
    *Robinson v. Shacklett.
    September Term, 1877,
    Staunton.
    Absent, Anderson, J.
    In 1853, S and wife sold and conveyed to B land for $2,100, retaining a vendor’s lien. B paid $1,500, and gave three bonds, each for $200, two of which were assigned to II and one to T. B conveyed the land to T in trust to secure a debt of $627 to W. In May, 1858, B and T made a private sale of this land to A and his wife for $2,100, payable $700 on the 1st of August, 1858, and the balance in payments extending to 1863; and A and wife paid of the purchase money $592, which was applied to the debt of W. In 1860, IT and T filed a bill against A and wife and others for specific execution of the contract, and to sell the land to pay the vendor’s lien held by H and T. In May, looQ, before a decree in the cause, T, B and A and wife made a private sale of the land to R for $2,100, payable $1,000 October 1st, 1860, and tnree annual payments. R paid to T $1,000, and gave his bonds to T for the balance. This sale was confirmed by the court at the October term, 1860, and T was appointed a receiver to collect the money and pay it out to the persons entitled. But he was directed not to pay H until he filed the bonds held by him among the papers. T paid the debt of W, retained enough to pay H, and paid batanee to B. The bond of R, due in 1862, was assigned by B and T to S, who recovered a judgment upon it, and then R filed a bill against S to enjoin the judgment. The injunction was granted and afterwards dissolved. And then R filed a bill of review, on the ground that the wives of B and A were entitled to a contingent right of dower in the land, and that IT had a lien on the land. The bill of review was dismissed; and R appealed — Heed:
    1. Bonds — Lien on Xjand. — As the bonds of R were left in the hands of T, the receiver, to pay the debt of II, and were sufficient for that purpose, ’'if R has paid them to T, H can have no lien on the land.
    2. Dower. — A’s wife having been a party to the suit, she cannot claim dower in the land; and the proceeds of the sale having been exhausted by the prior liens upon it, there is no surplus out of which she may be endowed.
    3. Same — Surplus after Satisfaction of Liens. — The land having been sold to satisfy the liens of H and T, the wife of B can have no right of dower in the land in the hands of the purchaser R; any right she may have musr be in the surplus of the purchase money, after satisfying the prior liens. Whether she has an interest in this suiplus, must depend upon the true construction of the statute, Code of 1849, ch. 110, § 3; Code of 1873, cli. 106, § 3. That is a question between the assignee S and the wife of B, in which R, the purchaser, is not concerned. But to avoid the hazard of a contest with her, he may bring them before the court to have their respective rights settled by the court.
    4. Appeal — Amendment.—R allowed to amend his bill and make Mrs. B a party. And, if the other suit is still pending, to make all the parties to it defendants, and the two cases may be heard together, and a final decree entered adjudicating the rights of all the parties.
    Deed of Trust Executed on Same Day as Deed of Conveyance.—In Hurst v. Dulaney, 87 Va. 445, the principal care was cited for the proposition that the wife of a vendee cannot claim dower in land where the vendee executed a deed of trust on the land on the same day that the deed of conveyance was executed, the two transactions being considered as one in equity. Citing also, Gilliam v. Moore, 4 Reigh 30; Wheatley v. Calhoun, 12 Teigh 264; Wilson v. Davisson, 2 Rob. 384; Summers v. Darne, 31 Gratt. 791; Coffman v. Coffman, 79 Va. 504.
    In November, 1871, William Robinson filed his bill in the county court of Rocking-ham to enjoin a judgment recovered against him by Samuel Shacklett, for $350, with interest from the 1st of October. 1862. In his bill he states that he purchased of John Ap-plegate and Hannah Applegate his wife, a tract of land in the county of Rockingham. This land was originally owned by John Blain, or perhaps by E. T. H. Warren, as trustee for Blain’s wife and by them was sold to John _Applegate, or to Hannah his wife. Complainant never knew whether Ap-plegate or his wife owned the land, but both signed the article of agreement for the sale to the complainant. The said Applegates were, at the date of the sale, largely indebted to John Blain. or to his wife. *for purchase money on said land.
    These bonds or for $200 each, were executed about fourteen or fifteen years ago, and are now held by Eugene Anderson.
    Complainant paid $1,000 down, and has since made other payments. He executed one bond for $350 to E. T. H. Warren, trustee, on the 14th of February. 1861, payable on the 1st of October, 1862, which has been assigned by Warren and Blain to Shacklett & Gibbons; on which Shacklett, as surviving partner, has recovered a judgment, and an execution thereon is in the hands of the sheriff.
    He says further, that by the agreement he was to have a good and perfect title to the land upon his making the cash payment, but he has never received it, and he understands that the wife of John Blain has already announced her determination to assert her dower rights in said land, and he fears that the wife of Applegate may set up a similar claim.
    The land being thus encumbered by the Applegate debt, and the title to the same not being clear, complainant is not willing to pay the remaining purchase money until these matters have been cleared up, the in-cumbrance removed and the title perfected. And, making Shacklett and the sheriff defendants, he asks for an injunction to the judgment, and for general relief.
    Shacklett answered the bill. The facts appear to be as follows: In 1853 John Blain purchased from Samuel . Wheelbarger the tract of land in the bill mentioned; and as a part of the consideration executed three bonds each for $300 to Wheelbarger, payable respectively in 1856, '57 and '58; to secure which bonds a lien was retained on said land. Two of these bonds were assigned by Wheelbarger to A. W. and J. G. Brown, and by them assigned to George H. Anderson, now a resident of Iowa. The other bond was assigned to F. K. *lSpeck, . and by Speck to E. T. H. Warren. In February, 1857, Blain conveyed the land to said Warren to secure a debt of $627.92, due to William R. Warren. In May, 1858, John Blain and E. T. H. Warren made a private sale of said land to John Applegate and wife for $2,100 payable $700 on'the 1st of August, 1858, and the balance in payments extending down to September, 1863; and Applegate and wife paid of this purchase money $592. In 1860, Applegate and wife being in default, a chancery suit was instituted in the circuit court of Rockingham ■ in the name of Harvey Anderson and E. T. H. Warren, against Apple-gate and wife and others, to enforce a specific execution of said contract, and to provide a sale of said land to pay the vendor’s lien held by Anderson and Warren. In May, 1860, before ,a decree was made in the cause, E. T. H. Warren, trustee, John Blain and John Apple-gate and his wife, united in making a private sale of the land to William Robinson at the price of'$3,100 payable $1,000 on 1st of October, 1860, and the residue in three annual payments. Of tliis Robinson paid to Warren $1,000, and to Applegate $50; and executed his three bonds each for $350, falling due October 1st, 1861-’62-’63, payable to Warren. This sale was confirmed by the court at the October term, 1860, and Warren was appointed a receiver to collect the money and pay it out to the persons entitled. But he was directed not to pay Anderson until he should file the bonds held by him among the papers of the cause.
    The bond of Robinson due in October, 1862. was assigned to Shacklett & Gibbons by Blain and Warren. And it appears that Warren having paid the debt secured by the deed of trust of Blain to him, and reserved in his hands $522 to pay Anderson’s liens, paid over the balance of the purchase money to Blain.
    *The cause came on to be heard on the 5th of March, 1873, when the court dissolved the injunction and dismissed the bill.
    At the July term of 'the court, 1873, the plaintiff by leave of the court filed his bill of review; and for grounds of error insisted: 1st. That the wife-of John Blain not having been a party to the deed of trust to E. T. H. Warren, nor to the sale to the complainant, nor to the cause of Anderson, &c. v. Applegate &c., she was entitled to dower in the land. 2d. That the complainant should not be required to pay said debt- until the liens of Harvey Anderson are discharged. His were vendor’s liens upon the property, and have priority to any interest that John Blain had therein, and no act of Blain, or Warren, or both, could deprive Anderson of his right to look to complainant for payment of his debts having such priority out of any sum which complainant might owe; or to proceed against the land in the hands of complainant. The cause seems to have been transferred to the circuit court of Rockingham. And Shack-lett demurred to and answered the bill of review. He insists it was no ground of eiror that the wife: of John Blain did not unite in the sale; that Robinson did not contract for her contingent dower interest; but bought the land in a chancery suit, subject to any rights the wife might have. And he insisted that if Robinson paid the bonds reserved to pay Anderson to an authorized person. Anderson must look to that person, and not to the land or to Robinson. If he paid them to a .person unauthorized to receive the payment, then it was at his own risk and in his own wrong. If he has not paid them he owes them still, and they are ample to pay Anderson.
    The cause came on to be heard on the — day of February, 1875, when the court held that there was no error in the decree of the 5th of March, 1873, dissolving the ^injunction and dismissing the bill; and the injunction was dissolved and the bill of review and original bill were dismissed. And thereupon Robinson applied to his court for an appeal; which was allowed.
    John E. Roller, for the appellant.
    William B. Compton, for the appellee.
   Staples, J.,

delivered the opinion of the court.

It appears to the court that the appellant paid the sum of one thousand and fifty dollars in October, 1860, toward the purchase money of the land in his possession. This left a balance of one thousand and fifty dollars, for which he executed three bonds of three hundred and fifty dollars each, payable the 1st of October, 1861, 1862 and 1863. One of these bonds, that maturing in 1862, was assigned to Shacklett & Gibbons, and is the subject of controversy here. The other two were retained, or so much of them as was necessary. to discharge the lien held by Harvey Anderson. It was, however, provided in the decree of November, i860, that Anderson should not be paid until the bonds held by him were filed among the papers of the cause. Whether they were ever filed, or whether Anderson has been paid, does not distinctly appear, nor is it important now to inquire. The amount due him was to be paid out of the appellant’s bonds executed to Warren as trustee, and left in the hands of the latter for that purpose. If the appellant has made the payment to Warren, such payment protects him against Anderson’s claim, whether the latter received the money or not, because Warren was fully authorized to collect and pay over the amount due by the appellant. If Warren *has misapplied the money. Anderson must look..to hipi and not to the appellant..

Tt is worthy of notice, however, that neither in his original bill nor in his bill of review, does the appellant directly assert that he has paid to Warren, or any one else, the bonds set apart for the benefit of Anderson. Nor has he offered any proof of such payment. The record contains no evidence even tending to show the fact. If the appellant has not paid his bonds, then he has in his own hands ample security against Anderson's lien. The amount still due by him and which cannot be diverted, is sufficient to discharge that lien, which has priority over all other encumbrances.

The court is therefore of opinion that the appellant has no claim to relief against the judgment of the appellee by reason of the existence of the lien, if such there be, to which Harvey Anderson, or those claiming under him, are entitled.

It further appears to the court that Mrs. Hannah Applegate is not entitled to dower in the land held by the appellant, or in the proceeds of the sale thereof. She was a party to the suit in which the decree of November, 1860, was rendered, and whether she is or is not bound by that decree, it seems that she, or her husband, only paid the sum of five hundred and ninety-two dollars, which was applied to the deed of trust executed by Blain to secure the debt due William Warren. After satisfying the liens upon the land paramount to any claim which she or her husband might assert, there was no surplus upon which her claim of dower could attach. If there was any such surplus it was too small in amount to be taken into account either for the benefit of Mrs. Applegate or as affording just ground for complaint on the part of the appellant.

*The court is therefore of opinion that the appellant is not entitled to relief against the judgment by reason of any supposed claim of Mrs. Applegate to dower in the lands or in the proceeds of sale thereof.—

It further appears to the court that in September, 1853, Samuel Wheelbarger and wife sold and conveyed the land now held by appellant to John Blain, at the price of twenty-one hundred dollars; of which seven hundred and fifty dollars were paid in hand. To secure the residue of the purchase money, a lien was reserved on the land by Wheel-barger, and the bonds of the purchaser given, one for $250 payable on demand, two for $200 each, payable 1st of March, 1854 and 1855, one for $100, payable the 1st of September, 1855, and three others for $200 each, payable the 1st of March, 1856, 1857 and 1858. Tt seems that the three last mentioned bonds were assigned, two of them to Anderson, and the other to E. T. H. Warren, and were the subject of the suit brought by Anderson and Warren, in which the decree of November, 1860, was rendered, [t does not appear what has become of the other bonds executed by Blain to Wheelbarger. It is very probable they have been long since paid. At all events, no question touching them is raised by this record. The appellant does not say they are still due; nor does he make any complaint that they constitute a lien on the land, or in any manner affect his title. If they have been satisfied, and it must be so assumed for the purposes of this case, Blain has paid about fifteen hundred dollars of the purchase money; to that extent he had a perfect title to the land, subject only to the liens of the bonds held by Anderson and Warren. The question is whether his widow is entitled to dower, either in the land or in the proceeds of sale remaining after satisfying the amount due Anderson and Warren, she not having been a party to the suit in *which the appellant became the purchaser, and so far as this record shows, not having relinquished any -claim or interest she might have.

Under the decision of this court in the case of Wilson et als. v. Davisson, 2 Rob. R. 384, it is clear that she would not be entitled to dower in the land nor in the proceeds of sale, as against the purchaser at a judicial sale. At the revisal of 1849, the legislature, in view of the decision in Wilson v. Davisson, adopted the following provision (Code of 1849, chap. 110, sec. 3): “Where land is bona fide sold in the lifetime of the husband to satisfy a lien or encumbrance thereon, created by deed, in which the wife has united, or created before marriage, or otherwise paramount to the wife, she shall have no right to be endowed in said land. But if a surplus of the proceeds remain after satisfying the said lieu or encumbrance, and a court of equity have jurisdiction of the case, it may make such order as may seem to it proper to secure her right.” It seems that this section was reported by the revisors without the last clause; so as to conform the law to the opinion of the majority of the judges in Wilson v. Davisson. The legislature added the last clause, which conforms to the opinion of Judge Allen, who dissented in that case. Code of 1849, chap. 110 — note. The object of the statute seems to be to provide for a case in which the land is sold in the lifetime of the husband, when the wife has a mere contingent right of dower. Whether the wife ought not to be a party to the suit brought to enforce the lien or encumbrance, and if so, whether she is concluded by the decree; whether the court 'is bound to make an order at all events for the protection of her rights, or whether it has a discretion on the subject; and whether, if the court fails to make such order and directs the surplus to be paid to the husband or distributed among his creditors, the *wife has, after the death of the husband, any remedy, and if so, what it is, are difficult questions which do not arise in the present aspect of the case, and ought not now to be passed upon. One thing would seem, however, to be very clear, that the land is not liable in the hands of the purchaser. nor is he bound to see to the application of the purchase money, or that an order is entered for the protection of the rights of the wife in the event of her surviving the husband. Daniel v. Leitch, 13 Gratt. 195, 211; Jones v. Tatum, 19 Gratt. 720.

In the suit brought by Anderson & Warren ,against Blain and Applegate and wife, to enforce their lien as assignees of Wheel-barger, Mrs. Blain was not made a party; nor does it appear that any order was entered for the protection of her contingent right of dower. The decree merely directs that Warren, who was appointed receiver, should collect the purchase money from the appellant, and after paying the costs of suit, he should pay the plaintiffs according to their priorities —pay the amounts due from John and Hannah Applegate, and the remainder to be distributed according to the rights of the parties. It would seem, as already stated, that the appellant has paid all the purchase money except the bond in controversy, and the amount set apart to discharge the Anderson lien. It may. be that he has also satisfied the latter. Whether he has or not, Anderson’s claim has priority over all others, and the appellant may safely so apply the reserved fund. So that the only part of the proceeds of sale unpaid, to ¡which' the dower claim of Mrs. Blain can attach, is the bond in controversy. Whether she has any valid claim to that fund, is a question between her and the appellee Henry Shacklett, and not between her and the appellant. Whether the appellant, knowing that she is still surviving her husband, and may assert her claim to the fund in controversy, is bound *at his peril to take notice of that claim, is a question we are not called on to decide. He is certainly not bound to incur the hazard of a controversy with Mrs. Blain, after having paid the appellee. He has the right, if he pleases, to bring the respective claimants before the court, that they may litigate the question between them, and that the court may decide who has the preferable right to the fund. Mrs. Blain being interested in the subject of controversy, a due regard for her rights required she should be heard before the payment to the appellee.

It can make no difference that the appellant was a purchaser at a judicial sale. By the terms of the contract between him and Warren and Applegate, the appellant was entitled to a deed with general warranty from Applegate and wife. This contract was confirmed by the court, none of the parties making objection. The appellee in taking an assignment of the bond must of course take it subject to all the equities attaching to it in the hands of the original parties, but if there had been no contract for a general warranty deed, the appellant would be entitled to have it judicially determined which of the parties has the best right to the subject of controversy.

He has, however, failed to make Mrs Blain a party to his suit, as it was incumbent upon him to do. This omission can Pc remedied by an amended bill bringing her before the court, and containing such aver-ments as' will properly present the issue between her and the appellee. The reco.rd of the suit of Anderson and Warren v. Blain. Applegate and wife, is filed as an exhibit in this case. It is not certain it is a completed record.- If it is, no final decree, has ever, been rendered in the cause, and it is yet pending in, tffe;. court below.

*Tbe more regular course for the appellant to .have pursued Would have been to file his petition in that cause and to have brought hi,s case to a hearing in connection with it. This defect is, however, not a radical one; the difficulty, if such it be, can be obviated by treating the present bill as a mere adjunct of the original cause and in the nature of a petition. The decree of the circuit court must be reversed and the case remanded to that court for further proceedings in conformity with the views herein expressed. The appellant has leave to amend his bill by making Mrs. Blain and the parties to . the original cause also parties to this suit, so that the two cases may be heard together and a final decree entered adjudicating the rights of all the parties.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record,'that John Blain, by the deed of conveyance from Samuel Wheel-barger and wife and payment of part of the purchase money, acquired such title to the land held by the appellant, as may entitle his widow to dower in the proceeds remaining after satisfying the lien of said Wheel-barger, or those claiming under him, stipulated to be paid by the appellant. She is, therefore, interested in the subject matter of controversy, and ought to have been before the court before a final adjudication of the questions raised by the appellant’s bill. And the said circuit court, instead of dismissing said bill, ought to have required the appellant to amend the same by making her a party to his suit, and *lhe said bill so amended ought to have been treated as a petition in the case of Anderson & als v. Applegate & wife, and heard in connection therewith, and as a part of said cause.

The court is further of opinion, that the errors aforesaid were properly the subject of the bill of review filed by the appellant, and the said circuit court, instead of dismissing said bill, ought to have retained the same, and upon a final hearing to have reversed the decree dismissing the said original bill, and thereupon proceeded to adjudicate the rights of the parties according to the principles herein announced.

Wherefore, for the error aforesaid, it is decreed and ordered that the said decrees of the circuit court dismissing the bill of review and the original bill, be reversed and annulled, and that the appellee. Shacklett, recover against the .appellant his costs by him expended in the defence of the appeal aforesaid here, he being the party substantially prevailing.

And this court, proceeding to render such decree as the said circuit court ought to have rendered, it is ordered that the ap-¡ pellant have leave to amend his bill by making Mrs. Blain, as also the persons who were parties in-the case of Anderson.and others v. Applegate and others, parties to this suit, and said amended bill be treated and held as a petition in the case aforesaid, and heard in connection therewith; and the said circuit court, upon the case as presented, will adjudicate the rights of the parties and render such decree as may be just in the premises; which is ordered to be certified to the said circuit court of Rockingham county.

Decree reversed, with costs to the appellee.  