
    Richmond.
    Hudgin v. Hudgin’s ex’or & als.
    
    1849. October Term.
    (Absent Cabell, P. and Brooke, J.)
    Testator directs that after payment of his debts his whole estate shall be divided equally among his children. The personal estate being exhausted, a creditor files a bill against the executor alone, to subject the land to the payment of his debt; and a decree is made appointing commissioners to sell and convey the land, and out of the proceeds to pay the debt, and to pay the surplus to the executor. They act as directed, and their report is confirmed. Held :
    1. The devisees are not bound by the decree; and the sale and confirmation thereof, and the deed of the commissioners to the purchaser, did not operate to pass the legal title.
    2. That the will subjected the land to the payment of testator’s debts; and the purchaser having bought in good faith, is entitled upon a disaffirmance of the sale, to be substituted to the rights of the creditor, and to charge the land with the amount of the debt paid by him.
    3. That the creditor having entered into no covenants, and been guilty of no fraud, is not liable either to the purchaser, the ex’or or the devisees.
    
      4. That the creditor is a competent witness in behalf of the purchaser, to prove that his debt was just, and the amount thereof, against the devisees.
    5. The balance of the purchase money of the land having been paid to the ex’or, and he being in advance to the estate on the settlement of his administration account of the personal estate, the purchaser is entitled to subject the land to the amount the ex’or was so in advance ; and is entitled to a decree against the ex’or for the balance of the purchase money received by him.
    6. The rents and profits received by the purchaser whilst in possession of the land, should be deducted from the amount for which he is entitled to charge it, and he should have a decree charging the land for the balance.
    
      William Soper of Matthews county, died in 1797, having first made his will, which was admitted to record in the County court of Matthews; and John Hudgin qualified as his executor. By his will he directed that, after his debts were paid, his whole estate, real and personal, should be equally divided among his five children; one of whom died in his lifetime, and another died soon after him, intestate and unmarried.
    In 1798, Francis Armstead instituted a suit in chancery in the County court of Matthews, against John Hudgin as the executor of William Soper deceased, in which he stated that Soper and himself had been partners as merchants. That Soper, at his death, was indebted to him on their partnership accounts ; and that he had been obliged to pay, since the death of Soper, several debts of the firm. That these matters had been referred by himself and the executor to arbitrators, who had stated the accounts between Soper and himself, and had ascertained Soper's indebtedness to him on the 1st of June 1798, to be £208. 10. 11¾.: and he exhibited the settlement with his bill. He further stated that the executor Hudgin had settled his administration account before the County court of Matthews, by which it appeared that all the personal estate of Soper was exhausted in the payment of debts ; and that the executor was in advance to the estate. He charged that William Soper, by his will, had subjected his land to the payment of his debts; and he prayed that it might be sold and the proceeds applied as far as was necessary, to the satisfaction of the amount due him.
    The executor answered the bill. He does not answer in detail to the statement of the items of indebtedness stated by the plaintiff, but merely objects to the amount of one item, and fixes it at a smaller sum. He denies that the will of William Soper subjects his land to the payment of his debts.
    The cause was heard in June 1801, when the Court made a decree that the plaintiff should recover of the defendant the said sum of £ 208. 10. 11¾., with interest at 6 per cent, per annum, from the 1st of June 1798, until paid, if assets. But if there were no assets in the hands of the defendant, then certain commissioners were appointed to sell the real estate of which William Soper died seized ; and they were directed, if the estate sold for more than the debt and costs of the plaintiff, to take two bonds from the purchaser, one for the amount of the decree, and assign it to the plaintiff; and the other for the balance of the purchase money, which they were to assign to the defendant, to be assets in his hands. And they were further directed to retain the title until the purchase money was paid, and then to convey the land to the purchaser.
    The commissioners made their report to the Court in August 1801, from which it appeared that the land sold consisted of a tract of one hundred and three acres; and was purchased by John Hudgin the executor, at £424. 17. 6. That he executed his bond for £275. 18. 3¾, (that being the amount of the decree and the expenses of sale,) which the commissioners assigned to the plaintiff; and they permitted the executor to retain the balance of the purchase money. This report was confirmed bv the Court, and a final decree was made in the cause.
    Although the land was bought by John Hudgin at the sale, and he executed his bond, he in fact either purchased for Jesse Hudgin, his son-in-law, or he transferred his purchase to Jesse Hudgin on the day of the sale; and Jesse Hudgin paid to John Hudgin the whole amount of the purchase money in June 1803, and received a deed from the commissioners.
    At the October term for 1816, of the Superior court of Matthews county, John Hudgin and Polly his wife, who was the daughter, and John Soper, who was the soil, of William Soper deceased, recovered a judgment in ejectment against Jesse Hudgin for two undivided third parts of the tract of land which had been sold by the commissioners and conveyed to him as herein before stated: And Jesse Hudgin, thereupon obtained from the Chancellor of the Williamsburg district, an injunction to the judgment. In his bill he stated the proceedings in the County court of Matthews, the conveyance to him and his payment of the purchase money ; and filed with his bill a copy of the record in the case of Armstead against Hudgin, executor of Soper. He insisted that if the decree in that case was not binding on the devisees of William Soper, which, however, he did not admit, that the land was subjected by the will of William Soper to the payment of Armstead's debt; and that he, having paid that debt, was entitled to be substituted to Armstead's rights, and to have the land subjected to the satisfaction of that debt; or to recover the same from Armstead. He charged further, that the balance of the purchase money after satisfying Armstead, amounting to £ 148. 19. 2¼., had gone into the hands of John Hudgin, the executor of Soper, who was the same person who was one of the plaintiifs in the action of ejectment, and that he had disbursed the same either in the payment of the debts of his testator, or by distributing it among the devisees of William Soper. And he charged that he had made valuable improvements upon the land. And having made Francis Armstead, John Soper, John Hudgin and Polly his wife, and Betsy and Gideon Hudgin, the children of Nancy, who was another child of William Soper, and the first wife of John Hudgin, parties defendants, he prayed that he might be quieted in the possession of the land purchased by him as aforesaid, or that Francis Armstead and John Hudgin might be decreed to pay to him the sums of money received by them as aforesaid, with interest. Or if neither of these things could be done, that the land might be resold and his purchase money repaid to him, with a reasonable allowance for the buildings and improvements that he had put upon the land since his purchase. And he further prayed for an injunction to the judgment, and for general relief.
    
      John Soper and John Hudgin and wife answered the bill. They insist that the decree, in the County court of Matthews, did not bind them, as they were not parties to the suit; and that the decree was erroneous in directing all the land to be sold when little more than one half was necessary for the payment of Armstead’s debt. They insist further, that Armstead’s claim was unfounded ; but, if well founded, the land was only liable for the amount of that debt, and could only be subjected thereto by a resale. They admit the plaintiff had made improvements on the land, but without their consent ; and this, they say, was his folly.
    The cause came on in October 1817, upon the motion of John Soper to dissolve the injunction, and he having, in obedience to the requisition of the Court, filed a special answer, in which he denied that he had ever received any part of the purchase money, or other-consideration paid by the complainant for the land, the injunction was dissolved as to him.
    
      In. June 1818, Francis Armstead answered the bill. He stated the previous suit, and sale of the land, and that his debt had been paid. He insisted that his debt was properly settled and justly due. As to the parties to that suit, he was unable to say why the devisees were not parties. The suit was brought and conducted by his counsel; and if there was any improper management of the suit, he was ignorant of it.
    In November 1820, the cause came on to be heard, when the Court made a decree, by which it was held, that the proceedings of the County court of Matthews, was not evidence against any of the defendants, except John Hudgin as the executor of William Soper; and a commissioner of the Court was directed to take an account of the partnership transactions between Soper and Armstead; and to enable the commissioner to execute the order, Armstead was directed to deliver to him, on oath, all the books and papers of the said firm in his possession. And if, upon that account, Soper was indebted to Armstead, the commissioner was directed to state an account of the administration of John Hudgin, the executor, upon the estate of William Soper.
    
    This cause was subsequently removed to the Richmond Chancery court; and in 1832 it was removed to the Circuit court of Gloucester county. In 1833, the death of John Hudgin and Polly his wife, and of Betsy Hudgin who had married first William E. Thomas, and after his death, John Shackleford, was suggested; and in 1834, the suit was revived against their heirs. John Soper seems to have died in this year ; and in 1835 it was revived against his heirs, and in 1837 against John Hudgin, administrator de bonis non &c. of William Soper, and administrator of John Hudgin; and the Court then made an order directing that a commissioner of the Court should execute the order of account made in November 1820.
    
      In 1838 the commissioner reported that Francis Armstead had stated upon oath, (and the affidavit was returned with the report,) that in consequence of the loss by fire of his dwelling house and all his books and papers, he was entirely unable to render the accounts required of him. But from his recollection of those transactions, he stated that the record of his suit in the County court of Matthews against John Hudgin, executor of William Soper deceased, a copy of which was filed in the cause, contained a correct and full history of those transactions. The commissioner reported further, that the administrator of John Hudgin produced a settlement of his intestate’s administration account on William Soper’s estate, made before the Court of probat. That no objection was made to this account by any of the parties to this suit. And from this account it appeared that upon the account of the personal assets, the executor was in advance to the estate the sum of £ 28. 8. 3½., on the 16th of June 1798. But charging him with that part of the purchase money of the land which went into his hands, he was debtor on the 24th of January 1802, £106. 19. 0½.
    The affidavit of Armstead returned with the report, is correctly stated therein. John Patterson, the clerk of the County court of Matthews, when the case of Armstead v. Hudgin, executor of Soper, was pending and decided, was examined by the plaintiff, and proved the payment by Armstead of a debt of the firm of Soper & Armstead, after Soper's death, of £ 124. 19. 1¾., which was one item in Armstead’s account.
    In October 1838, the Court made another order directing an account of the annual value and rents of the land bought as aforesaid by Jesse Hudgin. In taking this account, Armstead was examined by the plaintiff as to the annual value of the land, and he was objected to as an incompetent witness by the defendants. The commissioner fixed the annual value, as the land was at the time of the sale in 1801, at 20 dollars; though it appeared the plaintiff had put considerable improvements upon it, and had also improved the land. Charging the plaintiff at this rate, he reported as due from him on the 1st of January 184.0, 780 dollars of principal, and 843 dollars 60 cents of interest.
    The plaintiff excepted to the account of the rents of the land, on the ground that they were not a proper-subject of consideration in this suit.
    In October 1.840, the cause came on to be finally heard, when the Court sustained the plaintiff’s exception to the account of the rents; and dissolved the injunction, so far as it had not been before dissolved, and dismissed the bill with costs; the plaintiff waiving any relief against John Hudgin or his estate. Prom this decree Jesse Hudgin applied to this Court for an appeal, which was allowed.
    
      Harrison, for the appellant,
    insisted:
    1st. That the land in the hands of Soper’s devisees was liable to satisfy Armstead’s debt. This debt he insisted was proved by the evidence in the cause; and as all the parties were before the Court, and the personal estate was proved to have been exhausted, it was the right of the appellant to be substituted to the rights and remedies of Armstead, whose debt he had paid, and to have the land sold for the satisfaction of the debt.
    2d. That the creditor Armstead was responsible to the appellant for the amount the appellant had paid to the satisfaction of his elaim against Soper. That the appellant having purchased at a judicial sale, if the proceedings were irregular so that the sale was invalid, and the purchaser thus lost the land, he was entitled to have his purchase money returned to him: the proceedings and the sale being in fact a fraud upon him. And to shew that the decree and sale were irregular and invalid, and did not bind the devisees of Soper, he referred to 
      Chamberlayne v. Temple, 2 Rand. 384; Mason’s devisees v. Peter, 1 Munf. 437; Shields v. Anderson, 3 Leigh 729; Foster v. Crenshaw, 3 Munf. 514; Garnett v. Macon, 6 Call 308; 2 Rob. Pr. 89.
    
      Mason, for Armstead,
    
    insisted:
    1st. That the will of William Soper subjected his lands to the payment of his debts; and that it constituted the executor a trustee as well for the creditors as for the children of the testator, whose claim and title to the land, was not as heirs but as devisees. That Armstead could alone sue in equity to establish his debt founded on an unsettled partnership account; and that by such suit in a Court of competent jurisdiction, a decree establishing his debt, bound the equitable, in default of legal, assets: And for this purpose, the will conferred on the executor the power, and it was his duty, to sell and convey the lands. And he referred to 3 Lomax’s Dig. 274, 276; 1 Rev. Code, ch. 104, § 52 ; Dunn v. Amey, 1 Leigh 465 ; 2 Jarmin on Wills, 205, 206 ; Garnett v. Macon, 6 Call 308.
    2d. That the relation thus constituted established a privity between the executor and the devisees, which made the decree establishing the debt, at least prima facie evidence against the devisees. He examined the cases cited by the appellant’s counsel, and endeavoured to shew that they did not apply to a case in which, by the will of the testator, the executor was authorized to sell the land for the payment of debts. And he insisted that if they were to be construed as extending to such a case, they had gone too far and should be restricted. For the correct principle on the question, he referred to Garnett v. Macon, 6 Call 308; Pennock v. Freeman, 1 Watts’ R.. 401.
    3d. That Armstead’s debt binding the land in default of legal assets, he was in no manner bound for the title conveyed to the purchaser, and as a consequence, that 
      Jesse Hudgin purchasing at a judicial sale, with notice of the claim of Armstead, and of the circumstances under which the commissioners acted, was bound to look to the title; and if defective he had no claim on the creditor for whose benefit the sale was made. In such case the rule caveat emptor applies. On this point he referred to The Commonwealth v. M’Clanachan’s ex'or, 4 Rand. 482; Sugd. Vend. 346, 350. And this, he said, was in strict conformity to the doctrine in regard to personalty sold under an execution. In such cases it is well settled that the purchaser could not subject the creditor, when the property sold had been recovered from him, until the late act altering the condition of indemnifying bonds; and where no indemnifying bond is required, the creditor is not now bound to refund.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as the children and devisees of William Soper deceased, were not parties to the chancery suit instituted in the County court of Matthews, by Francis Armstead against John Hudgin, executor of the said William Soper deceased, for the establishment and recovery of the debt claimed to be due from the said William Soper, and to charge the same on the realty in the event of there being no personal assets, the children and devisees are not bound by the decree, directing a sale of the land devised; and that the sale and confirmation thereof, and the deed of the commissioners to the purchaser, did not operate so as to pass the legal title. The Court is therefore of opinion, that there is no error in so much of the decree appealed from as dissolved the injunction to the judgment recovered in the action of ejectment in the bill and proceedings mentioned.

The Court is further of opinion, that as the will of the said William Soper charged all the estate devised with the payment of his debts, and as it appears from the report of the commissioner that the whole of the personal assets had been exhausted, leaving unsatisfied the debt due to said Francis Armstead, his debt when established as against the devisees, would have been a charge.on said real estate : And the same having been paid by the purchaser of said real estate, who purchased under said decree,' in good faith, and with the expectation of thereby acquiring a good title to said estate, the purchaser, in the event which has happened, of a disaffirmance of said sale, is entitled to be substituted to the rights of the said Armstead, and to charge said estate with the amount of said debt so paid by him.

The Court is further of opinion, that in this cause and as between these parties, the said Francis Arm-stead was, under the circumstances, a competent witness to prove the validity of his debt. He was under no responsibility to the purchaser at the sale, because he entered into no covenants binding him for the sufficiency of the title; and it was as much the duty of the purchaser as of the creditor to look to the regularity of the proceedings. And there being no fraud charged or imputed to him, the purchaser, in no event could look to him for indemnity; in such case, he purchases at his own risk. Nor could said Armstead be held responsible in any event, to the executor of William Soper; for as against him, the validity of his debt, and his right to receive payment, was established by the decree. Nor was he liable to the devisees; for as to them, the proceeding was merely void, and did not prevent them from asserting their legal title, and recovering the land. And the Court is further of opinion, that by the testimony of John Patterson, and the evidence of said Arm-stead before the commissioner, taken in connexion with the other circumstances of the case, irrespective of the decree of the County court, it appears that the debt due to said Armstead, amounted to £ 208. 10. 11¾., for which, sum, with interest thereon from the 1st day of June 1798, until payment, said land in the hands of the devisees, is chargeable on account of the debt due said Armstead. And it furthermore appearing that the purchaser, after discharging the debt, interest and costs due to said Armstead, paid over to the said John Hudgin, as executor of said William Soper, the balance of the purchase money, in pursuance of said decree; and the report of the commissioner, shewing that upon a settlement of the executor’s accounts, there was a balance due to him of £ 28. 8. 3½., which was satisfied by an application of so much of the purchase money of said land, the purchaser has a right to be substituted to the rights of the executor, and charge the land with that sum, with interest thereon from the 16th June 1798, until paid. And for the residue of the purchase money, he would have had a right, had not the same been waived, to call on said executor to refund; it not appearing by the commissioner’s report, that the executor has disbursed the same in payment of debts or to the legatees.

The Court is further of opinion, that in ascertaining the amount for which the purchaser is entitled to charge the land devised, his claim should be credited with the amount of the rents and profits as ascertained by the report of the commissioner, made out in the cause, and to be continued from that time ; and that for the residue of the sums, £208. 10. 11¾. and £ 28. 8. 3½., with interest as aforesaid, which may remain after crediting the rents and profits as ascertained by said report, and continued from that time, the appellant is entitled to a decree declaring the same to be a charge on the land, and providing that unless the same should be paid by the devisees within a reasonable time, that said land be sold for the satisfaction thereof, on terms to be prescribed for the purpose.

It is therefore adjudged, ordered and decreed, that so much of said decree as conflicts with the principles herein declared, be reversed, with costs to appellants; and that the residue be affirmed. And the cause is remanded to be further proceeded in according to the principles of this opinion, in order to a final decree.  