
    *Janney’s Ex’or v. Stephen’s Adm’r.
    
    January Term, 1856,
    Richmond.
    Absent, Gilmer, J., and Thompson, J. (The latter ■was related to some of the parties.)
    i. Judgments — Voluntary Payments — Subrogatlon.— The voluntary payment of a debt by judgment, constituting a lien on land, does not entitle the party paying it, to be substituted to the lien of the judgment creditor; the benefit of the doctrine of subrogation being extended by courts of equity only to those who are bound by law to pay debts or liens, as sureties or otherwise, orare compelled to pay in order to protect their own rights.
    
      x. Same — Executions—Priority.—When a person has paid off several executions against another, for some of which he was bound as surety, and for others not bound at all, and when he has received personal property of the debtor, sufficient to satisfy them in part, the oldest j udgments will be presumed to have been satisfied out of the proceeds of the judgment debtor’s property, as they constitute a prior lien on the same.
    3. Same — Order of Satisfaction. — In case the proceeds of lands, on which several judgments obtained at the same time are liens, are insufficient to pay them all, they must be paid pro rata.
    4. Legacies — Charged on Lands — Intention of Testator. — la order to constitute a charge on lauds for the payment of legacies, the intention of the testator must be distinct, and not merely probable or conjectural.
    Joseph Janney was entitled, by assignment, to the benefit of three judgments rendered by the Superior Court for the County of Berkeley on the 17th May, 1821, in favor of John Eloyd against Philip Nadenbousch, Adam Stephen and Edward Beeson, amounting in the whole to the principal sum of upwards of $2,200, besides interest and costs. These judgments were rendered on appeal bonds in which Naden-bousch was the principal obligor, and the other two his sureties. Executions were issued on them against the bodies of the defendants on the 19th of June, 1821, and were levied on Nadenbousch alone, who was committed to custodj’, *the other defendants not being found. While Nadenbousch was in custody under these executions, writs of elegit were issued on each of these judgments, with directions not to levy them on the property of Naden-bousch, he being in custody under the executions against his body. They were delivered to the plaintiff’s counsel, and were not levied at all. Again on the 30th December, 1822, similar writs of elegit were issued on these judgments, and in like manner delivered to the plaintiff's attorney, and neither levied nor returned.
    Under the executions against his body, Philip Nadenbousch remained in custody until the 21st of July, 1824, when he swore out of jail, rendering a schedule of his property, which ultimately produced but partial satisfaction of the executions.
    In the mean time, on the 1st of March, in the year 1822, Adam Stephen being much embarrassed, and the whole of his personal property having been sold under executions at the suit of various creditors, he convej’ed all his land to his brother, the defendant in this suit, Alexander Stephen, by way of mortgage, to secure the payment of several debts and responsibilities in the deed mentioned.
    This deed stipulated that Alexander Stephen should take possession of the lands and apply the rents and profits to the discharge of the debts aforesaid, and to the discharge of one other debt, for which the said Adam Stephen and George Newkirk were bound to the Farmers'and Mechanics Bank of Georgetown by note, to secure the payment of which said Adam Stephen had executed to Jno. Baker & Aaron Jewett a prior deed, dated about the 31st of January, 1821, conveying the first tract mentioned in the mortgage deed, to wit, that of 276 acres on which Adam Stephen dwelt.
    On the 30th May, 1822, Adam Stephen, acknowledging another debt, ¡¡52,163 72, due to Alexander Stephen by obligation dated on that day, payable in installments of six, twelve, eighteen and twenty-four months, executed another deed to Elijah Boyd and John R. Cook, ^conveying the whole of the mortgage lands, with some other real estate, in trust . to secure the payment of that debt.
    Afterwards Alexander Stephen filed a bill in the Superior Court of Chancery at Winchester against Adam Stephen, alleging that the sum of $17,646 01 was due to him on the mortgage, and $2,271 79 on the deed of trust, and praying the sale of property embraced in the deeds for the satisfaction of debts. Adam Stephen answered the bill in April 1823, admitting its allegations, and on the 19th of that month a decree by consent was pronounced, directing the payment of the aggregate amount of the two sums claimed, and on failure thereof a sale of the mortgage premises. The commissioners appointed for that purpose made their report of the sale of seven parcels of land, which seemed to be all the property embraced in the two deeds, except a house and lot in Martinsburg. Alexander Stephen being the purchaser at the price in the aggregate of $10,797 75. This report was confirmed and a final decree pronounced directing conveyances on the 19th April, 1824.
    Under this . sale made to Alexander Stephen, he entered into possession of the land. Adam Stephen left the commonwealth and died insolvent, leaving his brother Alexander his sole heir.
    In 1829 Alexander Stephen filed another bill in the Superior Court of Chancery at Winchester, alleging that he had paid off the debt due from his brother to the Farmers and Mechanics Bank of Georgetown, secured by the deed of trust of January, 1821, that his brother and both the trustees were dead, making the bank and the heirs of the trustees parties defendants, and praying a conveyance of the legal title in confirmation of the right which he had acquired by his purchase under the decree of foreclosure aforesaid. Upon the answer of some of the defendants, and proceedings against others, this bill was brought to hearing, and a final decree pronounced, ap pointing the marshal of the *court trustee in lieu of the deceased Baker & Jewett, and directing him to execute a release to Alexander Stephen of the land embraced in the deed of trust.
    In this state of things, the debt due to the plaintiff Janney upon the judgment in favor of Eloyd remaining entirely unsatisfied, he, in May, 1831, filed his original bill in this cause iri the Superior Court of Chancery at Winchester against Alexander Stephen, claiming a lien upon the lands which he had purchased and held as aforesaid, charging that the mortgage deed executed by Adam to Alexander Stephen was fraudulent, and pray'ing a sale of the lands for the satisfaction of his debt.
    In November, 1831, the defendant Stephen filed his answer, admitting the judgment and executions in favor of Eloyd, but objecting to the jurisdiction of the court, denying the fraud imputed to his mortgage deed, and controverting the plaintiff’s title to relief upon several grounds, of which the following were the principal:
    That if the plaintiff was entitled to a lien on the lands of Adam Stephen, yet the mortgage to the defendant Alexander gave him a preferable lien, and in support of this ground he insisted that several of the debts secured by the mortgage, created liens on the lands of Adam Stephen, independent of the mortgage, and prior in time to the lien claimed by the plaintiff. These debts were the following :
    The debt to the Farmers and Mechanics Bank of Georgetown, secured by the deed of January, 1821;
    The debt of $2,891 75, which he alleged, was for a surplus due upon various executions against Adam Stephen, after the sale of all his personal property by the sheriff, which surplus the defendant Alexander paid; and thirdly,
    The debt of $4,665 due to Isaac S. Eauck, which he alleged was for so much due on account of a legacy left by the will of Robert Stephen to his daughter Mary, the wife' of Eauck, to be paid by Adam Stephen and charged by the will upon the lands devised to Adam *Stephen, being the same lands embraced in the mortgage deed.
    He alleged he had paid other debts under executions against Adam Stephen, which constituted liens upon his lands.
    In June, 1832, the cause was brought to hearing and an interlocutory decree pronounced, whereby proceedings were directed for the sale of the property surrendered by Nadenbousch; the objection to the jurisdiction of the court was overruled; the plaintiff’s right to redeem declared; the preference of his lien over the mortgage asserted, subject, however, to the defendant’s right to be substituted in the place of those creditors of Adam Stephen whose debts he had paid, so as to give the defendant the benefit of any priority of lien which those debts were entitled to; and the case was sent to a commissioner to ascertain, first, the amount due the plaintiff as as-signee of EloyM’s judgments, after crediting the proceeds of Nadenbousch’s property; and second, the amount of debts due from Adam Stephen, paid by Alexander Stephen, and constituting liens upon the lands of Adam Stephen prior in time to Eloyd’s judgments; and the plaintiff had leave to amend his bill.
    An amended bill was accordingly filed, setting forth the fact of the prior deed of trust in favor of the Farmers and Mechanics Bank of Georgetown, which rendered it improper to levy the elegits upon the land embraced in that deed; alleging that the property surrendered by Nadenbousch had been as yet unproductive, and calling- on the defendant to set forth more particularly the debts which he had paid for Adam Stephen, constituting liens on his land, entitled to preference over the plaintiff’s.
    Process,- issued on this bill, was served on the defendant, but he never answered it.
    In October, 1834, the commissioner made his report under the above decree, which was excepted to, and re-committed to him; and in May, 1835, he made his ^second report, in which he stated . several alternate views of this accounts at the instance of either party. It is unnecessary to refer particularly to any of the views presented, except the one adopted by the court. Both accounts were much contested. Prom the view adopted by the court below, it appeared that prior to November 14th, 1821, forty odd executions came to the hands of the sheriff against Adam Stephen, which were levied in the order of their dates on his personal property; 'and that on that day it was sold, and produced the sum of $6,277 28; that this sum did not pay the executions by upwards of $3,000; and that this balance was paid by Alexander Stephen; and that, including interest up to November 14th, 1821, the judgments prior in date to the Lloyd judgment amounted to the sum of $8,699 26.
    The commissioner further reported that there was a prior lien on the property in favor- of Mary Lauck, formerly Mary Stephen, a sister of Adam Stephen, under the wills of her uncle and father, General Adam Stephen and Robert Stephen. The wills were set forth, from which it appeared that General Stephen had died in 1791, leaving to the children of his brother Robert certain legacies charged upon the profits of part of his real estate, and payable by his brother Robert.
    By the will of Robert Stephen, who died in December 1811, he bequeathed to his daughter Mary a legacy of $3000 in full of any legacy she might be entitled to under the will of Gen. Adam Stephen, and in full of her share of her father’s estate. The clause of Robert Stephen’s will, which was Supposed to charge this legacy on the land devised to Adam Stephen, was in the following words:
    “I give and devise to my second son Adam ’ and his heirs forever, the said 650 acres above mentioned, and all the lands, houses, lots, mills and real property which I now hold or am entitled to by devise from my brother Adam Stephen, dec’d, to hold the same with all their appurtenances, to him and his heirs forever. I also give to my son Adam Stephen all the residue of my land *and real property in Berkeley county, not before given to my son Alexander, and except also what is hereinafter devised to Robert Gregory and my daughter Nancy, and to my daughter Margaret and her children. I also give and devise to my said son Adam all my negroes, horses, cattle, sheep, hogs, stock, and all my personal property not otherwise herein disposed of specifically, subject, nevertheless, to the payment of all my debts, and of the legacies to my daughter Mary and my son Alexander Stephen.”
    The legacy to his daughter Mary was in the following words:
    “I give to my daughter Mary the sum of $3000 as well in full of her legacy under the will of her uncle, the said Adam Stephen dec’d, as of what I can afford to give her out of my estate, the same to be paid as follows: $50 per annum to be paid to her until the debts due from my estate are settled and paid off, and then the balance to be paid as soon as it can well be raised.”
    From the mortgage deed, it appeared that all the lands embraced in it, were derived by Adam Stephen under the will of his father Robert, and that none of them were devised under the will of General Adam Stephen, the .title to each tract being traced to a deed made to Robert Stephen himself.
    It was not claimed by Alexander Stephen that he had paid off this legacy, but that he had assumed to pay it, and at any rate that it was a lien on the land.
    The commissioner further reported a prior lien on the land by virtue of the deed of trust for the benefit of the Farmers and Mechanics Bank of Georgetown, already mentioned. The superiority of this lien was not disputed.
    The account was then stated thus:
    Amount paid by Alexander Stephen upon judgments against Adam, prior to Lloyd’s, including interest, to Nov. 14, 1821, the date of sales of personal property, $8,699 26 *(Over) $8,699 26 Deduct amount sales of personal property, Nov. 14, 1821, 6,277 28
    2,421 98
    Interest from Nov. 14,1821, to Feb. 21, 1825, the average time when Alexander’s payments upon the land became due, 474 89
    2,896 87
    To which add Lauck’s legacy, 3,000 00
    And interest thereon from Jan. 1, 1813, to Feb. 21, 1825, 2,185 50
    - 5,185 50
    8,082 37
    Then add the claim of the Farmers and Mechanics Bank of Georgetown, 3,750 00
    11,832 37
    From which deduct the amount of the nett proceeds of the land, 10,547 55
    Leaving a balance due Alex. Ste- 1,284 82 phen, with interest from Feb. 21, 1825.
    The commissioner also reported that the claim of Janney on account of the Lloyd judgments, amounted to the sum of $4,130 97, with interest on $2,576 70, part thereof, from the 10th November, 1832, till paid.
    Such was the report of the commissioner. It appeared from the executions returned with his report, that some of the judgments reported by him as prior in date to the Lloyd judgments were in fact obtained at the same term with those judgments; and it further appeared, that of all the executions reported, only four, to wit: one in favor of John Patterson, for the sum of $352 03, with interest from the 8th day of October, 1819, till paid; one in favor of Francis Boyle, for $357 65, with interest from the 20th December, 1819, till paid; one in favor of Susan Street, for $90, with ^interest from the 1st July, 1820, till paid; and one in favor of the Bank of the Valley in Virginia at Charles-town, for $1,600 67, with interest from the 14th December, 1820, till paid, were against Adam and Alexander Stephen jointly; all the others were paid by Alexander for Adam, without any legal obligation to do so. Of these four judgments, the first three were older than the Lloyd judgments, and the last was obtained at the same term with them.
    On the hearing of the cause, the court held: 1st, That the claim of the Farmers and Mechanics Bank of Georgetown was a lien on the mortgage lands, prior to the Lloyd judgment, and that Alexander Stephen having paid off the note secured by the deed in favor of the bank, was entitled to the benefit of this prior lien. 2d, That the legacy to Mrs. Lauck was a specific charge upon all the property which Adam Stephen took under the will of his father, and that although the defendant Alexander Stephen had not shown that he had actually paid the same, yet as he had assumed to pay it, and the husband of the legatee, in a deposition in the cause, had evinced his willingness and consent to give the defendant the benefit of the lien, he should be entitled to it. 3d, That the excess of the prior judgments, reported by the commissioner, and paid by the defendant, was a superior lien to that of the Lloyd judgments. The report of the commissioner, as already stated, was therefore confirmed, and the court directed that the real estate, the subject of controversy, should be sold, by commissioners appointed for the purpose, and that Alexander Stephen should have leave to bid for the same to the extent of $11,832 37, with interest on the principal thereof, to the day of sale, without paying any cash or giving his bonds therefor — in other words, should pay nothing for the property, except what it might sell for over and above the said sum of money. The decree directed the commissioners to report their proceedings to the court in order to a final decree.
    From this decree Janney appealed to this court.
    *Johnston and Robinson, for appellant:
    1st. As to the judgments. Alexander Stephen was under no obligation to pay the most of the judgments claimed to be prior liens to those of the Lloyd judgments; for he was bound as security in only four of them, as appears by the evidence returned with the report of the commissioner. As to all the rest, he was a mere volunteer, and as such is not entitled to the benefit of the equitable principle of subrogation. That doctrine extends its benefits only to those who are bound by law to discharge a debt or lien, as security or otherwise, or are compelled to pay, in order to protect their own rights. Christian v. Ellis, 1 Grat. 396; Bowyer v. Hughart et al., 9 Grat. 336, 353; Douglass v. Fagg, 8 Leigh, 602; Bank of U. S. v. Winston, 2 Brock. 254; Gadsden v. Brown, et al., 1 Speers’ Eq. R. (S. C.) 41; Sandford v. McLain, 3 Paige, 117; Wilkes v. Harper, 1 Comstock, 586. Even one of these judgments was of the same term with the Lloyd judgments, and so is entitled to no priority.
    2d. As to Lauck’s legacy. The will of Adam Stephen the elder, is copied in the record, but has nothing to do with the case. He, indeed, left a legacy of $3,000 to Mary Stephen, daughter of Robert, charged on his lands, or their rents and profits, but the title of the lands we seek to subject, are traced to Robert Stephen, not from Adam Stephen the elder, but from other persons —so that this question is affected by Robert Stephen’s will only. There is no charging of the real estate in this will with the payment of debts and legacies, nor any provision blending real and personal estate together and charging them with payment of debts. In the third clause is a devise of lands to his son, Adam Stephen the younger, and in a distinct clause he bequeaths various kinds of personal property, which he does charge with the payment of his debts and certain legacies, to his daughter Mary and son Alexander. This charge on the personal property cannot, we submit, be stretched over the real ^estate devised to Adam. Each devise of real estate in the will is distinct in itself, and is connected with the other, and with the bequest of personal property by the words “and also.”
    The courts go further in favor of creditors than of legatees, but the general rule as to them both is, that real estate is not to be charged with the payment of debts and legacies, unless expressly so charged. It is not to be charged when the intention of the testator is merely probable or conjectural, and when the will is susceptible of another interpretation. 1 Roper on Legacies, p. 454, and cases there cited. Now the construction we give to the clause is, that the natural interpretation would discharge the real estate and charge only the personal — certainly it is susceptible of this interpretation, and so is within the g'eneral rule. Davis v. Gardiner, 2 P. Will. 188, cited at the page of Roper above stated, is a strong case illustrating the rule. See also 2 Lomax on Executors, p. 90-1, and cases there cited ; William and Mary College v. Hodgson, 6 Mtmf. 163; Lupton v. Lupton, 2 Johnson’s Ch. Rep. 614, 627-8; Parker v. Fearnley, 1 Cond. Ch. Rep. 604; Warren v. Davies, 7 Cond. Ch. Rep. 2SS.
    The decree should be, as we submit, for a sale of the subject, giving a preference to our lien, and without prejudice to our right to resort to Alexander Stephen for the rents and profits since he has been in possession.
    No appearance for the appellee.
    
      
      For monographic note on Subrogation, see end of case.
    
    
      
      Judgments — Voluntary Payment — Subrogation. — The voluntary payment of a judgment, constituting a lien on lands, does entitle the party paying it, to be substituted to the lien of the judgment creditor; the equitable doctrine of subrogation does not apply. Nor this proposition the principal case is cited and ’ followed in Feamster v. Withrow, 12 W. Va. 658.
      And in Neely v. Jones, 16 W. Va. 639, it is said, it is settled by the authorities that it is only in cases where the person paying the debt stands in the relation of surety, or is compelled to pay in order to protect his own interest that a court of equity will substitute him in the place of the creditor, as a matter of course, without any agreement to that effect. Citing Janney v. Stephens, 2 Pat. & H. 11. See monographic note on “Subrogation.”
    
    
      
      Same — Relation Back. — See principal case cited on this subject in foot-note to Jones v. Myrick, 8 Gratt. 179; also in Hockman v. Hockman, 93 Va. 457, 25 S. E. Rep. 534. See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   FIELD, P.

This cause coming on to be heard on the transcript of the record, -was argued by counsel. On consideration whereof, the court is of opinion that there is no error in the decree of the 2nd June, 1836, in establishing the amount of the plaintiff’s claim at $4,130 97, with interest on $2,576 70, part thereof, from November 10th, 1832, nor so far as it gave a priority of lien to the claim of the Farmers and Mechanics Bank of Georgetown upon the lands of Adam Stephen, which *the plaintiff seeks to subject to the payment of his judgments. But that decree is erroneous, so far as it held that the legacy to Mrs. Lauck constituted a lien on those lands, and is also erroneous in holding that Alexander Stephen, by subro-gation, was entitled to priority of lien over the plaintiff for the whole amount of the ’sum paid by him on account of the executions against Adam Stephen, over and above the amount raised by the sale of the personal property of Adam Stephen under those executions. As far as the money so paid by Alexander Stephen, was applied in satisfaction of executions in which Alexander Stephen was not so bound as surety, the payment was voluntary, and gave him no right of subrogation in respect to such executions, (Wilkes v. Harper, 1 Comstock, 586; Sandford v. McLain, 3 Paige, 117;) or the judgments upon which they had been issued; but so far as the .money paid by Alexander Stephen was applied to the payment of executions for which he was bound as surety, the right of subrogation did attach in his favor. Amongst the executions that were in the sheriff’s hands against Adam Stephen, there were only four in which Alexander Stephen was bound as surety, to wit: John Patterson’s, Francis Boyle’s, Susan Street’s, and the execution of "the Valley Bank. The three first of these were amongst the oldest that were in the sheriff’s hands, and being thereupon entitled to priority, must be regarded as having been satisfied out of the proceeds of the sale of Adam Stephen’s personal property, the sale of which amounted to $6,277 28, a sum not sufficient to satisfy all the executions by several thousand dollars, leaving, consequently, several executions unpaid; Of the executions in this class, was that of the Valley Bank, for the payment of which Alexander Stephen was bound as surety, and to the satisfaction of which his money was applied; and he thereby became entitled to be substituted to the rights of the Valley Bank as to the lien of the judgment. This.judgment amounted to $1,659 64. So! far, then, as the decree ■ of June 2d, *1836, gave to Alexander Stephen the benefit of this lien, it was correct; but inasmuch as Lloyd’s judgments and the judgment for the bank were both recovered at the same term, (May, 1821,) neither was entitled to any priority over the other. 1 Term Reports, 117. But in case of a deficiency of the proceeds of the sale of the land to satisfy all the judgments, each would have to abate pro rata. Hence so much of the said decree as conflicts with this principle is erroneous.

The court doth therefore adjudge, order and decree, that the decree of the 2d June, 1836, be reversed and annulled, and that the appellee, Benjamin Comegys, sheriff and administrator of Alexander Stephen, deceased, out of the assets of his intestate, in his hands to be administered, pay to the appellant, Robert Hull, executor of Joseph Janney, deceased, the costs expended by the appellant in prosecuting his appeal aforesaid in this court. And this court proceeding to give such decree as the Circuit Superior Court of Law and Chancery ought to have given, it is further adjudged, ordered and decreed, that unless the appel-lees, or some person for them, shall, within six months from the date of this decree, pay to the plaintiff Robert Hull, executor of Joseph Janney, deceased, the sum of $4,130 97, with interest on $2,576 70, part thereof, at the rate of six per centum per annum, from the 10th day of November, 1832, until paid, and the costs expended by the plaintiff in prosecuting this suit, David H. Conrad and Robert Y. Conrad, who are hereby appointed commissioners for that purpose, having given the necessary receiver’s bond in the penal sum of $20,000, payable to the Commonwealth of Virginia, and conditioned according to law and having also first advertised the time and place of sale for six weeks in some newspaper printed in the town of Martins-burg, at the front door of the court-house of Berkeley county, and some two or more public places in the neighborhood of the lands, do sell at public auction, to the highest bidder, all the lands in the bill and proceedings *mentioned and referred to, being the same that were purchased by Alexander Stephen under the decree in the case of Stephen v. Stephen, also referred to in the bill — upon the following terms, that is to say: One-third of the purchase money to be paid down in cash, one-third on a credit of one year, and one-third on a credit of two years, the deferred installments to be secured by bonds with good security and the legal title to be retained as further security. And the said commissioners having given the receiver’s bond above required of them, are directed to receive the cash payment, and to collect, when payable, the amount due on the deferred installments; and out of the proceeds of sale, after defraying the costs of executing this decree, they are directed to pay to Benjamin Comegys, sheriff and administrator of Alexander Stephen, deceased, the sum of $3,750, with interest thereon, at the rate ■of six per centum per annum, from the 25th day of February, 1825, until paid, that being the amount of the debt of the Farmers and Mechanics Bank of Georgetown ; and out of the residue of the purchase money, pay to the said Robert Hull, executor of Joseph Janney, deceased, the sum of $4,130 97., with interest, at the rate of six per centum per annum, on $2,576 70, part thereof, from the 10th day of November, 1832, until paid, and the costs of the plaintiff expended in the prosecution of this suit; and pay to the said Comegys, sheriff and administrator as aforesaid, the sum of $1,659 64, the amount of debt of the Valley Bank on the 1st day of July, 1821, with interest on $1,600 67, part thereof, at the rate of six per cent, per annum, from the 1st day of July, 1821, until paid ; and the overplus, if any, pay over as the court may hereafter direct. But if there should not be a sum sufficient for the payment of both of the last mentioned claims in full, then and in that case so much thereof as there may he shall be applied pro rata towards the satisfaction of the same. And the said commissioners are directed to make report of their proceedings ^herein to the Circuit Court of Berkelej' County. But this decree is to be without prejudice to any other or further proceedings which the plaintiff may be entitled to have, to subject the rents, issues and profits of said land to the satisfaction of any balance which may remain due to him after the proper application of the proceeds of the sale made pursuant to this decree. Which is ordered to be certified to the said Circuit Court of Berkeley County.

CLOPTON, J., and TYLER, J., concurred.  