
    *Michaux’s Adm’r v. Brown & als.
    January Term, 1854,
    Richmond.
    1. Judgments — Equity of Redemption — Subject to Lien of — Subsequent Purchaser of —Priority.—A judgment i s a lien upon an equity of red emplion in land, and will he preferred to a subsequent purchaser of the equity of redemption not having the legal title. And the lien of the judgment extends to the whole equity of redemption.
    2. Same — Injunction against — Dissolution—Effect upon Lien. — Though the judgment was enjoined at the time of the purchase, yet upon the dissolution of the injunction, the lien relates hack to the date of the judgment, and so has priority over the equity of the purchaser.
    3. Same — Same -Same — Damages Become Partof Judgment. — The damages on the dissolution of an injunction to a judgment become, as to the party obtaining it, a part of the judgment; and are embraced in the lien of the judgment upon the equity of redemption.
    4. Bonds — Judgment for Penalty — To What Lien Extends — Case at Bar. — A judgment being rendered for the penalty oí a bond, to be discharged by the payment of the principal sum due and interest; and the payment of the money having been delayed by an injunction until the principal sum due and the interest exceed the penalty, the lien of the judgment only extends to the penalty, the damages upon the dissolution of the injunction, and the costs at law, without continuing interest.
    5.Equity Practice — Purchase of Land from Judgment Debtors — Bill Asking Relief against Judgment-Case at Bar. — Purchasers of land from a judgment debtor file a bill, making the judgment creditor and other purchasers of land from the debtor, parties, assailing the judgment, setting out the different purchases, and insisting thatif the judgment is valid the plaintiffs are entitled to have it paid ratably by the purchasers ; and they ask for this and for general relief. The creditor answers, maintaining the validity of his judgment and claiming to have his debt paid out of the lands held by his debtor at the date of the judgment. The purchasers who are defendants, make no objection to the jurisdiction, but claim exemption from liability to the judgment; and one of them insists that a fund in court arising from the sale of lands conveyed in trust for his benefit shall be paid to him. Hplu :
    1. Same — Same—Same.—It is a proper case for the jurisdiction of a court of equity, which should settle the rights and liabilities of the parties and decree between them.
    2. Same — Same—Same—Case at Bar. — Though the plaintiffs ask for a ratable contribution by the parties, yet as they set out all the facts and ask for general relief, and it appears that the fund in court is primarily liable to satisfy the judgment, that fund will be so applied to the relief of the plaintiffs.
    *On the 18th of June 1819, Benjamin Mosby, surviving executor of L. H. Mosby deceased, who sued for the use of Joseph Michaux, the intestate of the appellant, recovered a judgment in the County court of Powhatan against Wade Mosby and Littleberry H. Mosby his appearance bail, for eight hundred pounds, to be discharged by the payment of four hundred pounds, with interest at five per cent, from the 21st of October 1796 until paid. A fi. fa. issued on the judgment on the 24th of June 1819, which was levied, and a delivery bond executed. On the 19th of August 1819 proceedings were stayed by an injunction awarded to said Wade Mosby. On the 26th of July 1826 the injunction was dissolved with damages, for a failure to give additional security. On the 28th of September 1826 a fi. fa. issued for the debt, and damages sustained in consequence of the injunction amounting to five hundred and fifty-five pounds nine shillings and ten pence, and was returned no effects: And on the 30th of June 1828 two writs of elegit were issued on the judgment for the same amount as the last execution, and the costs, one of which was directed to the sheriff of Powhatan and was returned enjoined by the Superior court of chancery; the other directed to the sheriff of Henrico, was delivered to the appellant’s intestate, and has never been returned. After these executions were issued'a bill of injunction was filed by a portion of the appellees, averring, amongst other things, that they were respectively purchasers of various tracts of land in Powhatan county after the judgment, some from Wade Mosby the principal debtor, others for Ivittleberry H. Mosby his appearance bail, which they had purchased pending the injunction. That Wade Mosby had also executed three deeds of trust conveying his landed estate in Henrico county, called Old Curies, to secure the creditors therein named; that a sale had been made *under the last deed of trust, with the consent of all the creditors interested in the other deeds of trust; that William Allen was the purchaser at the sale, and the proceeds, after satisfying a debt having priority, was equally liable to the lien of the judgment with the lands in Powhatan which they held, if the judgment was under the circumstances, a lien on said lands. And after setting out the reasons upon which they relied to show there was no lien on any of the land, for the judgment or any part of the money claimed by the execution, they insisted that if there was a lien for anything, that all the lands should be made to bear an equal share; and that the proceeds of the sale of Curies, which still remained due from William Allen, who had not paid it or received a conveyance, should be subjected to a ratable proportion. The bill made the appellant’s intestate the plaintiff in the suit at law, the debtors, the creditors secured by the deeds of trust, the trustees and the purchaser at the sale, defendants.
    The appellant’s intestate answered, insisting at great length upon the justice of his judgment, a matter now no longer in controversy, asserting the validity of his lien on all the legal and equitable estates of the debtors, claiming priority over the purchasers of the lands in Powhatan, and over the incumbrancers in the deeds of trust to the surplus of the purchase money due from the purchaser of Curies, and contending that so much of such surplus in the hands of Allen the purchaser, as would be necessary to discharge his debt should be so applied; expressing his willingness to receive it, and praying that it should be decreed to him. The defendant Allen answered, setting forth the different deeds of trust on Curies, his purchase, the payment of the debts secured by two of the deeds, and showing the balance in his hands, which he was ready to pay to either of the parties entitled, *or into court; and submitting the question whether the judgment was a lien upon the whole or any part of the fund, to the consideration of the court, he contended that the lien for the ten per cent, damages awarded upon the dissolution! of the injunction, dated only from the time the injunction was dissolved.
    The conveyances from Wade and Tittle-berry H. Mosby to the plaintiffs in the bill of injunction, do not appear in the record. The bill avers that' Tittleberry H. Mosby conveyed a tract of land in Powhatan countj to Daniel Brown, one of the plaintiffs, by! deed dated the. 31st of August 1821, recorded | the 28th of January 1822, and another tract to John W. N?.sh trustee, by deed of trust recorded the 22d May 1826, under which a sale was made, and Thomas Meaux another of the plaintiffs, became the purchaser. That Wade Mosby the principal debtor, by two several deeds of trust recorded the first on the 30th January 1821, and the second recorded the 19th February 1824, conveyed a tract of land called Tethe to P. N. Nicholas and William Nekervis, to secure the Farmers Bank, under which Mary G. Morrison became a purchaser of part of the tract conveyed, who is also a plaintiff; and that Benjamin Palmore another of the plaintiffs, became a purchaser of the residue of the tract called Tethe under a deed of trust from Wade Mosby to William W. Mosby, recorded on the 9th of May 1826. The tract in Henrico appears from the exhibits filed, to have been encumbered by four several deeds of trust executed by Wade Mosby, the 1st dated the 4th of May 1814, to Adams and Miller to secure the purchase money due to his vendor; the 2d on the 13th of April 1821 to D. Call, to secure a debt due to John Buchanan; the 3d on the 16th of September 1824, to Joseph W. Tate, to secure a debt due to Boutdin, and to indemnify William Trueheart and others his securities for the payment thereof; the 4th *on the 5th of May 1826, to William W. Mosby and others trustees, to secure and indemnify a number of creditors and securities.
    By an agreement between the said Wade Mosby and. the trustees and beneficial parties, William W. Mosby one of the trustees in the last deed, was empowered to sell and to apply the proceeds arising from the sale to the various deeds of trust in the order of their dates successively. The land was sold, Allen became the purchaser, and on the 28th of Jutj- 1828, a conveyance was made to him by Wade Mosby, the said William W. Mosby and several of the trustees and beneficiaries secured by the deeds of trust. On the 6th of September 1828 the trustees in the deed to secure Buchanan’s debt and his personal representatives, in consideration of the payment of that debt, united in a release of that deed.
    It would thus appear from the averments of the bill and the exhibits filed with the answers, that all the conveyances made by Wade Mosby the principal debtor, and Lit-tleberry H. Mosby his appearance bail, whether made absolutely or in trust, (with one exception, the deed of trust on Curies, dated the 4th of May 1814, to secure the purchase money), were subsequent to the judgment of the 18th of June 1819; and all except the conveyance to Allen were prior to the dissolution of the injunction on the 20th of July 1826.
    In this state of the case the cause came on for hearing on the 23d of June 1832, when an interlocutory decree was pronounced by the consent of the plaintiffs in the court below and the appellant’s intestate, directing the representative of Allen the purchaser, who had died after filing his answer, to pay into court the sum of four thousand two hundred and eighteen dollars and seventeen and a quarter cents, the balance due on his purchase, with interest, which payment was to be taken in full satisfaction of all claims and ''demands which the plaintiffs in the chancery court and the appellant’s intestate had or could ever have against Allen’s estate, for or on account of any matter alleged in this cause by these parties respectively. And on motion of the appellant’s intestate, it was further ordered that upon the payment of said money into bank, the sum of eight hundred pounds should be paid over to him, which sum at least it was declared the appellant’s intestate was entitled to receive out of the money due from the estate of Allen. The residue of the money was held by the court subject to its future order. The eight hundred pounds so directed to be paid to the appellant’s intestate was the principal of the bond upon which the original judgment at law was rendered, and satisfied said judgment except as to the costs at law and the damages included in the execution on the dissolution of the injunction. The residue of the money being deposited was loaned out.
    On the 21st of July 1840, by consent of the plaintiffs in the suit and the representatives of William Trueheart deceased, they were admitted parties defendant; they having previously filed a petition to be made such defendants. An amended bill was filed making them defendants formally; and on the lath of June 1842 they filed their answer, setting forth that their testator was security in the bond for four thousand dollars, executed to Bouldin by Wade Mosby, secured by the deed of trust of the 16th of September 1824, to Joseph W. Tate, on the Curies property. That their testator had paid the debt, of which payment they filed the evidence. They insist that they were not bound by the interlocutory decree of the 23d of June 1832, as neither they or their testator were parties. They deny that the judgment was any lien on the equitable interest of Wade Mosby covered by the deed for the indemnity of their testator, which could be asserted against them; that the debtors had other lands then *held by the plaintiffs which should be first applied to the judgment. That if liable at all. it was only for a ratable portion with the lands held by the plaintiffs; and that there was no lien for the damages which accrued on the dissolution of the injunction.
    On the 30th of March 1846 the cause was again heard, and an interlocutory decree was pronounced, by which the court, being of opinion that the fund under its control arising from the sale of Curies ought not to be subjected to the claim asserted in this suit by the appellant, but should be applied in conformity with the provisions of the deed of trust of the 16th of September 1824, to reimburse the estate of said Trueheart for the amount paid in discharge of the bond to Bouldin S.s surety for Wade Mosby, gave a decree that the money should be called in and paid over to Trueheart’s executors in part satisfaction of the amount due to their testator; and without expressing any opinion as to the liability of the appellant to refund the eight hundred pounds received by his intestate under the decree of the 23d of June 1832, on the motion of Trueheart’s representatives, gave them leave to file a cross bill in the cause. From this decree the appellant has obtained the present appeal.
    Brooke, Irving and Steger, for the appellant.
    Stanard and Lyons, for the appellees,
    
      
       Judgments — Equity of Redemption -Subject to. — The equity of redemption in land conveyed in trust to secure debts is subject tothelienof judgments subsequently obtained. Hale v. Horne, 21 Gratt. 112, citing the principal case at page 122.
    
    
      
      lnjunctions — Dissolution.—In Bloss v. Hull. 27 W. Va. 510, it is said: "Some obj ections are also made by the appellant to the form of the decrees dissolving the injunctions awarded on his original and amended bills. I do not regard it important to notice these objections. They are not sustained by an inspection of the decrees themselves, but moreover, if there had been any irregularities in them, they could not operate to the prejudice of the appellant, if the final decree dismissing the plaintiff’s bill was right, as we have seen it was. The said decrees must be construed with reference to the final decree, and so construed, they do not prejudice the appellant. Clay tor v. Anthony, 15 Gratt. 518; Bentley v. Harris, 2 2d. 857; Jfichaux v. Brown, 10 Id. 612.”
      
      See monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
    
      
      .Bonds — Judgment for Penalty — To What Lien Extends. — If the judgment does not carry interest on its face, it can only be recovered by action or suit upon the judgment; it is not a partof the judgment and of course cannot be recovered by execution thereon, nor does the lien of this judgment extend to it. Tazewell v. Saunders, 18 Gratt. 368, citing Mercer v. Beale, d Leigh 189; Jfichaux v. Brown, l(> Gratt. 612; Mower v. Kip, 6 Paige’s K. 88.
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   ALLEN, J.,

after stating the case, proceeded :

The first question presented by these proceedings is whether the lien of the judgment, supposing nothing has occurred to affect its validity, would entitle the judgment creditor to charge the fund under the control of the court. The appellees the representatives of Trueheart, do not occupy the position of bona fide purchasers of the equitable estate of the debtor who have after-wards acquired the legal title. Their testator *and the creditors, w’hose debt Trueheart paid, were mere in-cumbrancers of the equity of redemption held by Wade Mosby when he executed the deed of trust of the 16th of September 1824. Allen the purchaser has acquired the legal title, and having discharged the previous incumbrances, the unpaid purchase money in his hands, represents and _stands in the place of the equity of redemption remaining in Wade Mosby, and charged by his in-cumbrance of the 16th September 1824. The judgment was prior to that incumbrance, and as was held in Coutts v. Walker, 2 Leigh 268; Haleys v. Williams, 1 Leigh 140; and Buchanan v. Clarke, supra 164, although this equity of redemption could not be taken in execution at law, it was upon the general principles of a court of equity, bound in equity, as it would have been bound at law, if it had been a legal estate. And amongst incumbrancers, having nothing but equities, and none the legal title, their equities being equal, they are entitled to satisfaction according to the priorities of their incumbrances in point of time : and in equity the judgment is a lien on the whole of the debtor’s equitable estate, and the whole fund and not a moiety, must be applied to the satisfaction of the prior judgment before the subsequent incumbrance can be let in.

The judgment being a lien and charging the whole of the equitable estate, has any thing occurred to displace it? It constituted a lien at the time of its rendition. The creditor then had the capacity to take out an elegit, and that right was never lost or even suspended through any act or omission of his own. Even if as was argued, there had been any necessity for a scire facias to revive the judgment the lien would have continued so long as the capacity to revive existed, and would have related to the date of the judgment. Taylor v. Spindle, 2 Gratt. 44. But there was no necessity to revive. The judgment was tendered on the 18th of June 1819, and on the 24th of June 1819 there was an execution and return. The injunction was dissolved on the 20th of July 1826, and on the 28th of September 1826 another execution issued. Upon such dissolution the party was remitted to the lien of his original judgment. Whilst the creditor could get, or as in this case had, the capacity to issue an elegit, the lien of the judgment having once attached, continued to operate, notwithstanding any supervening suspension interposed by the injunction. Taylor v. Spindle, ubi supra.

It is furthermore insisted, that although the lien of the judgment did once attach and has not been lost, that lien did not extend to the damages on the dissolution of the injunction ; that they formed no part of the judgment, and were only a consequence of the dissolution of the injunction ; and that prior to that time alt these conveyances and incumbrances were executed and recorded. It seems to me there can be no distinction in principle between damages upon affirmance in case of appeals and damages to be paid on the dissolution of an injunction. In respect to the first, the question has been settled by the case of McClung v. Beine, 10 Leigh 394. The provision in regard to damages on the dissolution of an injunction is contained in 1 Rev. Code of 1819, p. 209, § 61, following almost in juxtaposition the 59th section of the same act concerning damages awarded on the affirmance of a decree. That section provides that upon an affirmance of a decree the court shall award damages, &c. The act in regard to writs of error and supersedeas to judgments at law, 1 Rev. Code, p. 240, § 61, provides that on an affirmance the damages shall be ten per centum, &c. ; and the act in relation to injunctions provides that where the injunction shall be dissolved damages at the rate of ten per centum shall be paid to the party. It will,be seen that in *the case of appeals from decrees, the law provides the court shall award damages, &c. ; on writs of error to judgments the damages shall be at the rate of ten per centum, &c. ; and on the dissolution of an injunction damages at the rate of ten per centum shall be paid to the party, &c. In practice damages are always awarded in the decree or judgment of affirmance; incase of injunctions dissolved no entry is made awarding them; they are the legal consequence of the dissolution of the injunction unless the order dissolving directs otherwise. But the slight verbal variations in the sections referred to do not change or affect the principle; they were all in pari materia, and it is manifest the legislature intended to place the damages whether awarded on an affirmance of an appeal or to be paid on the dissolution of an injunction, on the same ground. The judgment of affirmance is to be certified to the court below; the order of dissolution to the clerk of the court wherein the judgment enjoined was rendered. In each case the clerk calculates the damages and the execution issues including them.

The argument that a purchaser who had purchased with notice of a judgment and subject to it, would have no means of protecting himself against the act of his vendor who could enjoin the judgment against his consent, applies equally to the case of an appeal. The vendor could appeal without the consent of his vendee, and the damages on affirmance become part of the judgment, which in the language of Tucker, president, in McClung v. Beirne, opens to receive them.

Nor, as was contended, does the fact that upon obtaining the injunction the party must give bond affect the question. The party appealing if the judgment or decree is superseded, must do the same. The bond gives additional security for the judgment, but does *not varjr its effect. When it opens to receive the damages they become, as it respects the party obtaining the injunction, a component part thereof; and the execution of elegit must have directed a levy for all by extent of the lands whereof such party was seized at the date of the judgment or had subsequently acquired. I think therefore the damages constituted a lien on the equity of redemption in this case as much as the original judgment.

The lien of the judgment however can only embrace the penalty of the bond, the costs at law, and the damages. The judgment was for eight hundred pounds the penalty of the bond, and the costs, to be discharged bjr the payment of four hundred pounds, with interest at the rate of five per cent, from the 21st of October 1796, until paid and the costs. The debt and interest exceeded the penalty; and though a jury might have given interest by way of damages up to the time of finding the verdict, that has not been done, and the debt must be measured by the penalty. That has been paid under the interlocutory decree of June 23d, 1832. The lien of the judgment exists for five hundred and fifty-five pounds nine shillings and ten pence; the damages to be paid on the dissolution of the injunction, and the costs of the judgment at law, but not for any continuing interest.

It is argued however that whatever might have been the legal rights of the parties upon a proper case, yet in the condition of the cause as it stood when the interlocutory decree appealed from was pronounced, no other decree could have been rendered. That the incumbrancers on Curies were brought into court by strangers; that the creditor who alone could assert his right to charge this equity had not done so by the mode in which alone he could do it; and that the relief already given to the appellant’s intestate is more than he was entitled to claim under the pleadings.

*The bill in this case was filed by several purchasers from Wade Mosby the principal debtor and Bittleberry H. Mosby his appearance bail. It assailed the original judgment upon grounds not now necessary to examine. It, moreover, set forth the various incumbrances created by said Mosby on his estate called Curies in Henrico, his conveyances of his lands in Powhatan, and the conveyances of Tittle-berry H. Mosby, and the facts in regard to the Curies land. It controverted the lien of the judgment; but insisted, that if it were a lien, there should be a ratable contribution by all the purchasers and incum-brancers after the judgment. This portion of the bill is nothing more than a bill con ■ vening all who are responsible to a common creditor, to ascertain whether any, and if so which, is primarily liable; or whether the burden should be apportioned amongst all. The creditor is not the party complaining here of being arrested by this proceeding, although he had the right to charge the whole of the estates of his debtors. That he looked to all for satisfaction appears from the fact of his suing out elegits directed to the sheriff of both Powhatan and Henrico counties. But although all were liable to the creditor at least for part of the judgment, as between themselves they occupied different relations. If the principal debtor Wade Mosby alone retarded the execution by the injunction, the appearance bail Tittleberry H. Mosby, and the purchasers from him, might, under the authority of Garnett v. Jones, 4 Leigh 633, have contended that his estate was not liable for the damages. If the principal’s estate was sufficient to pay the judgment, they had a right to insist on its being so applied in exoneration of the bail and his vendees; especially as a portion of it had been sold and the fund not then appropriated. All the subsequent purchasers from Wade Mosby were made parties, but none have objected to *the jurisdiction: And the appellees, the representatives of True-heart, who were made parties after the fund was brought into court,ftdo not controvert the right of the court to dispose of it; but set forth the grounds on which they claim it. I think the case was one proper for the jurisdiction of a court of equity; and that as each party was asserting distinct grounds for a total or partial exemption from responsibility, all questions as to the validity and extent of the lien, and what fund was primarily liable, were submitted for decision. The creditor in regard to these matters occupied the position of a party who has filed a bill of interpleader. All and each being liable to him, it was upon the case made by the bill and pleadings, competent to decree between him and any codefendant what fund should be primarily applied to his satisfaction. The plaintiffs supposing that the decision of Beverley v. Brooke, 2 Leigh 425, gave the rule of law, prayed for a ratable contribution; but the bill set forth all the facts and contained a prayer for general relief; and they should ; not be concluded by an erroneous impression of the laiv, when the facts showed they were entitled to a different relief. Still less should their mistake as to law conclude the creditor. In his answer he contends that the whole of the equity of redemption remaining in Wade Mosby was subject to his claim, and asked that it might be decreed to him. I think there is nothing in this objection, and that the case, as it stood when the interlocutory decree was pronounced, was in a condition to dispose of the fund in controversy according to the rights of the parties.

It has been further argued, that Mary G. Morrison, one of the plaintiffs suing by her next friend William W. Mosby, is precluded from shielding her own property by subjecting the equity of redemption in Curies to the lien of the judgment, to the prejudice *of the incumbrancer under the deed of trust, because she united with her husband in the deed to Allen of the 28th July 1828. In that deed it was recited that the various parties secured by the said deeds of trust had agreed, that William W. Mosby, one of the trustees named in the last deed of trust on the Curies property, should make sale thereof and apply the proceeds of sale to the purposes of the said several deeds of trust in the order of their dates respectively. Without stopping to enquire into the effect of such a recital in reference to a claim not alluded to or probably in contemplation of the parties when executing that conveyance, or its bearing upon the rights of a feme covert uniting with her husband ifa the deed; it is sufficient to say it can have no influence on the rights of the appellant. His lien on the equitable estate represented by the fund in court is paramount to that of the creditor secured by the deed under which the representatives of Trueheart claimed, and could not be impaired by any agreement of the various incumbrancers by deeds of, trust to distribute the proceeds arising from the sale of the property.

Upon the whole, it seems to me that the interlocutory decree of the 30th March 1846 was erroneous in holding that the representatives of William Trueheart were entitled to the fund in court in preference to the appellant ; and without considering any other question in the case, the decree should be reversed with costs; that the cause should be remanded with instructions to enter a decree declaring that the appellant is entitled to subject the fund under the control of the court arising from the sale of the land called Curies in the proceedings mentioned, to the satisfaction of the claim asserted by him, amounting to the sum of five hundred and fifty-five pounds nine shillings and ten pence and the costs of the suit at law, and his costs in the Chancery court expended; and that the ^appellees the representatives of said William True-heart deceased, are entitled to the residue of said fund; and to call in and distribute the fund according to the principles aforesaid ; and for further proceedings according to the rights of the parties, in order to a final decree.

The other judges concurred in the opinion of Allen, J.

Decree reversed.  