
    *Alley & als. v. Rogers.
    January Term, 1869, Richmond,
    i. Case at Bar—Negotiable Notes—Confederate Currency.—On the 24th of May 1859, G. conveyed real estate in Henrico to W. to secure four negotiable notes of that date, payable in 6,12,18 and 24 months to R., who lived in Kentucky. The notes were endorsed by R. and deposited by him in the F. bank for collection. On the 21st of February 1861, G. conveyed to A. this real estate, with much more, in trust for payment of his debts; debts being a lien upon any of the property to be paid first. On the 17th of April 1863, A. sold the greater part of the real estate conveyed to W., and conveyed the same by deeds of different dates to the purchasers; and some of these purchasers conveyed subsequently to others. The last two of the notes aforesaid were protested for nonpayment, and remained in the bank until the 14th of September 1863, when A. paid them to the bank in Confederate notes, and took them up; Confederate notes being then the only currency, and being generally received by the banks in payment of notes either owned by the bank or deposited for collection, and being then depreciated to about twelve for one in gold; but the deed of trust to W. was not released. After the war R. filed his bill claiming that the two notes were still due, and seeking to enforce the trust for their payment, and he made G-., the bank. A., and the pnrchasers from A., and the present holders, parties. Held :
    1. Note in Bank for Collection—Protested—Payment to Bank.—If a note deposited for collection in a bank where it is made payable, is not paid at maturity, but being protested, is permitted by the owner to remain in the bank, however long or from whatever motive, he may permit it thus to remain, there, it may, as a general rule, be safely paid to the bank by the debtor: provided he has no notice that the bank in fact has no authority to receive the money.
    2. Same—Payment in Confederate Currency.—In regard to notes deposited at a bank for collection during the war, when Confederate money was the only currency, they might properly have been paid in such money; at least without notice that other money was demanded.
    3. Same—Protested—Left in Bank—Qumre.—In regard to notes payable at bank before the war, deposited for collection and protested for non-payment, but neglected *to be withdrawn by the owner residing in this State —Queers: whether, after two or three years, the bank had authority to receive payment of such notes in a currency which came into existence after the protest of the notes, and had depreciated in value at the time of payment as twelve to one compared with specie, in which payment might legally have been demanded.
    4. Same—Non-Resident Owner—Payment in Confederate Currency.—in this case of a non-resident owner, the bank had no authority to receive payment of the two notes in the depreciated Confederate currency; the payment by A. was avoid payment, and the said notes are still due and unpaid, and the deed of trust to W. to secure them is a subsisting security; and R. is entitled to have the same enforced for the payment of said notes.
    5. Case at Bar—Sale of Land to Pay Debt.—R. is entitled to have a decree for the sale of the said real estate, without first proceeding against G., or the bank, or A., or any other person.
    6. Proceedings against Purchasers of Land, Subject to Liens.—if it is not necessary to sell the whole of the real estate conveyed to W.. to pay said notes, the part not sold by A. is first to be sold; and after applying the proceeds of said sale to the payment pro tanto of said notes, the balance due upon them should be raised ratably out of the lots now held by the purchasers respectively, in proportion to the amounts of the purchase money for which they were respectively sold by A. on the 17th April 1863, without regard to the dates of the deeds from A. to the purchasers.
    7. Decree—Interlocutory—Decree between Co-Defendants.—The decree for the sale of the land for the payment of the said notes, being interlocutory, though it is affirmed on appeal, there may be a decree between the co-defendants when the cause goes back, if it is a proper case for such a decree.
    On the 24th of May, 1859, Benjamin W. Green, by deed of trust dated on that day and duly recorded, conveyed certain real estate in the town of Sidney, in the county of Henrico, to John G. Williams and Mortimer M. Young', as trustees, to secure to B. R. Rogers the payment of fottr negotiable notes, dated on the same day, and payable at 6, 12, 18 and 24 months after date, at the Rarmers Bank of Virginia. The word “Rarmers” was omitted in the notes, and there was a blank in its place, but they were plainly intended to be ^payable at the Rarmers Bank of Virginia, and were so treated by the parties. On the 28th of August, 1860, the said J. G. Williams, M. M. Young and B. R. Rogers, by deed dated on that day, released to B. W. Green a portion of the said real estate conveyed by the said deed of trust. The notes were deposited in the said bank for collection. The first and second were paid at maturity, or at least no question arises in regard to them in this case. The third and fourth for $1,811 08, due November 27, 1860, and $1,860 94, due May 27, 1861, were not paid at maturity, but were protested for non-payment.
    On the 21st of Rebruary 1861, the said B. W. Green and his wife, by deed of trust dated on that day, conveyed all his property, including his interest in the said real estate in Sidney, to A. D. Williams and others, trustees, to secure the payment of certain debts upon certain terms and conditions therein mentioned. A. D. Williams alone acted as trustee under that deed; and on the 17th of April, 1863, he sold a part of the property thereby conveyed, including the greater part of the real estate in the town of Sidney, conveyed by the deed of trust to J. G. Williams and M. M. Young, and not released as aforesaid. By the terms of the deed of trust from Green and wife to A. D. Williams, &c., the trustee was directed, after paying the expenses of the trust, to apply the trust fund in the first place to the payment of “all liens by deeds of trust, judgments, or otherwise, upon said trust property. ’ ’
    On the 14th of September 1863, about five months after the sale made by said A. D. Williams as aforesaid, he paid the amount of the said two protested negotiable notes at the Rarmers Bank of Virginia in Confederate money at par, though the same was then depreciated in value in comparison with gold as twelve to one, and the notes were thereupon delivered 'to him by *the receiving teller of the bank, to whom the Confederate money was paid.
    At the time of the execution of the deed of trust from Green to J. G. Williams and M. M. Young, for the benefit of B. R. Rogers, the said Rogers was a resident of Bourbon county, in the State of Kentucky, as is stated in the deed, and he has ever since continued to reside there. It does not appear that he had any agent in Virginia to attend to the collection of the said two notes, except so far as the said bank might be considered as such an agent. Something is said in the record as to Messrs. Macfarland and Roberts having been his agents or attorneys, but there is no proof of the fact, and certainly none that they had any agency in regard to the said notes before the end of the war. The notes remained in the bank after they were protested, and until they were paid as aforesaid.
    After A. D. Williams had paid the amount of the said two notes as aforesaid, he called on J. G. Williams and M. M. Young, trustees in the deed for the benefit of B. R. Rogers, and requested them to execute a release of that deed, at the same time tendering to them for execution such a release which had been previously prepared; but they refused to do so, as B. R. Rogers was not a party to the said release. A. D. Williams thereafter brought a suit in chancery to compel the execution of such a release, but the papers belonging to the suit were destroyed in the great fire in Richmond on the 3d of April 1865, and the suit seems to have been since abandoned.
    When the war was over, B. R. Rogers, after being informed of what had transpired during the war in regard to the said notes and the property conveyed for their security as aforesaid, claimed the said notes as still being due and unpaid to him, and requested the trustees in the deed for his benefit to proceed to execute the trusts of the same; which, however, they declined *to do, except under a decree of a court of chancery. And accordingly the present suit was brought by him for the purpose of obtaining such a decree. The bill charges that William A. Alley is in possession of a portion of the said real estate, and claims to be the owner thereof under a conveyance from the said A. D. Williams, trustee, and George N. Gwathmey, dated the 24th of January 1865, and that Martin M. Ripscomb, trustee for Adeline T. Ripscomb, is in possession of other portions of said real estate under conveyances from Samuel D. Risher and wife, dated the 14th of September and 26th November 1864. And the said J. G. Williams, M. M. Young, B. W. Green, A. D. Williams, William A. Alley, Martin M. Ripscomb, as trustee for Adeline T. Rips-comb, and the said- Martin M. Ripscomb and Adeline T. his wife, and the president, directors and company of the Rarmers Bank of Virginia, are made defendants to the bill. Afterwards, according to suggestions made in the answers of said Alley, and Ripscomb and wife, the said Gwathmey and Risher were also made defendants by an amended bill. After sundry answers had been filed, depositions taken, and other proceedings had in the cause, it, came on to be heard on the 20th of November 1867, when the court was of opinion that the president, directors and company of the Rarmers Bank of Virginia had no authority to enter into the transaction of the 15th of September 1863, between the defendant A. D. Williams and the said bank, disclosed in the deposition of the said A. D. Williams, whereby the latter obtained possession of the two protested notes in the bill mentioned, by paying into the said bank the nominal amount of the said notes, including interest and charges of protest, in the then Confederate currency; and that the plaintiff’s right to have the possession of the said two notes, and to require the deed of trust of the 24th of May 1859 to be enforced for their payment,' was not affected *or impaired bj' the said transaction; and the court therefore decreed that one of the commissioners of the court should enquire and report what is the description and value of the real estate embraced in the said deed of trust, not including that portion thereof which was released by the deed of release of the 28th of August 1860, and how and by whom, and in what proportions, the same is held, and the value of each portion; and in case sale of the same, or any portion thereof, shall be necessary to satisfy the debt of the plaintiff charged thereon, what portion thereof ought in equity to be first sold, and in what' order the respective portions thereof ought to be sold for that purpose. And the said commissioner was directed also to enquire and report what relief, if any, the defendants Martin M. Ripscomb, trustee, and his wife, and William A. Alley, respectively, would be entitled to have decreed to them against their vendors respectively, in case the portions of the real estate held by them respectively should be sold to pay the said debt due to the plaintiff charged thereon.
    Commissioner Pleasants made a report in pursuance of that decree; to which report the defendants Alley and Ripscomb and wife excepted—the said Alley excepting because the commissioner reported that he Alley had no recourse over against his vendor Gwathmey, and the said Alley and Ripscomb and wife excepting, because the commissioner reported no liability of the president, directors and company of the Rarmers Bank of Virginia who received the Confederate money and delivered possession of the notes to the trustee, A. D. Williams.
    On the 11th of March 1868, the cause was again heard on the papers formerly read and the report and exceptions; and it being suggested that the defendant Green had been adjudicated a bankrupt, the court, without at that time passing upon the said exceptions, but reserving *the questions raised by them for future consideration and decision, decreed that unless the defendants, or some of them or some one for them, should, within sixty dajTs from the date of the decree, pajr into the Planters National Bank of Richmond to the credit of the cause, the sum of $5,213 55 with interest on $3,672 02 part thereof, from the 27th day of Eebruary 1668 until paid (due on account of the said protested notes according to the said report) and file with the clerk of the court a certificate of the proper officer of such bank of such payment, then certain persons, who were appointed commissioners for the purpose, were directed, after advertising the time, place and terms of sale as therein mentioned, to sell at public auction on the premises so much of the real estate embraced in said deed of the 24th of May 1859 and not released by the said deed of the 28th of August 1860, as would be sufficient to defray the expenses of the sale and the costs of the plaintiffs in the suit; and also to raise the said principal sum and interest; the said property to be sold in the order mentioned in the said report of commissioner Pleas-ants, for cash as to one-third of the proceeds of sale, and upon credit as to the residue, of six, twelve and eighteen months in equal instalments, taking negotiable notes of the purchasers respectively, for the credit instalments, with interest added, &c. Prom this decree the defendants Wm. A. Alley, and Martin M. Lipscomb in his own right, and as trustee for Adeline T. Lipscomb his wife, applied for and obtained an appeal to this court. The proofs as to the payment of these notes by A. D. Williams, and the usuage of the bank, are stated in the opinion of the court.
    Howison and August for the appellants insisted:
    1st. That the bank was the agent of Rogers authorized *to receive the money upon the notes. That the bank would have had this authority if the notes had not been endorsed by Rogers, and the case is much stronger in favor of the authority with his endorsement upon them. Nor did the authority to receive payment of the notes cease when there was a failure to pay them, at their maturity; but it continued as long as they were left with the bank. Payment to the holder of negotiable paper is always a good payment. Story Agen. § 98, § 104. And the effect of the usuage of banks in such cases is to extend this authority. Id. § 106, § 202, §413.
    2d. That the bank having received payment in Confederate notes, which was the only currency at the time they fell due, and when they were paid, they were authorized to receive them. They referred to Russell v. Hankey, 6 T. R. 12; Warwick v. Noakes, Peake’s Ni. Pr. 68; Phillips v. Blake, 1 Metc. R. 156; Riedenour v. McClurkin, 6 Blackf. R. 411; Mills v. Bank United States, 11 Wheat. R. 431; Bank of Washington v. Triplett, 1 Peters’ U. S. R. 25; Whitmell v. Johnson, 17 Mass. R. 452; United States Bank v. Bank of Georgia, 10 Wheat. R. 333 ; Lowry v. Murray, 2 Porter’s R. 280; 2 Parsons on Notes and Bills, p. 209; Field v. Carr, 5 Bingh. 13, 15 Eng. C. L. 348; Smith v. Essex County Bank, 22 Barb. R. 667; Montgomery County Bank v. Albany City Bank, 3 Seld. R. 459.
    3d. That under the circumstances the appellants having paid their money and received their deeds without any knowledge of the appellee’s lien, and the bank having received the money from Williams, and Williams having received it from the appellants, the plaintiffs should have been required to proceed against the bank and Williams, and also against Gwathmey and Eisher, the vendors of the appellants, before proceeding for a sale of the land.
    *N. Howard and Roberts for the appellee.
    Bankable money was the same when these notes were deposited in bank for colllection as it was when they were executed in 1859, and that mone3r was specie and bank notes. A reference to the acts of the Confederate congress on the issue of treasury notes, will show that it was impossible that Confederate notes were the currenc3r when Rogers deposited his notes in the bank. At that time, therefore, there could be no usage of the banks to receive Confederate notes in payment of paper deposited for collection.
    Ón the 17th of April 1861 the act of secession was passed; and by the act of congress of July 13th, 1861, and the proclamation of President Lincoln of August 16th, founded thereon, the State of Virginia, with other States, were declared in insurrection ; but Kentuckj- was not included in the number, and from that time all intercourse between the citizens of the two States was forbid, and was illegal; Rogers, a citizen of Kentucky, was thenceforth forbid to have any intercourse with the people of Virginia, and it is to be inferred that his leaving the notes in the bank was in obedience to the law, and therefore no laches or negligence can be imputed to him in not withdrawing the notes.
    Then the only authority given by Rogers to the bank in relation to the notes was that given by the deposit of them for collection ; and there is nothing to show that he knew of the usage of the banks to take Confederate money in payment of notes so deposited. It would seem from all the cases that a party must have had knowledge of a usage, in order to bind him by it; though the length of time for which a usage has existed is sometimes held to be sufficient evidence of notice. In this case a usage could not have existed for more than two years ; not long enough certainly to imply notice to Rogers. There is no proof of actual notice, and Rogers living in Kentucky, outside of the Confederacy, *and in an enemy’s country, cannot be presumed to have hád notice of a usage which was peculiar to the Confederacy, and could not exist elsewhere.
    On the subject of usage, we refer to the Bank of Washington v. Triplett, 1 Peters’ U. S. R. 25; Adams v. Otterback, 15 How. U. S. R. 539, 559. It will be seen that a party is bound by a usage existing at the time he does the act. But here the attempt is to bind him by a usage not existing when the notes were deposited, and of which he had no knowledge at any time. The last case cited covers ours in all points as to usage, and. this case is even stronger than that; and there is no case where a usage has been held to affect a non-resident owner of a note, or where a note had been deposited before the usage had commenced.
    Although the notes were endorsed by Eogers, they were endorsed only for collection, and this fact is clearly shown by the circumstances, and was known by Williams when he paid them, as he proves by his own testimony.
    All the cases show that the payment in such cases must be in specie or bank notes: In this case the payment was in Confederate notes. Then when the authority was to receive payment in specie or bank notes, can the bank receive Confederate notes, notes not in existence at the time the authority was given-, and certainly not of the same character as bank notes. We know that no law suspending specie payments by banks can compel a creditor to take anything else than specie.in payment of his debt.
    Upon the extent of the authority of an agent to collect a debt we refer to Wilkinson v. Holloway, 7 Leigh 377; Smock v. Dade, 5 Rand. 639; Powell v. Chapman, 19 Eng. C. L. R. 499; Partridge v. Bank of England, 58 Eng. C. L. R. 396, 425; Sweeting v. Pearce, 97 Id. 449, 480, 486; S. C. 99 Id. 534 to 542. These cases refer to the contract of the endorser; as are all the cases *that have been cited. The usage as to the time of notice, &c., is different from the authority to collect money, authorizing the taking something different from money and of much less value. We refer to Sykes v. Giles, 5 Mees. & Welsb. R. 645; 5 Rob. Prac. 692; Marine Bank of Chicago v. Chandler, 27 Illin. R. 525, 548.
    It has been suggested that when the bank received the Confederate notes and credited the amount to Eogers, the bank was responsible to Eogers for the amount in specie, and therefore the debtor was discharged. But this is hardly correct. The bank receiving the payment in Confederate notes was not as able to pay as if the money had been paid in specie; and for this reason it is. held that a payment to an agent in anything'but money is not valid. Barker v. Greenwood, 2 Young & Col. R. 414, 419.
    As to the defence that these appellants were bona fide purchasers, A. D. Williams was the agent of all the purchasers in obtaining a release of the incumbrances; and they are bound bj notice to him: He says he knew of the deed of trust; and the purchasers took their deeds after being satisfied that the notes had been or would be paid off. The deed of trust showed the notes, and that Eogers lived in Kentucky. Williams does not seem to have made any enquiry as to the authority of the bank to receive Confederate money. He had no right to rely on an inferior officer or even the president of the bank; but should have applied 'to the trustee in the deed to know whether he would release it. This he did not do. In this state of facts the purchasers are bound by the knowledge of Williams. Le Neve v. Le Neve, Amb. R. 436, 440; Sheldon v. Cox, Id. 624, 626; Toulmin v. Steere, 3 Meriv. R. 209, 222; Harvey’s adm’r v. Steptoe’s adm’r & als., 17 Gratt. 289; Crump v. United States Mining Co., 7 Gratt. 352; Hobson v. Theluson, Law Rep. Queen’s Bench 645, 648-9, 651. *And this is not inconsistent with Evans v. Greenhow, 15 Gratt. 153; for it does not appear that the grantor had notice of the execution in that case.
    It is insisted on the other side that it was error to decree a sale of the land before the plaintiff had exhausted his remedies against the bank and against Williams, Gwathmey and Eisher. We have filed a bill to enforce the deed of trust for the payment of the debt. If there had been no conveyance of the land, and we had brought the suit to enforce the deed; there is no case which would authorize the decree for the sale of the land and a decree against Green for the balance. But if there could be such a decree against Green, it could not be against the other parties; and Green is a bankrupt. The bank too is insolvent, and has conveyed all its effects to a trustee, and they are now impounded in the bankrupt court, and as to Williams, according to a decision of this court, he was not our agent, and we cannot have a decree against him. The decree in this case, so far as it goes, conforms to the decree in the case of Henkle v. Allstadt, 4 Gratt. 284. And if this is a case for a decree between co-defendants, the decree appealed from is interlocutory, and such a decree may be made after the case goes back to the Circuit court. We refer to Mayo v. Tompkins, 6 Munf. 520, 528 ; Cocke v. Harrison, 3 Rand. 494, to show we are entitled to an immediate decree.
    Byons, for the appellants, in reply. The defence of alien enemy cannot be combined with another defence, and must be made specially. 1 Chitty’s PI. 479.
    I shall not discuss the question whether an agent to collect a debt is authorized to take barter or pay his own debt, though exceptions exist even in such cases. Here we say that Confederate notes were at the time the payment as made, treated as money. It is true, *the constitution of the United States does not authorize the making paper money a legal tender; but money may be money for purposes of business, though not a legal tender.
    It is a familiar principle of the law of agency, that if the principal can communicate with his agent and does not, then the agent is justified’ in his act, if he acts in good faith and with reasonable judgment. An agent to collect a debt is not to take a horse or a note. As illustrative of this whole subject, I refer the court to the case of Partridge v. The Bank of England, 58 Eng. C. L. R. 396.
    The question is narrowed down to the single enquiry, whether the agent in this case, was restricted to taking only gold or silver, or whether the debtor will be discharged if he pays his debt in the money of account; the money then constituting the currency1- of the country. The question is not here whether the agent is or is not liable to his principal, but whether the agent acting in good faith in receiving the money the debtor is not discharged.
    If the creditor chooses to demand specie and so instructs his agent, then the agent of course has no right to take anything else. But if, when the usual currency is not specie, the creditor deposits his note in the bank without instructions, and the debtor gives a check upon the bank for the amount, and receives his note, then is not the bank bound to pay the creditor in specie. If the creditor might demand specie from the bank for the amount of the note placed to his credit, then the debtor had the same right to demand specie for his check as the creditor had; and the bank having taken the check, must be considered as having been paid in specie, or whatever currency the agent had a right to receive.
    It is conceded in the cases cited in the argument, that if a party is informed of a usage, he is bound *where the agent acts in accordance with it. If the usage is to take bank notes in payment, can the agent be held liable for taking the bank notes, when the creditor sent the note for collection without instructions to the agent.
    The deed from Green to Williams conveyed a large amount of property, and provided that the trustee, after paying expenses, should pay oil all liens by deed of trust, judgments, &c., upon the property. This was the first trust to be executed. Williams undertook the trust, sold the property, and if he received enough to pay in gold this lien upon the property, he was bound to pay them, and a creditor is entitled to recover from Williams the amount of his debt, or pro rata, if the property did not sell for enough to pay all. Here the property covered by this lien sold for a sum in Confederate notes, which converted into gold, at the then existing rate, was enough to pay these notes. Williams was therefore bound to pay them, and the court should have decreed against him for the debt. It is a familiar doctrine of equity, that the court will bring all the parties before the court, and make such a decree as will do justice to all of them. 1 Story’s Eq. Jur. $ 27, 28, and for this purpose will marshal the assets; and on these principles the decree should have been first against Williams, and if the money could not be made out of him then against the land.
    It is said Rogers does not claim under the deed from Green to A. D. Williams. This, however, is not important. The party who received the money was before the court, and the court should have put the burden upon the proper party. The trust provided for the payment of all the debts, and a purchaser was therefore not bound to see to the application of the purchase money. 2 Sugd. Vend. 299, paragraph 9, And a party claiming under a prior deed, permitting the trustee under a second deed to sell the property and *receive the money, and stands by and says nothing, loses his right.
    I come now to consider the authority of the bank to receive payment of these notes, and on this question I refer to 2 Parsons on Notes and Bills 208, 209, note a; 5 Rob. Pr. 888, 889, 890. These authorities establish the proposition, that when a party deposits a note by a general endorsement in a bank for collection, the debtor has a right to pay it in the notes of the bank or by a check upon it. And I have found no case which holds that the bank is not authorized to receive payment after the day when the note falls due. It is the usual practice, that if a note is paid before the opening of the bank on the day after it is due, the credit of the debtor is not affected by1 the failure to pay it on the day it fell due.
    In this case there was a blank endorsement by the payee of the notes, and a delivery1 of them to the bank. Thus holding them, the bank had a qualified property in them, might have passed them, might have sued the maker upon them, and he could not have defeated the action, on the ground that they did not belong to the bank, and the bank being the holder, the debtor as certainly entitled to pay to the bank. Then can there be any question that the bank, being thus in possession of the notes, might receive payment for the notes? Suppose the day after a note falls due the maker comes and proposes to pay it in specie, but the bank declines to receive it because the note is over due, and then the maker fails, would not the bank be liable for not accepting it?
    But it is said the bank had no right to receive Confederate notes in payment of the notes. There can be no doubt that at the time these notes were paid Confederate notes constituted the only money in circulation, and that it as generally received in payment of debts at that time. The history of currency shows *that paper has always been regarded as money, and that it possesses many advantages. Smith’s Wealth of Nations, book 1, ch. 4; book 2, p. 126, 522; Encyclopedia Britannica, title Money; Encyclopedia Americana, p. 208. Money is that thing which, in the community in which it circulates, is treated as money. Money of account, money wdiich is received in payment, &c., &c., is money. Then, when these notes were taken up, they were paid in money; and therefore it was a valid discharge of the debtor, whatever may be the case as to the agent. Commercial Bank of Pa. v. Union Bank of New York, 3 Kernan’s R. 203. And the case of Sweeting v. Pearce, 99 Eng. C. L. R. 534, cited on the other side, sustains this view. In Partridge v. The Bank of England, 58 Eng. C. L. R. 396, the agent did not receive money, nor was the payment made in the usual mode, and he passed off the noté to pay a debt of his own, and the broker knew it. Parker v. Greenwood, 2 Young & Col. R. 414; Marine Bank of Chicago v. Chandler, 27 Illin. R. 525, 548; Pratt v. Foote, 5 Seld. R. 463. Then upon the facts this case comes clearly within the principle of these cases.
    But it is said Williams was the agent of the purchasers. How was he their agent? He was the agent of the creditor and the debtor, but not of the purchaser. The purchaser was not bound to see to the application of the purchase money, and Williams was then in no sense his agent.
    
      
      Co!Iection by Agent in Depreciated Currency.—See Ewart v. Saunders, 25 Gratt. 207; Pilson v. Bushong, 29 Gratt. 237.
    
    
      
      (Proceedings against Purchasers of Land, Subject to Lien of Judgment, Deed of Trust, etc.—While there is one decision to the contrary (Beverley v. Brooke. 2 Leigh 425), it seems now well settled in Virginia that when land, subject to a lien, is bought by purchasers at different times, the purchasers shall be subjected in equity in the inverse order of their purchases. If any of the land remains in the hands of the debtor, that, of course, should be subjected first. See Brengle v. Richardson, 78 Va. 406; McClaskey v. O’Brien, 16 W. Va. 791; Renick v. Ludington, 20 W. Va. 511; Conrad v. Harrison. 3 Leigh 532; Rodgers v. McCluer, 4 Gratt. 81; Henkle v. Allstadt, 4 Gratt. 284. See McClung v. Beirne, 10 Leigh 402, and Jones v. Phelan, 20 Gratt. 241, where the principal decisions are discussed. See also, 2 Min. Inst. (4th Ed.) 306, and cases there collected.
    
    
      
      Decree between Co-Defendants.—As to when there is a proper case for a decree between co-defendants, see foot-note to Ould v. Myers, 23 Gratt. 383.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case he proceeded as follows:

The errors in the decree assigned in the petition for the appeal are, 1st. Because the bank was the agent of the plaintiff, authorized by law to receive payment of the said notes, and if the plaintiff has any remedy, it is against the bank. And 2dly. If the petitioners are liable, it can only be after the remedy against the bank, *and then, if necessary, that against Gwathmey and Fisher are exhausted. In the argument it was also contended that the remedy against the trustee A. D. Williams must be exhausted before the appellants or the land held by them can be made liable. We will now proce'ed to consider these assignments of error.

1st, That the bank was the agent of the plaintiff, authorized by law to receive payment of the said notes, and if the plaintiff has any remedy it is against the bank.

It was proved in the cause by Robert A. Payne, that on.the 14th of September 1863, he, as receiving teller of the bank, received the amount of the two protested notes aforesaid, in Confederate currency, from A. D. Williams, trustee, and placed the amount to the credit of B. E. Rogers on the books of the bank; that it was the usage of the Farmers Bank of Virginia in which the witness was employed, and he believes of all the banks, that if notes deposited in bank for collection were not paid at maturity, they were noted or protested and handed over to the note clerk, and there they remained until the maker or endorser called and paid them, or the holder withdrew them. If the holder did not withdraw them and gave no instructions to the contrary, it was the usage of the banks to receive payment of such notes at any time when payment was offered. This usage was long and well established and as generally known to customers of the banks and persons having business with them. Confederate currency, so far as the knowledge of the witness extended, was universally received by the banks in Richmond during the war, in payment of notes held by said banks, either for their own benefit or for collection; and he thinks this usage of the banks was so general and so widely known, as to be familiar with their customers and those having business with or through them. He did not know that the notes were well secured by *deed of trust on real estate in Sydney ample to secure their payment in good money.

A bank at which a negotiable note is payable, and at which it is deposited for collection, is of course the ag'ent of the holder or depositor to receive the money' if paid at such bank at the maturity of the note, and, though not then paid, has no doubt implied authority to receive the money at any time thereafter and while the note remains at the bank. It very often happens that such a note is taken up at bank shortly after the protest thereof, and with a view to save the credit of the debtor; and it therefore very often happens that a protested note is suffered by the owner to remain at bank some time after protest, with a hope that it maj' be thus taken up. It does not often happen that a protested note is left very long at bank, especially when the debtor can be made to pay it, or the creditor has a deed of trust or other security, which he can enforce for its payment. There is then no motive for leaving the note at bank, but a strong one for taking it away. Still, however long, and with whatever motive, a protested note may be permitted by the owner to remain at bank, it may, as a general rule, be safely paid to the bank by the debtor, provided he has no notice that the bank in fact has no authority to receive the money. In regard to notes deposited at a bank for collection during the war, when Confederate money was the only currency, they might, properly, have been paid in such money, at least without notice that other money was demanded. To have made such a deposit without such a notice, could have been for no other purpose and with no other expectation than to get Confederate money. In regard to notes payable at bank before the war, deposited for collection, and protested for non-payment, but neglected to be withdrawn from bank by the owner, residing in this State, it might be very questionable whether, after the lapse of two or three years, *the bank would have authority to receive payment of such notes in a currency which came into existence after the protest of the note, and which, at the time of such payment, had depreciated in value as 12 to 1 compared with specie, in which payment might legally have been demanded; or whether the debtor, having notice of the facts, could make a valid payment of the note in such a currency and under such circumstances. It might not be reasonable to infer an authority to receive payment in such a currency under such circumstances, from the mere omission to withdraw the notes from the bank.

But however that may be, the case we have under consideration is a very different case from any that has been stated. Here B. R. Rogers, the payee and the owner of the notes in question, was a non-resident of Virginia and a resident of the State of Kentucky when the notes were drawn, and when the deed of trust was executed for their security, and he has ever since resided in the State of Kentucky. The fact that he resided there is expressly stated in the deed of trust, which was duly recorded, and was no doubt notorious to all the parties concerned. The notes were deposited by him for collection at bank long before the war; one of them became due, and was protested in November 1860, nearly six months before the war, and the other became due, and was protested in May 1861, just after the war commenced; at that time Confederate money had not become the currency of this country. The notes could not well, if possibly, have been withdrawn from the bank by B. R. Rogers after the protest of the last note and before the end of the war. Kentucky, where he lived, was one of the United States, and he was separated from Richmond “by a line of bayonets.” There were certainly instances, and perhaps many of them, in which that line was crossed; and the record shows that two of his brothers and *several of his nephews, residing in the same county with him, visited Richmond during the war; though it does not appear that he had any knowledge of the visit. At all events, there was so much difficulty and so much danger in the communication between the two places, which was expressly prohibited bjr the law of the government under which he lived, that he cannot be held accountable for not having withdrawn these notes from bank after the war commenced ; nor can any inference be fairly drawn from that fact, that he “authorized the bank to receive, and the debtor to pay, the amount of these protested notes in September 1863, in a currency depreciated to the degree of 12 to 1, as compared with specie, when the notes were payable in specie, and were secured by a deed of trust on real estate, exceeding in value the amount of the notes. What motive could B. R. Rogers have been supposed to have for making such a sacrifice? A. D. Williams knew when he took up the notes that they did not belong to the bank, but belonged to B. R. Rogers, a non-resident of the State and of the Confederate States, by whom they had been deposited before the war only for collection. He knew they were perfectly secured by a deed of trust on real estate. His only object in taking up the notes was to obtain a release of that deed of trust. It was a means to an end. The equity of redemption, in the property conveyed by that deed, was included in the subsequent deed of trust to him under which he had made a 'Sale of the very property bound by the prior deed, and he wished to free the property from that incumbrance, so as to be able to make a good title to the purchasers from him. He made his sale on the 17th of April 1863, just five months before he took up the notes, when the deed of trust for the benefit of Rogers was on record and in full force. Instead of going to the bank and taking up the notes by the payment of the amount in Confederate money, he ought to have gone to the trustees *in the said deed of trust, and learned of them the terms on which he could obtain a release. He did go to the trustees, but after he had taken up the notes, and then he carried with him a deed already drawn for execution by them, which, of course, they refused to execute without authority from the creditor.

We therefore concur in the opinion of the Circuit court, that the bank had no authority to receive payment of the notes in depreciated Confederate currency; that A. D. Williams had no right to make such a payment ; that the said payment was not a valid one; that the notes still belong to B. R. Rogers, notwithstanding such payment, and that the deed of trust for his benefit is still a subsisting security, in full force and effect. And this disposes of the first assignment of error, except the latter branch of it; “that” if the plaintiff has any remedy it is against the bank. Certainly the bank is liable to somebody for the value of the Confederate money which it received, and B. R. Rogers might, if he chose, elect to enforce that liability, though not perhaps without giving up his right to the notes, and under the deed of trust. The ground he takes is, that the bank had no authority to receive the payment, and that it was a void act. By seeking to enforce it, he might make it a valid act. At all events, he is not bound to proceed against the bank, whatever may be its liability. The unlawful act of the bank and of A. D. Williams cannot deprive B. R. Rogers of his plain and simple remedy under his deed of trust, and involve him in a troublesome and expensive pursuit of a bankrupt corporation.

2dly. It is insisted by the appellants that if the property held by them as aforesaid be liable to satisfy the demand of Rogers, it can only be after the remedies therefor against the bank, A. D. Williams, Gwathmey and Risher, respectively, are exhausted.

We have already disposed of the supposed remedy Ragainst the bank, and shown that it can interpose no obstruction to the right of Rogers to proceed directly against the property subject to his deed of trust. And the other supposed remedies, to wit, against A. I). Williams, Gwathmey and Risher, may be disposed of in the same way. Rogers came into court, claiming that his debt was still due and his deed of trust for its security in full force, notwithstanding what had occurred as aforesaid, and asking that the trusts of the deed might be executed for his benefit. We think that his claim is well founded, and his right to what he asks for is the legitimate consequence. If the protested notes had not been taken up by A. D. Williams as aforesaid, Rogers would have had no difficulty in having the trusts of his deed executed, without coming into court for that purpose. But an obstacle was thrown in his way bjr the intromission of A. D. Williams, and he had to come into court to remove that obstacle. Having removed it, he stands at least on as high ground as if it had never been thrown in his way. He did not ask for a personal decree against his debtor Green, or any body else, but only for the enforcement of the deed of trust by a sale of the property thereby conveyed, or so much of it as might be necessary for the payment of the debt. It was proper for him to make the terre tenants of the property, or portions wf it, claiming title thereto under alienations subsequent to the said deed of trust, defendants to his suit, as they had an interest in the subject in controversy ; and it was proper for the court, in decreeing a sale of the property to satisfy the debt, to direct it to be sold in such order as would best consist with the rights of all the parties and the justice of the case. The trust creditor had a right to have the trust property sold for the payment of the trust debt, notwithstanding the subsequent alienations ; but he had not a right to have it sold in any certain order, not affecting the security *of the debt. The order of selling it, provided it be without prejudice to the rights of the trust creditor, is therefore subject to the equitable control of the court. But the plaintiff cannot be required to take a personal decree against any of the defendants. He cannot be delayed or embarrassed by the prosecution of any of their rights 'or remedies ínter se. He has put no such matters in issue by his bill. If they are proper subjects for adjudication in this cause, it is by a decree between the co-defendants, and not by a decree in favor of the plaintiff against any of them. There is nothing in the decrees which have been rendered by the court, and which are only interlocutory, that can prevent the Circuit court from rendering any decrees between the co-defendants which it may be proper to render in the cause; and indeed the said court in the decree appealed from, seems to have contemplated a future decree between the co-defendants by expressly reserving the questions raised by the exceptions to the commissioner’s report, for future consideration and decision.

We therefore think that the decree appealed from is correct and ought to be affirmed, at least upon the merits. We are not satisfied, however, that the order prescribed by the report of the commissioner and the decree of the court for the sale of the lots held-by William A, Alley, S. D. Risher and M. M. Lipscomb, trustee for his wife Adeline T. Lipscomb, respectively, is correct, although there is no exception to the report in that respect. That order is, that the lots held by said Alley shall be sold before the lots respectively held by said S. D. Risher and M. M. Lipscomb, trustee; no doubt upon the ground that the lots held by Alley were conveyed to him, after the lots held by S. D. Risher and Lipscomb, trustee, respectively, were conveyed to B. W. Green, by A. D. Williams, trustee, under the deed of the 21st of | Rebruary 1861; and that the inverse order *of the subsequent alienations of incumbered property is the true order in which the property ought to be sold to satisfy the incumbrance. The principle is right, as has often been held by this court. Conrad v. Harrison, &c., 3 Leigh 532; McClung v. Beirne, 10 Id. 394; Rodgers v. McCluer’s adm’r, &c., 4 Gratt. 81; and Henkle’s ex’x, &c. v. Allstadt, &c., Id. 284; by which cases the prior case of Beverley v. Brooke, 2 Leigh 425 has been overruled. But the application of the principle to this case seems not to be correct. It appears that the lots held by Alley and those held by S. D. Risher and Lipscomb, trustee, respectively; were sold at the same time, or on the same day, by A. D. Williams, trustee, that is, on the 17th day of April 1863; and that the said holders claim the said lots respectively, directly or indirectly, under purchasers who purchased them at that sale and on that day. If this be so, then it would seem that these holders stand on an equality, and the lots held by them should bear the burden of Roger’s incumbrance ratably, that is, in proportion to the prices at which they were respectively sold at the sale made by A. D. Williams, as aforesaid. That these lots were conveyed by A. D. Williams to the purchasers at his sale, or their assigns, at different times, makes no difference. The rule of equality was fixed by the sale, and was not affected by the order of the conveyances, subsequently made by the vendor. 4 Gratt. 81, supra. We think that so much of the decree as directs a sale of the said lots held by said Alley, Risher and Lipscomb, trustee as aforesaid, in the order mentioned in the report of commissioner Pleasants, ought to be reversed, and the said report ought to be recommitted to the commissioner, with instructions to make further enquiry, and report as to the order in which the said lots ought to be sold, if necessary, according to the principles set forth in the foregoing opinion. In all other respects we think the decree *ought to be affirmed, and with costs to the appellee Rogers, as the party substantially prevailing.

The decree was as follows:

The court is of opinion, for reasons stated in writing, and filed with the record, that the president, directors and company of the Rarmers Bank of Virginia had no au,thority to receive payment of the two protested negotiable notes in the proceedings mentioned in depreciated Confederate currency ; that the payment made of said notes in such currency by A. D. Williams in September 1863, as stated in his deposition, was a void payment; that the said notes are still due and unpaid, and belong to the appellee, B. R. Rogers; that the deed of trust of the 24th day of May 1859, from Benjamin W. Green to John G. Williams and Mortimer M. Young, is still a subsisting security, in full force and effect, for the payment of the said notes, except as to that portion of the property conveyed by said deed of trust, which was released b3r the deed of the 28th of August 1860, in the proceedings mentioned; that the said B. F. Rogers is entitled to have the said deed of trust enforced for the payment of said notes, with all interest and costs of protest due thereo'n, by a sale, if necessary, of the property conveyed by the said deed of trust, or so much thereof as may be sufficient for the purpose, except as aforesaid; that he is entitled to a decree for such a sale without being first required to have any recourse against the president, directors and company of the Farmers Bank of Virginia, B. W. Green, A. D. Williams, S. D. Fisher, G. N. Gwathmey, or any other person; that if these parties, or any of them, can be made liable in this suit, as to which this court expresses no opinion, it must be by a decree between co-defendants, which decree, if proper, it will be competent for the Circuit court to make hereafter, as the decrees already made are interlocutory only, and *that there is no error in the said decrees already made, at least upon the merits; but the court is of opinion that there is error in so much of the decree of the 11th day of March 1868 as prescribes the order of priority, in which the lots of land held by the purchasers respectively are to be sold for the satisfaction of the said debt due to B. F. Rogers. It appears that these lots were sold on the same day, to wit, the 17th day of April 1863,.by A. D. Williams, trustee, though his conveyances of them were made afterwards and at different dates; and that the said holders respectively claim the said lots, directly or indirectly, under purchasers who bought them at that sale and on that day. The court is therefore of opinion, that if it be not necessary to sell the whole of the land conveyed' by the said deed of trust of the 24th day of May 18S9, not released by the said deed of the 28th of August 1860, for the purpose of satisfying the said deed of trust, then the balance of the said debt due to B. F. Rogers, which may remain unsatisfied after applying to its payment the nett proceeds of the sale of the two lots still held by the said A. D. Williams, trustee, and directed to be first sold, ought to be raised ratably out of the lots now held by the said purchasers respectively, to wit: William A. Alley, Martin M. Bipscomb, trustee for his wife Adeline T. Bipscomb and S. D. Fisher, in proportion to the amounts of the purchase money for which those lots were respectively sold at the sale made by the said A. D. Williams, trustee, on the 17th day of April 1863 as aforesaid.

Therefore it is decreed and ordered, that so much of the said decree of the 11th day of March 1868, as is above declared to be erroneous, be reversed and annulled, and the residue thereof, and the decree of the 20th day of November 1867 affirmed; and that the appellee, B. F. Rogers, as the party substantially prevailing, do recover of the appellants his costs by him about his ^defence in this behalf expended. And it is ordered that the cause be remanded to the said Circuit court for further proceedings to be had therein in conformity with the foregoing opinion; which is ordered to be certified to the said Circuit court.

Decree reversed in part, but confirmed on the merits, with costs to the appellees.  