
    Lewisburg.
    Burbridge v. Higgins’ adm’r.
    
    1849. July Term.
    
    ( Absent Cabell, P. and Brooke, J. )
    1. In a suit in the nature of a foreign attachment, the subpoena is served upon the absent defendant, and there is a personal decree against him in favour of the plaintiff, for the amount of the debt. In another suit brought by the plaintiff to obtain satisfaction of this decree, the validity of the decree in the first suit cannot be questioned.
    2. A person largely indebted, purchases land and pays a part of the purchase money, and has the land conveyed to his son ; and the son conveys it in trust to secure the balance of the purchase money. The son then sells the land to a third person at an advance upon the price given by the father. A decree creditor of the father files a bill to set aside the conveyance as fraudulent as to creditors ; and pending this suit the balance of the original purchase money is paid by the last purchaser out of the money due from him to the son. The plaintiff being willing that the last sale shall stand, and to look to the purchase money for satisfaction. Held :
    1. That the deed of trust given to secure the balance of purchase money on the first sale, being still outstanding, though satisfied since the commencement of this suit, the plaintiff is entitled to have the whole of the purchase money, after satisfying said trust, and not a moiety only, applied to the discharge of his debt.
    2. That the creditor’s lien being upon the land of his debtor, and not on his money vested in land, he is entitled to have the advanced price of the land applied to his debt.
    3. A decree is a lien on the debtor’s land, and the creditor may come-into equity to subject the land, though the decree has not been revived against the adm’r of the debtor, and no execution has ever issued upon it.
    On the 26th of March 1840, John Brady, as administrator of John Higgins, instituted a suit in chancery in the Circuit court of Monongalia county, against John and Henry L. Burbridge. The hill charged that in 1822, Higgins became the endorser of John Bur-bridge in the branch bank at Romney for the sum of 1850 dollars, which he was compelled to pay, with costs of suit. That the plaintiff had proceeded against said Burbridge, who resided in Maryland, by foreign attachment in the County court of Hampshire, and in February 1836, obtained a decree against him for the sum of 1850 dollars, with legal interest thereon from the 11th of August 1822 until paid; but that the property attached did not pay the costs of the suit; so that the whole amount of said decree, principal and interest, was still due.
    The bill further charged that about the year 1836, John Burbridge purchased a tract of land in the county of Monongalia, of one Notley T. Carter, for the sum of 2800 dollars, which was to be paid in annual payments of-dollars. That for the purpose of shielding said land from his creditors, the contract was made in the name of his son, Henry L. Burbridge, and the deed for the land was executed by- Carter to the said Henry L. That at the time of the contract, Henry L. Burbridge was a young man without any pecuniary resources; and that since the purchase, there had been paid on said contract, the sum of 1600 dollars, or perhaps more. That said payments were either made by John Burbridge, or with money furnished by him. And that the whole transaction was a fraud upon the creditors of John Burbridge, of which Henry L. Burbridge was well aware.
    The bill made John and Henry L. Burbridge defendants, and prayed that there might be a sale of the land to satisfy the plaintiff’s debt, and for general relief.
    In April 1841, the plaintiff suggested the death of John Burbridge, and an amended bill was filed, making his widow and heirs parties: of these, Edward Burbridge was one.
    In April 1842, Henry L. Burbridge demurred to the bill; but his demurrer was overruled; and in April 1843, he filed his answer. He admits that his father, John Burbridge, negotiated the contract with Carter for the land in question, and paid a part of the purchase money to Carter. But he says that at that time, he was thirty-two years old j and since his coming of age until then, except between two and three years, he had lived with his father at an agreed compensation of 100 dollars a year, with the privilege on his part, of employing about six weeks in each year, in boating on his own account. That at the time of the purchase of the land, his father owed him about 850 dollars. That the father proposed purchasing the land for him, advancing the 850 dollars, and as much more as he could advance for the benefit of another son, who was in a great degree helpless from the failure of his eyesight. That accordingly the land was purchased from Carter at the price of 3000 dollars, of which 600 dollars was to be paid in cash, and the balance in six annual payments of 400 dollars each, commencing on the 1st of April 1837. That of the purchase money, John Burbridge paid about 781 dollars more than he owed the defendant, for the benefit of the son before mentioned.
    
      In March 1844, the plaintiff again amended his bill, and made the administrator of John Burbridge, and Benjamin B. Burns, who had purchased the land from Henry Burbridge a few days after the commencement of this suit, parties defendants; and the administrator having filed his answer, saying he had no assets and knew of none, the Court at the same time made a decree directing a commissioner to enquire and report, 1st. What was due to the plaintiff by reason of the matters alleged in his bill. 2d. What amount of purchase money was due to Carter. 3d. What had been paid by the defendant Burns upon his purchase, and to whom; and what was yet due from him, and when to be paid. 4th. What money or other consideration was paid by Henry L. Burbridge for the land in the bill mentioned.
    In February 1845, the commissioner reported: 1st. That there was due to the plaintiff from John Bur-bridge, of principal with interest to the 10th of February 1845, 4347 dollars 50 cents. 2d. That Carter had received the whole of his purchase money; of which 1800 dollars had been paid by Henry L. Burbridge, and 1200 dollars by Burns. 3d. That Henry L. Burbridge had sold the land to Burns for 4500 dollars, of which, 1500 dollars was payable the 1st of May 1840, and the balance was payable in six annual payments of 500 dollars, commencing on the 1st of April 1841. That he had paid to Henry L. Burbridge 1100 dollars, and had paid to Carter 1200 dollars ; and there was due from him of principal 2200 dollars, and of interest up to the 10th of April 1845, 121 dollars 98 cents. 4th. That exclusive of the sum of 1631 dollars, paid to Carter by John Burbridge, there had been paid to him 1369 dollars, of which 1200 dollars was paid by Burns, leaving the amount which had been actually paid by Henry L. Burbridge, 169 dollars. The commissioner made another statement, in which he credited 
      Henry L. Burbridge with the 850 dollars which he claimed that his father paid on account of the debt the father owed him, and with the 1369 dollars paid to Carter as above stated, and with the interest upon these sums from the time they were paid to the 10th of February 1845; making together the sum of 2805 dollars 24 cents. And he then deducted the amount paid by Burns, 1200 dollars, with interest from the time of payment, leaving as having been paid to Carter by Henry L. Burbridge, the sum of 1327 dollars 26 cents, principal and interest. And he reported that Henry L. Burbridge claimed sundry credits for money paid by him on account of the land, amounting to 33 dollars 58 cents.
    
      Henry L. Burbridge excepted to the report of the commissioner, on the ground that the sum paid by Burns to Carter was improperly deducted from the amount paid by him; and he insisted that the amount paid by Burns was in effect money paid by himself, as it was a part of the increased price of the land which he had obtained from Burns over that for which it was purchased from Carter.
    
    In March 1845, the Court made a decree, directing Burns to pay to the plaintiff the sum of 1000 dollars, out of the money appearing by the commissioner’s report to be in his hands. And all questions as to the remaining moneys in the hands of Burns, and as to the rights of the plaintiff against Henry L. and Edward Burbridge were reserved.
    The material evidence in the cause consisted of the record of the suit in the County court of Hampshire, in which, though it was commenced and proceeded in as a foreign attachment against John Burbridge, the process was returned executed. The proceedings in the suit were very irregular, but there was a decree on the 22d of February 1836, against John Burbridge in favour of the plaintiff, as administrator of Higgins, for 1850 dollars, with interest from the 11th of August 1822 until paid. The deed from Carter to Henry L. Burbridge, which bore date the 31st of December 1835, and a deed of the same date from Burbridge to Ma-them Gay, conveying the land in trust to secure the purchase money. The deed from Henry L. Burbridge to Burns, bearing date the 31st of March 1840; and various depositions in reference to the indebtedness of John Burbridge to Henry L. Burbridge: and the evidence rendered it improbable that such a debt was due.
    The cause came on to be finally heard in the Circuit court in September 1846, when the Chancellor—Fry— delivered the following opinion:
    
      “ The decree of the Court of Hampshire, though the record exhibits great irregularities, must be regarded here, as final and correct.
    “ I cannot review the record in this cause, and undertake to reverse it. It was, in fact, a decree, rendered upon bill, and subpœna returned duly served, and this might well be, though the defendant was, in fact, an absent defendant. For he may have been absent when the subpœna issued, yet returned for a time about the period of the service by the sheriff.
    “ It is a decree in a chancery cause, upon personal service of the subpœna; though it professes also to be founded upon publication, &c.
    
      “ I am satisfied that the deed to Henry L. Burbridge must be considered as voluntary and fraudulent, as regards the plaintiff. At most, it was an advancement to the son by a father greatly indebted; and who had been, for a long while, pursued in vain, for a just debt. Being thus indebted, and buying and paying for, himself, a tract of land, and taking the deed in the name of the son, the transaction is presumptively fraudulent. Hutchinson v. Kelly, 1 Rob. R. 123. It was incumbent on the son to prove it otherwise. But he has offered no proof to such effect. And the witnesses examined for the plaintiff, negative the pretence that he could have been at the time of the deed, even a bona fide creditor of his father to the extent alleged.
    “ The question remains, to what decree the plaintiff is entitled ? The suit was begun the 26th of March 1840, and on the 31st of the month, five days after, the defendant Burbridge sold to the defendant Burns for 4500 dollars. The said Burns is, therefore, a purchaser pendente lite; and the land in his hands would be liable to any decree to which it would be subject in the hands of H. L. Burbridge.
    
    
      “ But the plaintiff is willing not to disturb the sale, and asks a decree only against the proceeds of sale in the hands of Burns and H. L. Burbridge, respectively.
    
      “ The defendant Burbridge insists that the plaintiff is entitled to no more than the 781 dollars or 1631 dollars, which he admits his father paid for the land, with interest. That this was all the funds of the father, diverted from his creditor, and that the land, and its value beyond that, should go to the son. But the claim of the creditor is not the money of John Burbridge invested in the land. His decree did not bind that. John Burbridge converted his money into land; and the plaintiff’s claim is a lien attaching to the land. The whole land must be regarded as John’s, as the debt for which the defendant Henry says the father paid 850 dollars, is not only not proved by any evidence, but I think, disproved. The whole land is a voluntary settlement by the father upon the son, and is a resulting trust in the son, for the father’s creditors, who, by their liens, bind the realty of the father. And the true question is, whether the plaintiff’s lien binds the whole of the land, or the moiety only. If the title of the land had been made to John Burbridge, and it had either remained in him at the time of the decree, or he had afterwards conveyed it to his son, the decree would have bound only a moiety. Coleman v. Cocke, 6 Rand. 619. Or if it had remained wholly in H. L. Burbridge, by the deed of Carter, if there had been no deed of trust made to Gay to pay the purchase money, I am inclined to think the result would be the same,
    “ But at the time of the decree, the legal title was in Gay, to pay the purchase money in part. It so remained at the institution of this suit; and though the debt has been since paid off, yet it has been done by the sale of the property itself, and out of its proceeds; with the exception perhaps, of 169 dollars.
    “ Did the decree, then, bind the equity of redemption only ? Or was there really such an equity only, as under the case of Haleys v. Williams, binds the whole, and not a moiety ? It is said the transaction should be regarded as no worse for H. L. Burbridge than if the deed had been made to John Burbridge ; and that then it would bind a moiety only. But suppose it had been, and John Burbridge had given the deed of trust, instead of Henry, and in this condition the decree came, and afterwards this suit, and then the sale to Burns, would not the case of Haleys v. Williams apply ? It seems to me that it would. At the date of the suit the plaintiff, under the facts, would have had a right to redeem the property, and by a sale or otherwise pay off the deed of trust, and take the residue of the proceeds.
    “ What is that residue ? 1200 dollars was paid to Carter by Burns, leaving 3300 dollars of the nett proceeds; and we may allow 169 dollars to have been paid by H. L. Burbridge otherwise, and the principal balance remains of 3131 dollars, besides interest. Burns has 2200 dollars of principal in his hands; and at the date of the master’s report, 121 dollars 98 cents of interest; of which he has paid, under a former decree, 1000 dollars. The whole of this sum of 2321 dollars 98 cents, subject to this payment of 1000 dollars, he should pay to the plaintiff.
    
      
      “ Of the residue 1100 dollars was paid to H. L. Bur-bridge, from which take the 169 dollars, and there is of principal 931 dollars in the hands of H. L. Burbridge to he accounted for. This 1100 dollars was paid the first of May 1840. Add interest on the 169 dollars from the first of April 1837 (as most liberal for H. L. Burbridge,) to the first of May 1840, 31 dollars 26 cents, and take this latter sum of 31 dollars 26 cents from 931 dollars, and we have 899 dollars 74 cents, as of the first of May 1840 :
    In the hands of Burbridge, 899 74
    From this take, paid to M. Gay, 37 38
    $862 36
    “ This calculation makes 862 dollars 36 cents in H. L. Burbridge's hands, as of the first of May 1840, which, deducting his costs of this suit, he may be decreed to pay to the plaintiff. (But, perhaps, plaintiff will take it with interest from a later day, say the time of this decree.)
    “ Defendant contends that the decree did not bind, because it had not been revived, and no execution had issued upon it; but this question is settled by the case of Taylor’s ex’or v. Spindle, 2 Gratt. 44.”
    The plaintiff waiving a decree against the land, and also waiving a personal decree against Henry L. Burbridge, for the sum of 1100 dollars, which was paid to him out of the purchase money by Burns ; the Court gave him a decree against Burns for the whole of the purchase money of the land ascertained by the report to be unpaid, amounting to 2321 dollars 98 cents, with interest on 1200 dollars from the date of the report, and for the two payments of 500 dollars each, due in April 1845 and 1846 from the time they fell due, subject to a credit of 1000 dollars paid under a previous decree in the cause; and on the ground that the plaintiff had waived a personal decree against Henry L. Burbridge, the Court directed that said Burbridge should pay his own costs. Prom this decree Henry L. Burbridge applied to this Court for an appeal, which was allowed.
    
      Guy R. C. Allen, for the appellant.
    1. It is contended that the purchase was before the appellee had acquired any lien against the personal or real estate of John Burbridge, when there was nothing to hinder John Burbridge from paying to his son Henry L., whatever he might owe him, or giving to a blind son money to be vested in land, so that it was not done with intent to hinder, delay or defraud creditors. In the case of Coleman v. Cocke, 6 Rand. 619, nothing was paid by the sons to any body. Henry L. answers ingenuously, and his answer if taken as true in part should be considered as true throughout; for without its disclosure it is not known that the father advanced any part of the purchase money.
    
    2. The decree in Hampshire is a nullity. Kelso v. Blackburn, 3 Leigh 299. No affidavit of non-residence. No effects of non-resident debtor. No publication at courthouse door, though each of these things are necessary to make the proceeding good. Brien v. Pitman, 12 Leigh 379; Hopkirk v. Bridges, 4 Hen. & Munf. 413; Miller v. Sharp, 3 Rand. 41; Rootes’ ex’x v. Tompkins, 3 Gratt. 98.
    3. Even if the Hampshire decree be valid, a moiety of the land only should have been held liable, and not the entirety. Stileman v. Ashdown, as collected from 2 Atk. R. 477, and Amb. R. 13, cited by Judge Green in Coleman v. Cocke, 6 Rand. 619. And this same case is cited as a precedent in the case of Haleys v. Williams, 1 Leigh 140. It was because there were several decrees in Coleman v. Cocke, that the whole 
      land was sold; had there been but one as in this case, a moiety only would have been sold, as in Stileman v. Ashdown.
    
    
      Price, for the appellee.
    It is said that the decree of the County court of Hampshire is a mere nullity. That decree, though the suit purported to be a foreign attachment, was made upon the subpœna executed on John Burbridge. It was a decree by a Court having jurisdiction of the subject, between parties regularly convened before the Court. It was, therefore, binding on Burbridge, and cannot be questioned collaterally in another suit between other parties. At least it is binding until it is shewn to be erroneous, not in form, but in substance. Rootes’ ex’x v. Tompkins, 3 Gratt. 98.
    The decree being binding, if the land in question was the land of John Burbridge, then as there was a deed of trust upon it to secure the purchase money to Carter, the creditor was entitled to have the equity of redemption in the whole tract sold for the payment of his debt. Haleys v. Williams, 1 Leigh 140; Coutts v. Walker, 2 Leigh 268; Withers v. Carter, 4 Gratt. 407. But in fact the amount decreed by the Circuit court to the appellee is not equal to one moiety of the price of the land which was to be paid by Burns.
    
    The evidence and the admissions in the answer of Henry L. Burbridge abundantly prove that, in law, at least, so far as creditors are concerned, the land was the land of John Burbridge. He made the purchase ; he paid the purchase money; and there is not only no proof that he was indebted to Henry L. Burbridge, but the fact of indebtedness is certainly rendered extremely improbable; whilst it is admitted that one moiety of the money which he paid to Carter was his own, and was intended as an advancement to his son Edward Burbridge. That John Burbridge was largely indebted at the time is clear. The appellee himself had been pursuing him in vain from the year 1826 for the recovery of the debt which is the subject of this suit. If, therefore, the land was intended as an advancement, still the transaction was fraudulent as to creditors. Charlton v. Gardner, 11 Leigh 291; Hutchinson v. Kelly, 1 Rob. R. 123; Hunters v. Waite, 3 Gratt. 26.
   By the Court.

The decree is affirmed.  