 8 Heigh 415, and M’Clung v. Beirne, 10 Heigh 394, are authorities for the appellee, to sustain both the lien of the judgment, and the jurisdiction of the Court to enforce it. This last case also shews, that where no enquiry is asked for the purpose of ascertaining whether the rents and profits would satisfy the judgment debt in a reasonable time, a sale of the property may be properly decreed.
    2. The next question is, whether the abatement from the purchase money has been properly applied. It is not proved, and does not in any way appear, that the first two bonds given for the purchase money had been discharged. If they still remained unpaid, (as in the *absence of proof it should be presumed they did,) the decree made the proper application. If one or more of the bonds were still in the hands of the vendor, it is admitted that the whole abatement should properly come out of them. But if-all were in the hands of different assignees, (which-is most probably the case here,) the deduction should be ratably apportioned among them all.
    3. The objection that Eben Taylor’s heirs were not made parties, comes too late. It should have been taken by plea in abatement, pointing out the heirs by name; or if the defect appears upon the face of the bill, by demurrer for want of parties; which must in like manner designate the proper parties. If, however, the heirs of Eben Taylor ought to have been before the Court, the consequence will be, simply to send the cause back for that purpose, with an approval of the decree in all other respects.
    
      
      Judgments — Nature and Extent of Lien. — The late act of March 1843, respecting the docketing of judgments, clearly evinces that in the opinion of the legislature, 'the lien, of the judgment creditor operated from the date of the judgment and continued thenceforward without qualification or impediment, while the creditor had or could get the capacity to issue the elegit on it, irrespective of intervening abatements, suspensions or delays; and that the judgments docketed according to that act, would in like manner, preserve the past, and continue the existing lien indefinitely: that is, until from some supervening cause, it should be lost by the loss of the rightful capacity to sue execution on the judgment. These words used by Judge Stanakd in the principal case were quoted in Borst v. fraile, 28 Gratt. 431; Renick v. Ludington, 14 W. Va. 376. To the same effect, see principal case cited in Michaux v. Brown, 10 Gratt. 619, 620; Hutcheson v. Grubbs, 80 Va. 255; Werdenbaugh v. Reid. 20 W. Va. 591 (citing also Watts v. Kinney, 3 Leigh 272, 293; Burbridge v. Higgins, 6 Gratt. 119).
      Same — Within What Time the Lien May Be Enforced In Equity. — In Werdenbaugh v. Reid, 20 W. Va. 593, it is said: “In determining the time within which the lien of a judgment might be enforced in a court of equity, it was uniformally held that whenever the capacity of having execution upon the judgment was barred, the lien of the judgment was destroyed and no suit could be brought to enforce it. 2 Minor’s Inst.'272; 1 Lomax Dig. sec. 10, p. (288) and cases cited; Taylor r.. Spindle, 2 Gratt. 44.” To the same effect, see the principal case cited in Werden-baugh v. Reid. 20 W. Va. 596.
    
    
      
      Same. — On all matters pertaining to judgments, see monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      In regard to the lien of a judgment, see the principal case also cited in Renick v. Ludington, 14 W. Va. 381; Caldwell v. Prindle, 19 W. Va. 657; Gordon v. Rixey, 76 Va. 701; foot-note to Rodgers v. M'Cluer, 4 Gratt. 81.
    
    
      
      Chancery Practice — Relief Granted Judgment Creditor-issuance of Elegit Unnecessary. — See principal case cited in James v. Life, 92 Va. 704, 24 S. IS. Rep. 275; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Assignment of Secured Debts — Priority.—To the point that the priority of the assignees of bonds secured by a lien on land depends not upon the maturity of the bonds but upon the date of the assignment, the principal case is cited in McOlintic v. Wise,- 25 Gratt..455. For further, cases in point, see foot-note to Gordon v. Fitzhugh, 27 Gratt. 835; footnote to Schofield v. Cox, 8 Gratt. 533; monographic note on “ Assignments ” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
      Appellate Practice — Want of Necessary Parties — No Objection in Lower Court. — The appellate court will reverse a decree for want of necessary parties, though the objection was not taken in the court below. Baker v. Oil Tract Co., 7 W. Va. 458, citing the principal case; Jameson v. Deshields, 3 Gratt. 4; Richardson v. Davis, 21 Gratt. 706. To the saíne effect, the principal case was cited in James River Co. v. Littlejohn, 18 Gratt. 84; foot-note to Clayton v. Henley, 32 Gratt. 65; Cronise v. Carper, 80 Va. 682; Morgan v. Blatchley, 33 W. Va. 158,10 S. E. Rep. 283; foot-note to Jameson v. Deshields, 3 Gratt. 4. See, in accord, Clark v. Long, 4 Rand. 453; Sheppard v. Starke, 3 Munf. 29. See generally, monographic note on “Appeals."
    
   STANARD, J.

The case of Eppes v. Randolph, 2 Call 103, is urged by the appellant’s counsel as a decisive authority against the title of the appellee to a lien, by virtue of his judgment, on the land of which the debtor was seized at the time of its rendition, and which has since passed into the hands of a purchaser for valuable consideration. The proposition he maintains, is, that unless the judgment creditor, within a year and a day after its rendition, shall sue out an elegit, or enter on the roll his election of the elegit, as the execution by which to enforce the judgment, the lien of the judgment is lost as to such of the lands of the debtor as shall have passed to a purchaser for valuable consideration : and this he insists was adjudged in the case of Eppes v. Randolph.

As that case has been very often the subject of discussion in this Court, and very often the remarks of the Judge delivering the opinion in that case, and not bearing *on the actual case, and as I think, not accurate in point of law, have been taken as the point adjudged in the case, I deem it proper to devote a short time to its examination, for the purpose of separating what was adjudged from the dicta not necessary to the adjudication; and of shewing in what respect the adjudication is questionable, and the dicta are inaccurate.

That case is thus stated by the Judge who delivered the opinion of the Court: “The creditor here has taken no steps; he has sued out no execution; has made no election upon record. The judgments have long since expired, and no scire facias taken out to revive them. If he had done so, the lien would have been revived; but to operate prospectively, and not to have a retrospective effect, so as to avoid mesne alienations.”

The judgments had, in truth, been rendered more than twenty years before the suit; no execution had ever issued; the debtor was dead when suit was commenced; and that debtor had in his lifetime, some ten years before the suit, conveyed the lands sought to be charged, to purchasers for valuable consideration, without actual notice of the judgments. This summary shews that in the view of • the Court, the stress of the defence in the case, was upon .the fact, tljat by reason of the creditor’s 'falling,to 1;áke ouf'execittlon' ^within a' year and a day, the judgment had expired, and a scire facias was necessary.

The argument for the purchasers in that case, placed their title to protection on the fact that the judgment had expired. In that argument no pretension was advanced, that though execution could issue after the year and a day, by reason of the emanation of a fi. fa. or ca. sa. within the year and a day, the lien of the judgment would have been lost if the creditor did not sue out an elegit, or enter on the record his election of the writ of elegit: and if such a pretension had been advanced, its refutation was at once complete, by an appeal to the ^plainest principles of law. The lien of the judgment results from the mandate of the execution which issues upon it, which in terms directs the delivery to the creditor of one moiety of the lands, &c. of which the debtor was seized at the date of .the judgment or since, at a reasonable value or extent. This mandate is unconditional. By its express terms, the creditor is entitled to the moiety, at a reasonable extent, without qualification as to the rights of purchasers, or others, intervening between judgment and execution, or to the time at which the execution may have issued.

Notwithstanding that the dictum in that case, that it is necessary to the preservation of the lien of the judgment against subsequent, purchasers from the debtor, that the creditor should either sue out, or enter of record his election of the writ of elegit, has been occasionally referred to as an adjudication, it has, as far as my researches have informed me, never been acted on by this Court, or governed the practice of the country. On the contrary, • very recently after the decision of that case, the Court in the case of Tinsley v. Anderson, 3 Call 285, sustained the lien of the judgment'from its date, where execution had issued within the year and a day, irrespective of the nature of the execution, and without enquiry whether the creditor had entered on the record his election of the elegit. So in the case of Stuart v. Hamilton, 8 Leigh 503, though there was no elegit or election of one at any time, and the suit in equity was commenced'about nine years after the judgment was rendered.' So in the case of United States v. Morrison, 4 Peters 124, though there was no elegit or election of one, and though there-had been a voluntary suspension of execution for years, the lien of the judgment was sustained against parties claiming under a conveyance for valuable consideration made during the period of the suspension. I do not refer to the cases of Coleman v. Cocke, 6 Rand. 618, and M’Cullough v. Somerville, 8 *Leigh 415, because in them, the relief t. , was granted against volunteers or fraudulent 'grantees, and on that, ground-distinguishable from, and not ruling the case where the relief is sought against a purchaser for valuable consideration. But it is useless to refer to particular cases. The efficacy of the judgment, on which the right to issue execution has not been suffered to expire, has never been questioned even, in any case that has fallen under my notice except the dictum before cited in Eppes v. Randolph. Tracing that dictum to its source, we shall ascertain its inaccuracy ; and when ascertained, the dictum will furnish a curious example of the application of the function ascribed to the suing out, or election .on the record of the elegit, in the case to which it is applied, in such manner as wholly to change that function,

The passage from 2 Bac. 730, Gwillim’s edition, in which this election on the roll of the writ of elegit is mentioned, is found under 'the head in which the author is treating of the time execution may be sued out, and of the necessity of a scire facias. Now the general rule is, that unless an execution be sued out within the year and a day after judgment, the party is put to his scire facias; and having stated this general rulé, the author proceeds to state the qualifications; and among them is the one in which, though execution be not issued, if the plaintiff enters on the roll of the judgment an award of an elegit of the' same term with the judgment, and continues it down with vicecomes non misit breve, he may take out that writ at any time afterwards, without suing *out a scire facias. Bacon refers to the case of Seymour v. Granvill, Carth. 284; 2 Roll. Rep. 105. The inspection of the case in Carthew shews, that the sole question was, whether the election of the elegit on the roll, and the continuances, entitled the plaintiff to sue out execution after the year, without scire facias? In other words, whether such election and continuances were equivalent to the actual issue of the execution? The Court at first decided, that unless the execution was actually issued within the year, the plaintiff was put to his scire facias; but having upon the examination of several ancient practising clerks, ascertained that' this had been the constant practice for many years, the Court reversed the opinion, and ordered the execution to stand-good. The function, then, of the entry of the election of the elegit on the roll, was not to preserve the lien of the judgment, which, but for such election within the year, would be lost, but to preserve the right to issue execution after the lapse of the year and daj’-, though no execution had .within that time actually issued. And the entry of such election on the roll was in no otherwise connected with the preservation of the lien, than as the preservation of the right to sue execution without a resort to a scire facias was necessary to the preservation of the lien. Whatever saved the right to execution without scire facias, saved the lien which results from its mandate. If the actual emanation of any other execution within the year incon-testibly preserved the right to the elegit after the year, that elegit must be armed with as much power as one, the right to issue which is saved by the mere election of it on the roll. The whole function of the election of the elegit within the year, is to save the right to issue it after thé year; and the issue of a fi. fa. or ca. sa. within the year performed the same function. In the case of Eppes v. Randolph, the Court having no warrant but the case ascribing this function only to the election on the roll, ascribes to the election *the function of preserving the lien of the judgment; and then leaps to the conclusion, that if such election be not made within the year, the lien is lost as to purchasers for value from the debtor. It is proper to premise, that however inaccurate in the general form in which the proposition is stated by the Court, yet coupled with a point arising in that case, and decided by the Court, the dictum is, as applicable to the case, correct, if the decision of the point alluded to was so. The actual case was one in which the judgment had, in the language of the Court, expired, by failure to sue out execution within the year and day; and the debtor had died, and the creditor must at law have resorted to a scire facias to obtain an execution on the judgment. Now the Court, it seems, entertained the opinion, and decided, that the expiration of the judgment extinguished the lien; and that the lien of the judgment on a scire facias was prospective, and would operate only from the date of the judgment awarding the execution sought by the scire facias.. If this was correct, then the preservation of the right to sue execution on the original judgment, was necessary to the preservation of the lien of that judgment from its date; and the dictum as expressed, involved no substantial inaccuracy. At most it is but elliptical, leaving out one term of the argument. Coupling the point decided, as to the loss of the lien by the expiration of the judgment, with the dictum, the Court would have said: the lien of the judgment is lost if the plaintiff has suffered his judgment to expire, and must resort to a scire facias to have execution. The right to the execution without resort to a scire facias could be preserved only by suing out or entering on the record the election of the elegit, and having the continuances entered; but this has not been done, and execution cannot issue without a scire facias; and therefore the judgment lien is, as to purchasers for value, lost. This -would all be correct, if the first proposition, *in respect to the effect of the expiration of the judgment, be correct. The dictum so explained, and the decision, are limited to the case of an expired judgment; and therefore have no bearing on the question as to the lien of a living judgment.

But is the proposition, that the lien of a judgment on which execution has not issued for a year and a day is lost as to purchasers for value intervening between the date of its rendition and revival, correct? Though it be not necessary' to the decision of the case under judgment to decide it, yet as the case of Eppes v. Randolph has been the subject of frequent reference and discussion, and much diversity of opinion has been expressed in respect to it, I think it will not be inappropriate to couple with the examination of the dictum so frequently in argument vouched for the doctrine, that the issue or the entry on the record within the year and day of the election of the elegit is necessary to preserve the lien, an investigation of this.

I perceive that the Court in the case of Eppes v. Randolph, seems to have been prepared to deny the assistance of the Court of Equity to the creditor, on the circumstances of the case; and might perhaps have justly done so, and left the party to his remedy at law, if any, and to struggle with all the difficulties that surrounded that remedy. The judgment had been rendered in 1770, with a stay of execution until 1772; and the claim in equity was first asserted in 1797. The circumstances forbidding the assistance of the Court of Equity against purchasers for value in the year 1780 and 1786, are thus adverted to by the Court. “Erom July 1772 to April 1774, there is.no excuse. This is 21 months, during which the judgment expired, and the lien was at an end: if it could be revived, it was to be done by scire facias on the judgment, which has never been issued.

“Admitting his excuses to be good from April 1774 to 1791, they ceased to operate from the latter period. *At that time, if he had sued out his scire facias, there were lands in the hands of the devisees which he might have charged, in exoneration of the purchaser. By lying by until 1797, he suffered them to be exhausted by other creditors by bond, (for the proceedings against them are all subsequent to 1791,) and now comes into equity to set up his lien against purchasers. This appears to me to be contrary to every principle of law and equity.” As the considerations arising out of these circumstances enter into, and are constituent elements of the decision, and were obviously in the view of the Court sufficient to forbid the aid of a Court of Equity, without a careful investigation of the strict law of the case, the strength of the case, as an authority bearing on the legal question, is much impaired.

Again, while we cannot collect from the opinion of the Court what was its view of the nature and source of the lien of the judgment creditor, the counsel of the purchasers, in whose favour the decree was rendered, states it thus: “The reason that the judgment binds land at all, is not that the statute says they are bound, in so many words, but it is merely a consequence which the Court draws from the statute, by holding- purchasers to a constructive notice of the judgment. So that the lien is not created by the statute, but by the knowledge which the Court presumes the purchaser to have had of the judgment.” 2 Call 140. The only reference he makes in respect to the operation of a judgment revived by scire facias, is Gilbert on Ex’ons 12. That relates to a judgment in a real action, and the common scire facias to revive it, and the common law doctrine as to the operation of such a scire facias in such a case; and has no relation whatever to the nature of the execution which issues on an award of execution in a personal action, and the effect of an elegit issued under such an award of execution.

*The definition given by the counsel, of the nature and source of the judgment lien, is inaccurate and erroneous in all its parts.

Notice, actual or constructive, is in no respect an element in the constitution of the legal lien of the judgment creditor, on the legal estate of the debtor. That lien, where it exists, deriving its existence from the mandate of the elegit to deliver a moiety of the lands, &c. of which the debtor was seized at the date of the judgment, at a reasonable extent, overreaches all intermediate conveyances, “without regard to the point of notice or not notice. A judgment creditor whose lien is against the legal estate, may pursue his remedy notwithstanding a sale, though the sale be bona fide, and without notice; and he cannot be deprived of his remedy, or have his priority disturbed.” 3 Pres, on Abs. 327. That lien does not arise from the presumption of the Court, that the purchaser has notice of the judgment; but results from the express grant of the law, imported by the terms of the execution which the law authorizes him to use. In such case the enquiry into notice or no notice, actual or constructive, is supererogatory. The question of notice, (and that is always one in respect to actual notice,) only arises when equicable interests of the debtor are pursued by the creditor, against a purchaser for value, having the legal estate, or a right to call for it; or where the neglect of the creditor to have his judgment registered, or docketed, has impaired the legal force of the lien. 3 Preston on Abs. 328. Davis v. Strathmore, 16 Ves. 419. The reference to Gilbert on Ex’ons 12, was I apprehend, not apposite. The effect of the common law scire facias in a real action, is not the measure of the force and effect of the statutory lien of the elegit.

To the solution of the question touching the force and. effect of the lien resulting from an elegit issued on the award of execution on a judgment, made on the ^judicial writ of scire facias, the en-quiry most apposite, is, into the nature of that writ, the remedy it seeks, and the judgment pronounced on it. The lapse of the year and day without suing out execution, precludes the emanation of one thereafter, unless it be awarded on the judicial writ of scire facias quare execu-tionem non. The lapse of time imposed a temporary impediment to the emanation of the execution; and the function of the scire facias is to remove that impediment by obtaining an award of one. It seeks, not a new judgment, on which execution is to issue, but an award of execution on the judgment already rendered. The execution issues on that judgment; and the award of it on the scire facias is but, the authority to issue it. The judgment awarding it, after reciting the scire facias, which recites the original judgment, is, “that A. B. (the creditor) have his execution against C. D. (the debtor) of the debt aforesaid, according to the force, form and effect of the said recovery.” Tidd’s Append. 338. The execution which issues is on the original judgment. It is to be according to the force, form and effect of the recovery, that is the original judgment. Pursuing this line of enquiry, it is obvious that if the elegit which issued on the judgment under the award of execution, sought and obtained by scire facias, had an effect different from the elegit which issued without such award, so as to bring down the lien from the date of the judgment to the date of the award of execution, its form would be modified so as to make it operate on the lands only of which the debtor was seized at the award of execution on the scire facias. But I have not found, and I am sure there cannot be found the trace of such a modification, or the suggestion of the necessity of one, or a surmise that there is any occasion for one, or that there is any difference as to the land on which the elegit operates, in the whole body of the English law, comprised in books of entry, forms of process, elementary ^'treatises, and reports. Now, if the law be, that the effect of the elegit issued on the authority of the award of execution on the proceeding by scire facias, was different from that issued, or that could be issued without such authority, as to purchasers for value, how can the failure to enunciate any such proposition, on any one of the manifold occasions which must have existed for its enunciation and application, be accounted for. That such is not the law, plenary proof is found, not only in the silence of the books in respect to it, but in its incompatibility with well established principles. The forms and substance of pleading, are the most reliable evidences of the law. Books of entries of established reputation, purport to enunciate the remedies, and the defences, that may be made. The judgment creditor, by virtue of his lien, has on the death of his debtor, a remedy against the lands of which the debtor was seized at the date of the judgment or since, by scire facias against the terretenants. Now, these terretenants, are generally purchasers for value, of the lands the creditor seeks to subject to his lien; and if the failure of the creditor to sue out execution on the judg- merit within the year and day, before the death of the debtor, so that were the debtor living, the creditor would be put to his scire facias, protected the lands in the hands of a purchaser, from the lien, that matter might be pleaded by the purchaser sued as terretenant, in bar of the scire facias. I find no trace of such a plea in the books of entries, or intimation any where that it would avail. In the enumeration in 6 Com. Dig. 3 L,. 14, p. 523, of the pleas that the terretenant majT make, such a plea is not comprised. The plea of purchaser for value before the judgment is enumerated, but not one of purchaser after the judgment.

Again, Preston in his essay on abstracts of title, after stating that when a judgment is duly docketed it is *binding at that time on all lands of the owner, and on all he afterwards acquires by purchase or descent, has occasion to notice the cases in which purchasers without notice have protection from the judgment lien: and these are, 1st. When such purchaser gets in a prior legal estate, (that is, a legal estate outstanding, and not held by the debtor;) 2d. When the judgment according to the requirements of the statutes, has not been duly docketed or registered. If the failure of the creditor to sue out execution within the year and day, would have displaced the lien, in favour of such purchasers, he doubtless would have embraced that in his enumeration; and his not doing so, or alluding to it, is most pregnant evidence, that in his view such was not the law, nor was it even pretended to be law.

The opinion has been advanced from a most respectable source, that the lien of the judgment creditor did not operate against a purchaser for value without notice, if the creditor had not the right at the time of the purchase, to sue out his elegit, though that right may have existed before, and though he has capacity to restore it after-wards. Such was the opinion of Chief Justice Marshall, in the Circuit Court, in the case of The United States v. Morrison, 4 Peters’ R. 124; and such possibly may have been the impression of the Court in the case of Eppes v. Randolph. There, the creditor having had a right to sue out execution, had, in the opinion of the Chief Justice, that right temporarily interrupted and suspended; and during this supposed suspension, the rights of the purchaser attached, which he thought overreached the lien of the judgment. But this opinion is untenable. So the Supreme Court adjudged, and so the Court of Appeals *thought in the case of Coleman v. Cocke, 6 Rand. 618; though the ultimate decision of that case did not turn on that point. All that has been said in respect to the source and nature of the lien, and force and effect of the elegit issued under an award of execution on a scire facias, apply a fortiori to a temporary suspension, while the parties are living; and after the suspension the execution issues on the judgment, without the aid of the award of it by the Court. The remedy by scire facias is necessarily resorted to in cases other than the failure to sue out execution within the year and day. The creditor may die within a few days after judgment. The right to take out execution is suspended until the judgment be revived by the executor or administrator; and if this opinion be sound, the debtor would be invested, by the death of his creditor, with power to displace the lien of the judgment, by a sale before the revival of the judgment. So the debtor may die a short time after the judgment, with the admitted lien in full force against all his lands, and the debtor may have sold for value some of the lands liable to the lien, while other of his lands descend to the heir. The right to sue out an elegit on the judgment, is thus suspended, until that right shall be restored by scire facias against the heir and terre-tenants; and before it is so restored the heir may sell the descended land for full value. This opinion would protect the purchaser from the heir, as having purchased when the right to sue out the elegit was suspended, and leave the purchaser from the father exposed to the lien. This could not be tolerated, and shews that the opinion conducting to such a consequence, cannot be correct.

The investigation which I have made, has satisfied me that the decision in the case of Eppes v. Randolph, that the lien of a revived judgment operated in respect to purchasers, only from the award of the execution on the scire facias, was unwarranted by the law as ascertained *by the whole course of opinion, decision and practice previous thereto. No one more readily acknowledges the duty of obedience to the injunction stare decisis, or more promptly acts Upon that duty, than I do. However erroneous I deem the decision, if it has been followed by a series of adjudications, or for a length of time, in frequent instances, been accepted and practically applied, as fixing a sound exposition of the law, especially when operating as a rule of property, I deem the duty to abide by it imperative, until changed by the legislature. But the decision aforesaid, during the whole course of my professional and judicial experience, has been the subject of criticism, both by the bar and the bench, frequently referred to in argument of the bar and the bench, it is a little remarkable, that except the case of Tinsley v. Anderson, 3 Call 285, which occurred shortly after, and from the decision in which, it may be inferred, it had a partial operation, it has not, as far as my recollection of the many cases that have passed through this Court enables me to speak, been practically applied to a single case. Indeed, I recollect but a single one, (that of Eox v. Rootes,) which furnished the occasion for its practical operation; and in that it was by the judgment of the Court, denied all effect. It is true, in that case, the judgment of the Court denying effect there, to the decision in the case of Eppes v. Randolph, puts that denial, not on the ground of error in that decision, but on the ground of notice to the creditors claiming under the deed of trust; and, therefore, that case does not necessarily impeach Eppes v. Randolph. Eurthermore, the late act of March 1843, respecting the docketing of judgments, clearly evinces that in the opinion of the Legislature, the lien of the judgment creditor operated from the date of the judgment, and continued thenceforward without qualification or impediment, while the creditor had or could get the capacity to issue the elegit on it, irrespective of intervening abatements, *suspensions, or delays; and that the judgments dockeied according to that act, would in like manner, preserve the past, and continue the existing lien indefinitely: that is, until from some supervening cause, it should be lost, by the loss of the rightful capacity to sue, or to acquire' the authority to sue execution on the judgment. These views satisfy me, that the decision has not been accepted in practice and acknowledged in the frequent application of it as settling definitely a rule of law or property; and that the injunction stare decisis is not of peremptory obligation, in respect to the decision in question. I therefore feel at liberty to act on my clear convictions of the law, as it was when Eppes v. Randolph was decided; and if the case in judgment required it, I should be governed by those convictions, notwithstanding the case of Eppes v. Randolph.

The objection to the right of the judgment creditor to relief in equity, until he shall have sued out his elegit at law, in support of which the case of Neate v. The Duke of Marlborough, 14 Cond. Eng. Ch. R. 408, is cited, though supported by that case, ought not, in my judgment, tobe sustained by this Court. It ought not to be sustained, because it runs counter to the whole course of the practice of our Courts of Equity. Among the numerous cases, which for a series of years have passed through this Court, and in which relief has been given to the judgment creditor, by giving effect to his judgment lien, I do not recollect one, in which the elegit had been actually sued out, and that stated as a part of the title to the aid of equity. In one case, Beverley v. Brooke, 2 Leigh 425, it appears that the judgment creditor had entered on the record within the year and day, his election to charge the lands; but it does not appear that an elegit had issued; and in another case it did appear that an elegit had issued. But the elegit was in that case not used to' aid the title to relief of the judgment creditor, but was an - ob-1 struction to it. It had been ^executed irregularly, it was alleged, and had been unproductive, and thereafter quashed; and the issue of it was used by the defendant to repel, not by the plaintiff to aid, the title to relief.

It has been the course of practice in this State, to entertain the suit of the judgment creditor for relief in equity, when the debtor had subsequent to the judgment, conveyed the land in trust for-payment of debts, or on other trusts authorizing the sale of the land. The debtor having by his deed subjected it to sale, as a general rule, the parties interested in the proceeds of sale, are benefited by^a1'salé of anunincumbered title, as well as the judgment creditor. The Courts of Equity have, therefore, entertained the suit of the creditor, as of common benefit to creditor and cestui que trust claiming under the conveyance. That such is the practice, is evinced by the cases of United States v. Morrison; Fox v. Rootes; M’Clung v. Beirne. Thinking it a salutary one, my opinion is, that it was properly -followed in this case, and justified the resort of the appellee to the Court of Equity, and that Court had jurisdiction to give him the relief to which he might shew himself entitled.

My opinion is, that the Circuit Court was right in regarding the damages found by the jury, as an abatement from the price of the land, as of the date of the verdict, and not, as contended by the appellant, as an abatement of that amount of the principal of the purchase money, as of the date of the contract,-or of the time at which the bonds for the purchase money was payable.

The appellant cannot, in my opinion, justly complain of the manner in which the Court has apportioned the amount of the abatement for the damages found by the jury, and thus deduced the credit there.for, against the appellee’s judgment.

If, as the appellant contends, it appear, that two of the four bonds were paid (which, however, I think is at least problematical), it does not appear when, or how, *or to whom, they were paid.

If made, to Glass after notice of the assignment to Basye, or if rhádé - to tHe.'as-signee of Glass, by assignment subsequent to the assignment to Basye, and notice thereof, then I think it clear, that the vendee ought to have insisted on his entire credit' for the abatement against those bonds; and his payment of them, could in no manner entitle him to claim any part of the abatement as a credit against the judgment of Spindle, the assignee of Basye. The like consequence would attach in the predicament that the .two bonds are not paid, unless it were shewn they were in the hands of prior assignees for value, having a right to charge the land. But suppose they were paid before the assignment to Basye, under whom Spindle claims, so as to leave but the two bonds, the one assigned to Basye, and by him to Spindle, and the other to Rixey, unpaid. If the assignment to Basye was prior to that to Rixey, then the title to credit for the abatement would act first on the bond assigned to Rixej'; and the bond assigned to Basye would be subject to credit for only the surplus, if any, of the amount of the abatement beyond the principal and interest of the bond assigned to Rixey; and there would be no such surplus. Even if the assignments were co-temporary, or if the bonds were still owned by Glass, and in the predicament they are here, that is, on one a judgment operating a lien on the land, and on the other no such judgment, the abatement would be applied as between Glass or his assignees, and the parties claiming under the vendee, as a credit against the bond from which no judgment lien had resulted; leaving the judgment which was a lien intact from that credit, which could be met by that which was not a lien. Justice to the vendor and assignor of the bonds for the purchase money, demands such application of such a credit. In almost every imaginable predicament, the manner in which the Court below apportioned and applied the credit, gave the appellants *no just cause of complaint, and in most of the conjectured predicaments, the appellants got b3 such apportionment more than they were entitled to. Under these circumstances, I think the decree on their appeal, ought not to be disturbed.

CABELL, P., and BALDWIN, J.,

concurred in the reasoning and opinion of Stanard, J., on the questions discussed, by him ; but they were of opinion that Taylor’s heirs should have been made parties; and that the cause should be sent back, with directions to the plaintiff to amend his bill, and bring them before the court.

BROOKE, J-, concurred in the results of the opinion of Stanard, J.

The following was entered as the decree of the Court:

If the heirs of Eben Taylor had been before the Court below, when the decree was pronounced, this Court would now approve and affirm it in all its parts. But it was erroneous to decree the sale of the land, in the proceedings mentioned, in the absence of the heirs of the said Taylor. The decree is therefore reversed, and the cause is remanded for the purpose of having the said heirs made parties, &c. But as all the points in which the appellants were interested in seeking a reversal of the decree, have, in the opinion of this Court, been correctly decided against them, the Court, while it reverses the decree, awards the costs to the appellee as the party substantially prevailing. 
      
      
        Note by the Judge. In addition to these cases, I think I can-with confidence refer to the experience of the profession, that in the practice.of the Courts of this State, the lien of the judgment has not been deemed dependent on the election, of the record within the year of the elegit. And finally, the act of March 1843, requiring' the docketing of judgments, obviously evinces the conviction of the legislature that such lien by the then existing law, exists irrespective of such election: and'I may add, of the lapse of time within which execution may issue, or be obtained on it.
     
      
      
         Note by the Judas. Adverting to Lomax's Digest of the law respecting real property, since this opinion was prepared, X find a note (1st vol. 289) of the estimable and enlightened editor of that valuable work, in which opinions having a close affinity with the foregoing, are indicated. This concurrence much strengthens my confidence in the correctness of those opinions.
     