
    *Burwell’s Adm’rs v. Fauber & als.
    August Term, 1871,
    Staunton.
    Will — Suit by Administrator d. b. n. — Case at Bar. — F devises by bis will, a tract of -land named H, witb bis personal property, for the payment of bis debts: another tract, named P, to bis two sons, N and T, subjected to charges of an annuity of $200, in favor of bis wife, and a legacy of $1,000 to another son, J, and $1,500 to bis daughter K, and be appoints N and T bis executors. He bad been adm’r c. t. a. of H, and soon after bis death his adm’n account was settled, showing, amounts due to the legatees of H. N and T, as ex’ors, sell to the widow the tract H, for $2,700, of which $1,200 is given in lieu of her annuity, and she releases the charge upon the P land: and she gives her bond, with a lien on the H land, for the amount of J’s legacy. Within eight months after the death of F, his sons N and T sell the P tract to B for $7,000; their deed referring- to F’s will for tlieir title, and they covenanting to remove all charges. But a few days after this deed, G, as adni’r de bonis non of H, filed his hill against F's ex’ors and devisees, B and the legatees of H, to recover the amounts reported to he due from F to the estate of H. Held:
    i. Same — Same — Same. — The legatees of H being parties, and concurring with the plaintiff, he may maintain the suit.
    3. Same — Purchasers—Constructive Notice of Provi sions of Will.-- IS had constructive notice of the provisions of the will of F, and that the H land had been sold by N and T to pay charges upon the P land, and was bound therefore to enquire whether the debt oí F, which was directed to be paid out of the H tract, had been discharged.
    3. Same — Same—Same—Liability of Purchaser. — B being a purchaser with constructive notice, his land is liable to satisfy the charges upon it: and two of these charges having been satisfied out of the H tract, the creditors are entitled to be sub-rogated to the rights of these legatees, and to the extent of these charges, to have the land of B subjected to the satisfaction of their claims.
    4. Same — Same—Same—Same.—There having been a decree against the sureties of F, on his bond as adm'r c. t. a. of H, in favor of the creditors, and they having paid the decree, have a right to be substituted to the creditors rights against the land of B.
    *This case was heard at the August term of the court held at Staunton, and was decided at the November term held at Richmond.
    Thomas Hutchins, of the county of Augusta, died in 1851, having made a will which was admitted to probate in the County court of that county. By his will, after two devises of land, he directs the residue of his property to be sold, and after directing his executors to pajT one hundred dollars to his grand-daughter, Nancy Ann Alford, when she comes of age, he gives the residue to four of his daughters. One of these was Catharine Tauber, wife of John Tauber, and another was Betsey Helmick, wife of John Helmick, and he directs his executors to manage the share of B. Helmick so as to benefit her, and prevent her husband from having any control of it. The executors named in the will refused to qualify as such, and John Tauber became the administrator with the will annexed, and Wm. A. Bell and others became his sureties.
    John Tauber died in 1855, and in that year his administration account seems to have been reported upon by a commissioner ; and in January 1856 an order was made by the court recommitting the report to the commissioner to be revised by him. He returned his report in October 1856, which was confirmed and ordered to be recorded. This report shows that after retaining in his hands the legacy of .$100 to N. A. Alford, the distributable share of each of the four daughters was $1,110.83, as of the 1st of July 1855: of the shares of two of the daughters about one half had been then paid, and they had subsequently received payment in full; but nothing was paid to Mrs. Helmick.
    John Tauber, by his will, after by the first clause giving to his wife Catharine certain household furniture, devised and bequeathed as follows: 2d. My Heiskell farm, bought of James A. Cochran, and all my personal estate, other than the articles above given to my *wife, I wish reduced to money, for the payment of my debts; and any surplus remaining to be applied towards paying the legacies hereafter given to my daughter Keturah and my son Joseph and family.
    3d. I direct that, my home place, containing about two hundred and thirty acres, be divided equally between my sons Noah and Thomas, quantity and quality considered; this land to be charged in equal portions with the payment of the following legacies:
    4th. To my wife during her lifetime, the sum of two hundred dollars a year, counting from my death, and payable half yearly.
    5th. To my daughter, Keturah, fifteen hundred dollars, payable when she comes of age or marries, the interest in the meantime to be paid to her mother for her support and education.
    6th. To my son Joseph and family, one thousand dollars, to be held in trust by my said sons Noah and Thomas, and the interest applied annually for the comfort of my said son and his wife and children, free from the debts of the said Joseph. At the death of said Joseph and his wife, or upon the death of the said Joseph, and the marriage of his widow, this fund to be equally divided among their children. If no children, then to be equally divided among my other children, or their representatives.
    7th. I appoint my sons Noah and Thomas executors of this will.
    This will was admitted to probate in the County court of Augusta, and Noah and Thomas Tauber qualified as executors, with David A. Kayscr and Charles T. Cochran as their securities.
    By deed bearing date the 24th of April 1856, Noah and Thomas Tauber, as executors of John Tauber deceased, in consideration of the sum of $2,700 conveyed to Catharine Tauber the tract of land described in the will of their testator as the Heiskell farm. And it was ^stated in the deed that of the sum of twenty-seven hundred dollars, $1,200 had been paid, and she had given to them her bonds, one for $500, payable on demand, and the other for $1,000, given to them as trustees of Joseph Tauber and his family. Tor these two bonds a lien was expressly retained upon the land conveyed. And Catharine Tauber, for the consideration of, $1,200 paid to her in the purchase of the land aforesaid, released to Noah and Thomas Tauber all right, title, interest and claim which she had under the will of John Tauber to the annuity of $200 provided by the said will for her benefit during her life, and she discharged the whole estate of John Tauber from any charge created to secure the said annuity, and from all claim for dower or distribution in said estate. Catharine Tauber signs the deed by her mark, and her signature is attested by Thomas C. Burwell. But the deed was acknowledged by all the parties before a notary, and admitted to record.
    By an agreement under seal bearing date the 21st of January 1857, Thomas C. Bur-well purchased of Noah and Thomas Tauber, the home place devised to them by their father, John Tauber, at the price of $7,000; and he was to pay for the place $2,000 in hand, in goods in his store at Cline’s mill, and $1,000 a year for the balance; and they were to take the remainder of his goods, the price of which was to be credited on the first three deferred payments. And they bound themselves to make to Burwell a good title to the land.
    By deed bearing date the 10th of March, 1857, Noah and Thomas Tauber, in consideration of five thousand three hundred and seventy-seven dollars and forty-one cents in hand paid, and $1,622.59 secured by Bur-well’s bond of that date, conveyed to him the land, describing it as the land devised to them by their father, subject • to certain charges mentioned in his will, to which they refer. And they covenant that they will obtain from the Circuit court of Augusta a decree exonerating said land entirely *from the charges and in-cumbrances still binding upon it under said bill, such decree to be applied for at the next June term of said court. And they warrant the title generally.
    In April 1857, George Baylor, as the administrator de bonis non with the will annexed of Thomas Hutchins, brought his suit in the Circuit court of Augusta county, against Noah and Thomas Tauber as executors of John Tauber, and in' their own right, and the legatees of Hutchins, setting out his will, and exhibiting a copy of the account of John Tauber’s administration on Hutchins’ estate; and he prayed that Noah and Thomas Tauber be compelled to pay to the plaintiff whatever may be found due to the estate of Thomas Hutchins, or the legatees under his will; and that the whole estate of John Tauber be subjected, if necessary, to pay whatever may be found to be due to the estate of Hutchins.
    Before any answers were filed, the plaintiff amended his bill and made Bell and the other sureties of John Tauber and Thomas C. Burwell additional defendants. And in the progress of the cause the sureties of Noah and Thomas Tauber1 were also made parties. The amended bill sets out the conveyance to Catharine Tauber, and also that the home place had been sold to Burwell; and prays that the sureties of John Tauber .may be compelled to pay what is due from their principal; and if necessary, that the land in the possession of Burwell may be subjected to satisfy the demand.
    The process was served on Noah and Thomas Tauber; though they appear to have removed from the Commonwealth during the pendency of the cause. Answers were filed by the guardian ad litem of Nancy L. Alford and another infant defendant. Heimick, and his wife Betsy Helmick, answered. They say that they live and have lived for many years in the State of Illinois; that they have tried to obtain something from the estate of Hutch-ins, but in vain, and they have never received a cent; *and they join in the prayer of the bills, and ask that the court will grant the plaintiff any aid in its power to collect the legacy to which they are entitled; and to make such other order as the court may deem proper for the protection of their rights.
    Burwell answered. He says that prior to his purchase of the land he probably was aware of the fact, that John Tauber had been in his lifetime administrator or executor of Thomas Hutchins; but he certainly had no knowledge of the state of his accounts as such administrator or executor. After the death of John Tauber, and the qualification of his executors, the first knowledge the respondent had of any of their transactions was his attestation of the deed between the executors and Catharine Tauber. Trom this time until January 1857, he had no occasion to enquire anything about the condition of. the estate of Hutch-ins, or that of John Tauber, and in fact knew nothing of either. That he purchased the land in January, and obtained a deed in March 1857; that he had paid all the purchase money but $1,622.59, which did not bear interest for some years, and his land is subject to the charge of $1,500 in favor of Keturah Tauber, to enforce which a suit was then pending, and this amounted to more than was due from him. That at the time of the conveyance to him he had no notice or knowledge of the existence of the claim set up in this case, and he is advised that the sale having been made by devisees bona fide, and there having been no suit begun for the administration of the assets of the estate of John Tauber, and no report having been filed of the debts and demands of those entitled under, chapter 132 of the Code of Virginia, however the devisees may be liable for the value of the land as assets of the estate, the estate conveyed is not liable, by express provisions of the act of Assembly, ch. 131, $5, of the Code; and he prays the full benefit of the statute.
    The sureties of John Tauber, and of Noah and *Thomas Tauber, answered, insisting that his estate was ample to pay anything he may have owed, and that it should be subjected to that object.
    In the progress of the cause accounts were ordered. Trom the commissioner’s reports it appeared that two of the four daughters of Thomas Hutchins had then been paid: there was due to Mrs. Helmick, on the 1st of June 1859, $1,371.87, of which $1,110.83 was principal, and there was due at the same date to Nancy Ann Alford $123.50, of which $100 was principal. Although Noah and Thomas Tauber had removed from the Commonwealth, and their vouchers had been lost, proof was taken which showed that the personal estate of John Tauber, which came to their hands, was appraised at $1,478.80; they had paid debts of the estate, which with their commissions thereon amounted to $4,249.44; and there were debts outstanding on the 1st November 1859, of $140.64, of which $103.86 was principal.
    The cause came on to be heard on the 29th of June 1859, when the court made a decree that Noah and Thomas Tauber, out of the .assets of their testator, and Wm. A. Bell and the other sureties of John Tauber, as adm’r, &c., of Thomas Hutchins, out of their own estate, should pay to the plaintiff, for the sole and separate use of Betsy Helmick, the sum of $1,371.87, with interest on $1,110.83, part thereof, from the 1st of June 1859, until paid; and to the plaintiff for the use of Nancy Ann Alford, to be paid to her when she attains the age of twenty-one years, or to her legally appointed guardian when one shall be appointed, the sum of $123.50, with interest on $100, part thereof, from the same date. And the cause was retained upon the docket for further proceedings as between the sureties of John Tauber, and at their costs, against the executors of John Tauber and their sureties, Thomas C. Burwell and the real and personal representatives of Catharine Tauber, who had died.
    *The cause came on again to be heard on the 11th of December 1860, when it appearing that Bell and his co-sureties had paid the sum of $1,569.78, in full of the former decree; and that the Heiskell farm had been sold under a previous decree; the court decreed that the legacy of $1,000 to Joseph Tauber should be first paid out of the proceeds of the sale, with the interest due thereon, and that the commissioner pay the residue of the proceeds of sale to the creditors of Catharine Tauber, according to their priorities. And it being suggested that the legacy to Keturah Tau-ber had been settled by Burwell, no decree was made as to that legacy; but it was decreed that Burwell should pay to Bell, &c., the amount they had paid under the former decree, with interest, and that he should also pay the outstanding debts of John Tauber reported by the commissioner. And unless he paid the same within ninety days from the date of the decree, commissioners were appointed to sell the land, &c. Bur-well thereupon obtained an appeal to the District court of appeals at Charlottesville ; where the decree was affirmed: and he having died, his executors obtained an appeal to this court.
    Baldwin and Young, for the appellants.
    Echols and Sheffey, for the appellees.
    
      
       Purchasers — Title Papers — Heans of Knowledge. — A purchaser must take care, and make due inquiries, or he may not be a bona fide purchaser. He is bound, not only by actual but by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of information and say that he is a bona Me purchaser without notice. For the above proposition the principal case is cited and approved in the following cases: Long v. Weller, 29 Gratt. 354, and foot-note; Justis v. English, 30 Gratt. 576; Armentront v. Gibbons, 30 Gratt. 651; Wood v. Krebbs, 30 Gratt. 714; Effinger v. Hall, 81 Va. 105; Tardy v. Creasy, 81 Va. 565; Wissler v. Craig, 80 Va. 32; Jameson v. Rixey, 94 Va. 348, 26 S. E. Rep. 861; Dugger v. Dugger, 84 Va. 142, 4 S. E. Rep. 171; Fidelity Co. v. Ry. Co., 32 W. Va. 271, 9 S. E. Rep. 190; Roanoke, etc., Co. v. Simmons (Va.). 20 S. E. Rep. 955; Williamson v. Jones, 43 W. Va. 575, 27 S. E. Rep. 416; Summers Creek Coal Co. v. Doran, 12 Sup. Ct. Rep. 246.
    
   MONCURE, P.

In the petition for the appeal in this case, but two errors are assigned, viz:

1st. That it was error to decree against John Tauber, or against his estate or his representatives, in favor of the administrator de bonis non of Thomas Hutchins, for any supposed failure to distribute administered assets in the hands of said Tau-ber as the first administrator.

2d. That Burwell as a purchaser in good faith from the devisees without notice of any outstanding debts of the estate, or unsatisfied claim upon the land purchased, *is fully protected by the statute in the Code, chap. 131, $ 5.

I regard the first assignment of error as waived by the learned counsel of the appellants ; and it was properly waived, for it is certainly unsustainable. Tor, although Baylor, as adm’r de bonis non with the will annexed of Hutchins, may not have a right, of himself, to maintain a suit against the representatives of his predecessor, for assets of the testator which that predecessor received and converted to his own use, according to the principle of the case of Wernick v. McMurdo, 5 Rand. 51; 2 Rob. Pr., old ed., p. 77; yet, as the legatees of Hutchins, who were entitled to maintain the suit, were parties thereto, and made no objection, and do not complain of the decree, which in fact was in their favor; the appellants, certainly, have no right to make any such objection or complaint on that ground. IÍ any authority were necessary to sustain so plain a proposition, the case of Morriss, adm’r v. Morriss’ adm’r, &c., 4 Gratt. 294, cited by the learned counsel of the appellees, would be full to that effect. I therefore proceed at once to notice the second, and only substantial, assignment of error in the case.

The Code, chap. 131, § 3, provides that ‘ ‘all real estate of any person who may hereafter die, as to which he ma3r die intestate, or which, though he die testate, shall not, by his will, be charged with, or devised subject to the payment of his debts, or which may remain after satisfying the debts with which it may be so charged, or subject to which it may be so devised, shall be assets for the payment of the decedent’s debts, and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied.”

2 4 provides, that “such assets, so far as they may be in the hands of the personal representative of the decedent, may be administered by the court, in the office whereof there is or may be filed, under the 132nd chapter, report of the accounts of such representative, and of the debts and demands against the decedent’s estate: or they may, in anj' case, be administered by a court of equity.”

I 5 provides, that “any heir or devisee who shall sell and convey any real estate which by this chapter is made assets, shall be liable to those entitled to be paid out of the said assets, for the value thereof, with interest; in such case the estate conveyed shall not be liable, if the conveyance was bona fide, and at the time of such conveyance no suit shall have been commenced for the administration of the said assets, nor any report have been filed as aforesaid of the debts and demands of those entitled. ’ ’

The “Home Place,” devised by the third clause of the will of John Pauber to his sons Noah and Thomas, charged with the payment of the legacies given by the fourth, fifth and sixth clauses of the will, being the land sold by the said devisees to Thomas C. Burwell, the intestate of the appellants, and the subject of controversy in this case, was not, by the said will, charged with the payment of the testator’s debts, and was therefore assets for the payment of said debts, under the third clause of chap. 131 of the Code, as aforesaid; and there was no suit pending for the administration of the said assets at the time of the conveyance of the said land by the said devisees to the said Burwell. The only questions arising' in the case, then, are, first, whether such convej'ance was bona fide; and, secondly, whether, at the time of such conveyance, any report had been filed as aforesaid of the debts and- demands of those entitled. I will enquire, first, whether such conveyance was bona fide.

When John Pauber died in August 18SS, he had an ample estate, real and personal, for the payment of all his debts, and then making a comfortable provision for his family. He had a small personal estate, not greater *in value than from one to two ' thousand dollars; but he had two tracts of land, both lying in the county of Augusta, where he lived and died, and where his will was recorded; one of them, called thé “Heiskell farm,” worth about $2,700; and the other, called the “Home Place,” worth about $7,000. His family consisted of a wife, Catharine Pau-ber, and four children, three of them sons and adults, to wit: Noah, Thomas and Joseph, and the other, a daughter, Keturah, who was an infant. Hike a just man and a good father, as he no doubt was, he, by his will, provided, in the first place, amply for the payment of all his debts, and then disposed of the residue of his estate among the members of his family, in such shares and proportions as he considered just and equal; and, as to some of the shares, subject to such trusts as the state of the owners of those shares seemed to him to require. After directing, by the first clause of his will, that his wife should select from all his household furniture such articles as she might choose, for the complete furnishing of a room for her and his daughter Keturah, such articles to be hers forever; by the second clause he provides amply for the payment of all his debts, by devoting to that purpose his Heiskell farm, and all his personal estate, other than the articles above given to his wife, directing any surplus which might remain after the payment of his debts, to be applied towards paying two of the legacies thereafter given by his will. The second clause is in these words: The judge sets out the second, third, fourth, fifth, sixth and seventh clauses of the will (see the statement of the case), and then proceeds:

Now it was the plain duty of the executors', under the second clause of the will, to sell the Heiskell farm and apply the proceeds to the payment of the debts, which were sufficient in amount to cover the value of said farm, after applying to their payment the proceeds of sale of the personal estate, also directed by the will tobe sold for *that purpose. And it was a plain breach of trust in the executors, to devote any part of the subject of that clause, or of the proceeds of the sale thereof, to the payment of legacies, or any other purpose than the payment of debts, until that express and main object of the clause was fully accomplished. The “Home Place” was not given by the will, exclusively and absolutely to the testator’s two sons, Noah and Thomas, but, in effect, was given to all his family, being almost the entire residue of his estate after the payment of his debts. The mode of giving it to all his family was, by giving it to his two sons, Noah and Thomas, equally to be divided between them, 'but to be charged in equal portions with the payment of the legacies given to the rest of the family. The interest of these two sons in this land, was only the surplus, after the payment of these legacies. If they should pay the legacies, the land would be absolutely theirs. But if they should not pay them, the land was subject to be sold under a decree of a court of chancery for their payment, and the surplus only, after such payment, belonged to the devisees. They could convey to a purchaser no greater interest in the land than they were themselves entitled, to. The full measure of their interest appeared upon the face of the will from which it was derived, and a purchaser from them was necessarily fixed with notice of the nature and extent of the interest acquired by the purchase. He could, in fact, be a purchaser only of that interest, and not of an absolute estate in the land freed and discharged from the legacies expressly charged by the will upon it. Instead of being a bona fide purchaser for value and without notice, of the land absolutely, he could not be a purchaser of it at all, but only of the interest of the devisees in it; that is the land subject to the charges expressly imposed upon it. The devisees, as executors, had no power to sell this land; and they could, therefore, as such, make no title to it to a purchaser, however bona fide, or for whatever value. They *could only sell it as de-visees, to the extent of the interest devised to them; and a purchaser from them must stand in their shoes, and hold it, as they held it, subject to the legacies charged thereon. Nothing less than satisfaction of those legacies to the legatees or their assigns, could relieve the land of the charge. Such was the state of the case, and such were the rights of the parties, when the transactions occurred out of which this litigation has arisen.

The law allowed to the executors one full year after their qualification, to enquire into and ascertain the condition of their testator’s estate, and the amount, nature and relative dignity of his debts, and to make preparation, by sales and collections, for payment of debts and legacies, preparatory to a final settlement of the affairs of the estate. Until the expiration of a year, they could be compelled to pay the debts of their testator only in their legal order of priority, and could not be compelled to pay any of the legacies. The executors in this case doubtless knew of the existence of all, or nearly all, of the debts of their testator, and that they would require for their payment all, or nearly all, of the subject devoted to that purpose by the second clause of the will. They certainly knew of the existence of the debt due by their testator to the estate and legatees of Thomas Hutch-ins, of whom he was administrator with the will annexed, which constitutes almost the entire amount for which the decree appealed from in this case was rendered. The account of John Fauber as such administrator, was settled by a commissioner of the County court of Augusta, about the time of said Fauber’s death, in August 1855 ;' and shortly after his death, to wit: on the 31st of January 1856, an order was made by said court, directing said commissioner to revise said settlement, which was accordingly revised; and the revised settlement was returned to the said court, and not being excepted to, was confirmed and ordered to be recorded *by the court, on the 27th of October 1856. This settlement showed the precise amount then due by the estate of John Fauber to the estate and legatees of Thomas Hutchins. A portion of this amount was afterwards paid by the executors of John Fauber, leaving due a large balance, which constitutes nearlj' the whole amount for which the decree appealed from was rendered as aforesaid.

On the 24th of April 1856, about eight months after the death of John Fauber, and with full knowledge of the existence of the said debt to Hutchins’ estate, and while, it seems, those to whom that debt was due were trying to collect it, the executors of ¡ John Fauber, to wit: Noah and Thomas [ Fauber, sold and conveyed the “Heiskell farm” to Catharine Fauber, widow of the said John Fauber, in consideration of $2,700, of which the sum of $1,200 was retained by her as an agreed satisfaction in gross of her annuity of $200 for life, under the will of her husband, the said John Fauber, and for the residue she executed her two single bill's, both dated that day, and carrying interest from date; one for $500, to the said Noah and Thomas H. Fauber, ex’ors of John Fauber, payable on demand; and the other for $1,000, to the said Noah and Thomas H. ex’ors of John Fauber, and trustees for Joseph Fauber and his family, payable twelve months after date. For these two bonds a lien was retained upon the land conveyed. And Catharine Fauber, for the consideration of $1,200 aforesaid, released to the said Noah and Thomas H., as ex’ors of John Fauber, and as devisees and legatees under his will, all her interest under the said will to the said annuity of $200 for life, and released the estate of said John Fauber from any charge for the same, and from all claim to dower or distribution. Catharine Fauber did not sign her own name to the deed, but merely made her mark; and says in her answer that she was an illiterate woman, knew nothing *of the debts due by her husband’s estate, and especially of the debt due by him to the estate of her father, the said Thomas Hutchins, and that she was deceived, and induced to make the arrangement embraced in the deed by representations made to her by her sons, the said Noah and Thomas H. Fauber. This deed was attested by Thomas C. Burwell. No doubt it was attested because of the fact that it was executed by one who could not sign her own name, but had to make her mark to it. This arrangement was no doubt made by Noah and Thomas H. Fauber for the purpose of disencumbering as much as possible the “Home Place,” devised to them, and enabling them to realize by a sale of it as large a price as possible. They contemplated by the arrangement to relieve the “Home Place” of two, of the three, legacies charged upon it by the will, being the larger part in amount or value, and the two which involved continuing, and, to some extent, troublesome trusts, leaving to be borne by the “Home Place,” only one of the three legacies, and that of a certain amount payable at a certain time, and unembarrassed by any trust.

Not long after that arrangement was made, to wit: on the 21st of January 1857, Thomas C. Burwell entered into a contract with Noah and Thomas H. Fauber for the purchase of the “Home Place,” at the sum of $7,000, payable as follows : The said Bur-well sold to said Noah and Thomas H. his entire stock of goods, &c., at cost and carriage, the amount to be ascertained by inventory. He was to pay $2,000 down in goods, at cost and carriage, and the remaining $5,000 in instalments of $1,000 annually, until paid, after deducting the remaining part of the stock of goods and accounts that said Burwell might transfer to the said Noah and Thomas H. from the 1st, 2d, and 3d payments of $1,000 annually, deducting' the interest therefrom.

Less than two months after the said contract was entered into, to wit: on the 10th of March 1857, a deed *was executed by Noah and Thomas H. Fauber and the wife . of the latter, conveying the said land to Burwell, in consideration of $5,377.41 in hand paid, and $1,622.59, secured by said Burwell’s obligation of that date, (the said two sums making together the sum of $7,000 aforesaid). The land is described in the deed as having been devised by the will of John Fauber to the said Noah and Thomas H., “subject to certain charges in the said will mentioned, as will more fully appear by reference thereto.” And the grantors by the said deed, “covenant that they will obtain from the Circuit court of Augusta, a decree exonerating said land entirely from the charges and incumbrances still binding upon it under the said will, such decree to be applied for at the next June term of said court,” and “that they will warrant generally the property,” thereby conveyed. It does not appear how the whole of the said sum of $5,377.41 was paid. The sum of $2,000 of it seems to have been paid down, in goods, at the time of the contract. But whether the residue of $3,377.41, or any part, and if any, what part of it, was paid also in goods, is not ascertained by the record. It does appear, however, by the contract, that a further payment in goods and accounts than the said sum of $2,000 was contemplated; indeed, that Burwell’s “entire stock of goods,” &c., whatever it might be, was purchased, and agreed to be taken, by Noah and Thomas H. Fauber, on account of the purchase money of the land. As to the balance of $1,622.59 mentioned in the deed, it seems to have been since applied by the purchaser to the payment of the legacy of Keturah Fauber, for which he says the amount was retained' in his. hands out of the said purchase money.

Noah and Thomas H. Fauber having thus disposed of the estate of their testator, left the Commonwealth, leaving unpaid the debts of their testator, which are the subject of ¡controversy in this suit. The amount of those debts has been decreed in this case to be paid out of the *land purchased by Burwell as aforesaid. And the question we now have to solve is, whether or not that decree is erroneous.

That Noah and Thomas H. Fauber, executors of John Fauber, were guilty of a plain and palpable breach of trust, in diverting the trust subject created by the second clause of their testator’s will, from the payment of his debts, to which it was devoted by the will, and applying it to the payment of legacies expressly charged by the will on land devised to them in their own right, is a matter beyond all controversy. And if that land had never been alienated by them; if the title in law and equity yet remained vested in them, as it was given to them by the will; nothing in law can, I suppose, be more certain, than that the said land would be now liable for the payment of the said debts yet remaining unpaid. The executors had a right, and it was their duty, to sell the “Heiskell farm” for the payment of their testator’s debts; and if they had sold the said land to a bona fide purchaser, and received from him the purchase money, he would not have been bound to see to its application ; and his title could not have been questioned, even though the money had been misapplied. But they had no right to apply that farm, or the proceeds of the sale of it, to the payment of legacies, charged upon the home place, at least until all the debts were paid; and if they sold the Heis-kell farm for the express purpose of paying the legacies instead of the debts, the right of-the creditors, in equity, to interpose and arrest the proceeds of sale before being applied to the payment of legacies, and have them applied to the payment of debts; or to be subrogated to the place of the legatees, and be paid out of the proceeds of sale of the home place, if those legatees had received payment out of the proceeds of sale of the Heiskell farm, rests upon the plainest. and best established principles of the law. Such would be the state of things, and such the ^relative rights of the parties, if Noah and Thomas H. Fauber had not aliened the home place.

But those devisees having sold and conveyed the land devised to them to Thomas C. Burwell as aforesaid, is he entitled to hold it against the claims of the creditors?

He claims to be so entitled as a bona fide purchaser.

Certainly a bona fide purchaser for value, and without notice, is a great favorite of a court of equity, and that court will not disarm such a purchaser of a legal advantage.

But we must not permit ourselves to be misled by words or maxims in this matter. Other persons are entitled to the protection and the favor of a court of equity as well as purchasers. Creditors are such persons, especially when they are, as sometimes, and in this case, in fact, they are or were,, infants, feme coverts and non-residents. Purchasers are bound to use a due degree of caution in making their purchases, or they will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law, and applies exclusively to a purchaser. He must take care, and make due enquiries, or he may not be a bona fide purchaser. He is bound, not only by actual, but also by constructive notice, which is the same in its effect as actual notice. He must look to the title papers under which he buys, and is charged with notice of all the facts appearing upon their face, or to the knowledge of which anything there appearing will conduct him. He has no right to shut his eyes or his ears to the inlet of information,, and then say he is a bona fide purchaser without notice. The law on this subject of constructive notice is laid down with great clearness by a very great judge, Vice Chancellor Wigram, in Jones v. Smith, 1 Hare R. 43, 55, 23 Eng.. Ch. R. cited by the learned counsel for the appellees. See also Le Neve v. Le Neye, and the notes thereto in second Leading Cases in Equity, Pt. 1, p. 23, marg. 127 top; and Brush v. Ware, &c., 15 Peters. U. S. R. 93-114; also cited by the *same counsel. In the case last cited, the Supreme court, in an opinion delivered by Mr. Justice McLean for the whole court, held, that “no principle is better established than that a purchaser must look to every part of the title which is essential to its validity. The law requires reasonable diligence in a purchaser to ascertain any defect of title. But when such defect is brought to his knowledge, no inconvenience will excuse him from the utmost scrutiny. He is a voluntary purchaser, and' having notice of a fact which casts doubt upon the validity of his title, are the rights of innocent persons to be prejudiced through his negligence?” Id. p. Ill, 112. “Why,” asked the court, “was not the defendant bound to search for the will? The answer given is, the distance was too great, and the place where the will could be found was not stated on the warrant, or on any of the other papers. That mere distance shall excuse enquiry in such a case, would be a new principle in the law of notice. ’ ’

That Burwell had actual notice of the will of John Pauber and its contents is perfectly certain. That he would necessarily have had constructive, if he had not .had actual notice of the same, is just as certain, That will was the source from which his title was derived; and he was bound to take notice of it and all its contents. He had constructive notice of every fact apparently affecting the title to the land, to which the will refers, and he was bound to enquire into such fact and fully inform himself on the subject. He had actual notice of the deed and its contents from John Pauber’s executors to Catharine Pauber conveying the Heiskell farm, not because he was an attesting witness to that deed, but because he relies on it in his defence, and must have known its contents. Knowing the contents of the will, he therefore knew that Hoah and Thomas H. Pauber held the home place subject to the legacies charged thereon by the will, and that in becoming a purchaser of that place from them, he acquired, and could acquire, only their ^interest in it; that is, the land subject to the : : charges imposed thereon by the will, just as it was held by his vendors. So that instead of being a bona fide purchaser of the land, he was not a purchaser of it at all free of those charges. In fact the deed to him for the land expressly describes it as subject to those charges. But it is said for him, that he was informed by the deed from John Pauber’s ex’ors to Catharine Pauber for the Heiskell farm, that two of the said charges, to wit: the legacy to her and the legacy to Joseph Pauber and family, were satisfied or secured by means of the sale of the Heiskell farm. How the second clause of the will of John Pauber, of which he had notice, expressly devoted : - , • . : : ' ■ : : L the Heiskell farm to the payment of the testator’s debts, and directs only any possibly remaining surplus of the proceeds of the sale thereof, after the payment of debts, to be applied towards the payment of the legacies given to Keturah, and Joseph and family (not including the legacy to Catha-rine Pauber). But Burwell says in his answer, that at the time of the conveyance of the home place to him, 1 ‘respondent had no notice or knowledge of the existence of the claim now asserted in this case;” and that prior to the purchase made by him, “he may have been, and probably was, aware of the fact, that John Pauber had been in his lifetime administrator or executor of Thomas Hutchins; but respondent certainly had no knowledge of the ' state of his accounts as such administrator or executor. After the death of the said John Pauber, and the qualification of his executors, the first knowledge which respondent had of any of their transactions was, that on or about the 24th day of April 1856, he was called upon to attest as a witness, a deed between the executors and the widow of the said Pauber, in relation to a sale of some of the real estate. That deed is .duly recorded in the County court of Augusta, and will show for itself. Prom this time until in January 1857, (when *he purchased the home place,) respondent had no occasion to enquire anything about the condition of the estate of Thomas Hutchins, or that of John Pauber, and, in fact, knew nothing of either.” How was not Burwell bound to inform himself on the subject, according to the best settled principles of the law, and were not the means of information readily accessible to him? I think so. Undoubtedly the pecuniary legatees had all of them a right to look to the home place for payment of their legacies, which remained charged thereon unless and until they were otherwise satisfied. The only satisfaction ever pretended' of any of them was, in regard to the legacies to Catharine Pauber and Joseph Fauber and family, provided for in the sale of the Heiskell farm as aforesaid. Whether that was a valid satisfaction or not, plainly depended upon whether the proceeds of the sale of the Heiskell farm were sufficient for their satisfaction, after paying all the debts of John Pauber, which by his will were primarily and expressly charged on said farm. How here the will, while it did not disclose in numero the amount of the testator’s debts, yet expressly refers toa subject vitally affecting the title of the devisees of the home place, into which subject the purchaser, Burwell, was bound to enquire. He had no right to shut his eyes and say: “I have no occasion to enquire anything about the condition of the estate of Thomas Hutchins, or that of John Pauber.” That was the very thing about which he had occasion to enquire. He was not bound to make the purchase. He could only be a Voluntary purchaser. And he could effectually guard himself against all danger, by making due enquiry. Is it not better that he should be required to do this, than that he should be permitted to shut his eyes, make the purchase blindly, and thereby involve in loss innocent creditors, who may be, as in fact in this case they were, infants, feme coverts and non-residents, and of course unable to take care of themselves? The authorities before referred *to decide that he was bound to make such enquiry. It was manifest from the will that the testator owed a large amount of debts, equal or nearly so, in his estimation, to the value of the Heiskell farm, and the personal estate subjected to their payment. And when his executors, in about eight months after his death, sold and conveyed that farm, not for the payment of his debts, but for the express purpose chiefly, of paying legacies expressly charged by the will on the home place devised to them subject to the charge, was not this a matter of which the purchaser of the home place, Burwell, had notice; and which should have led to further enquiry by him, according to the principle laid down by Wigram, V. C., as aforesaid? “Was it not a fact,” as the Supreme court said in Brush v. Ware, &c., before referred to, “essentially connected with the title purchased by the defendant, which should have put him upon enquiry. If it would do this it was notice; for whatever shall put a prudent man on enquiry is sufficient; and this rule is founded on sound-reason, as well as law. How can an individual claim as an innocent purchaser under such a circumstance?” 15 Peters. U. S. R. 93, 112. Burwell made no enquiry whatever. He did not even ask the executors ■ a single question on the subject. Nothing was easier than for him to have obtained the fullest information. The means of information were readily accessible, and right at hand. They were not, as in the case in 15 Peters., in a remote and uncertain place and in another State. They were of record in the very court in which the will under which he claimed title was recorded, and in the very county in which the land purchased by him was situated. On the 27th of October 1856, less than three months before he made the purchase, the settled account of John Fauber, as adm’r, with the will annexed of Thomas Hutchins, clearly showing almost the entire debt due by John Fauber’s estate, was ordered to be recorded by the County court of Augusta. When he *made that purchase the agent or attorney of those to whom that debt was due must have been actually engaged in an effort to collect it; for in the next month after the execution of the deed to Burwell for the home place, to wit: the 23d of April 1857, the bill in this suit was filed by Baylor as adm’r de bonis non, with the will annexed of Hutchins, for the recovery of that debt, in which bill the plaintiff sets out the means he had in vain used to collect it. The wonder is, not so much why Burwell did not inform himself of these facts by enquiry, as how he could have kept from knowing them. One word spoken to the executors would have brought to him a knowledge of them all; and yet he did not speak that word. The wonder is, how it happened that such knowledge did not reach him even without that spoken word. A question might, perhaps, be raised in this case, if it were necessary, whether the case does not come under both of the categories embraced in the principle as laid down by Wigram, V. C., as aforesaid; that is, whether, 1st, the purchaser, not only had constructive notice of facts to a knowledge of which he would have been led by an en-quiry into circumstances affecting the property of which he had actual notice; and whether, 2dly, he did not designedly abstain from enquiry for the very purpose of avoiding notice. It certainly, I think, comes under the former, which is enough for the purposes of the case. The latter alternative has been reluctantly applied by the court, as is said by the Vice Chancellor, and I would be indisposed to apply it in this case. My opinion rather is that Burwell instead of troubling himself to enquire into the affairs of John Fauber’s estate, and as to the amount of debts which it owed, chose to rely on the covenant of his vendors contained in the deed, to relieve the land purchased by him of the incumbrance of the legacies charged upon it, and to warrant the title generally against all claims and demands. The grantors expressly and specially covenant in the deed ‘1 that they will obtain *from the Circuit court of Augusta, a decree exonerating said land entirely from the charges and incum-brances still binding upon it under the said will, such decree to be applied for at the next June term of said court.” Such a decree was never obtained; and it does not appear that it was ever applied for. Bur-well was no doubt willing to run the risk of his vendors not complying with their covenant, for the sake of the advantages which he hoped to derive from his arrangement with them. And he ought not now to be permitted to shift the damages arising from the breach of that covenant, from his own shoulders to those of the creditors of John Fauber.

How then does the case stand upon the law and the facts as they seem to exist?

John Fauber owned two tracts of land, the Heiskell farm and the home place. He owed debts about equal in amount to the value of the Heiskell farm; and had a family consisting of a wife, three sons and a daughter. By his will he directed the Heis-kell farm to be sold, and the proceeds of sale applied to the payment of his debts; devised the home place to his two sons, Noah and Thomas, charged with the payment of legacies to his wife and other two children ; and appointed his sons, Noah and Thomas, his executors. In about eight months after his death, his executors sold and conveyed the Heiskell farm to his widow for $2,700, agreeing to apply $2,200 of the purchase money to the payment of two of the three legacies given by the will, to wit: the legacies to his wife and to his son Joseph; and the same has been accordingly so applied, leaving unpaid debts of the testator to about an equal amount. Shortly after the executors made that sale, they, as devisees, sold and conveyed the home place, devised to them, to Thomas C. Burwell for $7,000, a large portion of it payable in goods, and the vendors covenanting to relieve the land of the incumbrance of the legacies, and to obtain a decree for that purpose, and to warrant the title generally. At the *time of the sale and convej'ance to Burwell, he had notice, actual or constructive, that the two legacies to Catharine and Joseph Tauber were paid or provided for out of the proceeds of the sale of the Heiskell farm which had been devoted by the testator to the payment of his debts, and that the debts now claimed in this suit then remained unpaid. The unpaid creditors of John Tauber brought this suit to recover the amount due them from those who might be legally bound therefor upon the facts of the case. The court below first decreed the payment of them (except a' very small amount) by the sureties of John Tau-ber as administrator with the will annexed of Thomas Hutchins, deceased, on account of the administration of whose estate those debts (except as aforesaid) were due; and the said sureties, or two of them, having paid the amount, they claimed to recover it over against the party or subject ultimately bound therefor; and the court below gave them a decree against Burwell and the home place bought by him; and also gave a decree against the same for another small debt of the estate of John Tauber still remaining unpaid. Is that decree right? I think it is.

The legatees, or two of them, having received payment of their legacies out of the fund which belonged to the creditors, the latter had a clear and plain right to compel the former to refund the money, so far as it was necessary for the payment of the debts. And the legatees, being thus disappointed in obtaining satisfaction out of the fund which belonged to the creditors, would have as clear and plain a right to be reinstated in their charge upon the home place, and to be satisfied out of the same. But, to avoid circuity, a court of equity will sub-rogate the creditors to the place of the legatees, and give the former a direct decree against the home place. This is a simple process daily pursued in courts of equity.

The only possible difficulty in the case is at once removed when it is shown, as I think has conclusively *been done, that Burwell was not a bona fide purchaser without notice.

The release given by Catharine Tauber in the deed to her for the Heiskell farm can make no difference. The consideration for that release having wholly failed, it cannot stand in the way of her right to have satisfaction of her legacy out of the home place charged therewith by the will. The sum agreed to be paid to her in gross as compensation for her annuity for life, seems to have been considered a reasonable equivalent therefor, and no objection has been made to it from any quarter. Twelve hundred dollars may therefore be assumed as the amount or value of her legacy. At all events, that amount was paid out of the proceeds of the sale of the Heiskell farm on account of that legacy. As to the amount of the legacy of $1,000 to Joseph Tauber and family paid out of the proceeds of sale of the Heiskell farm by decree of the court below, there can be no possible doubt of the right of the creditors to a decree against the home place to the extent of that amount, which (including interest) is not greatly less than the whole amount of the unpaid debts. Joseph Tauber gave no release of his legacy, as Catharine Tauber did; and his legacy had not been actually paid out of the proceeds of the Heiskell farm when this suit was brought. It would have been an. easy matter, therefore, to have had that legacy charged upon the home place, leaving the money which he was to have received out of the Heiskell farm to be paid to the creditors. But the court having decreed the payment of the legacy to Joseph Tauber out of the proceeds of the Heiskell farm, the right of the creditors to subrogation and satisfaction to that extent out of the home place would have been self evident. There can be no doubt; however, for the reason before stated, that the right of the creditors to subrogation and satisfaction extends to the whole amount due them.

It may be proper to state that I think the record shows *that John Tauber’s executors are not indebted on account of his personal estate. Though no account was ever settled by them, so as to show that any thing, and if any thing, what amount is due them; yet it is sufficiently shown in the case that they owe nothing on that account, and there can therefore be no ground for making the sureties for their administration of their testator’s estate liable for an amount claimed in this case, or any part thereof.

My opinion upon the question, whether the conveyance of the home place to Burwell was bona fide, renders it unnecessary to consider the question, whether at the time of such conveyance, any report had been filed as aforesaid of the debts and demands of those entitled; and I therefore refrain from doing so.

Upon the whole, I am of opinion that there is no error 'in the decree appealed from, and that it ought to be affirmed.

STAPLES, J.,

dissented. He was of opinion the appellant Burwell could only be held responsible for the amount of the legacy given to Joseph Tauber and family. It is conceded that the creditors of John Tauber have no claim to or lien on the real estate in the possession of the appellant. If they have the right to subject it to the payment of their debts at all, it is only by subrogation to the rights of the legatees whose legacies have been satisfied out of the Heiskell farm. But Catharine Tauber, one of these legatees, released all claim to or interest in the whole and every part of the real, estate of the testator. The deed containing' this release was duly recorded, in order to give notice of the fact, and to enable the executors to convey a clear and unencumbered title to any -purchaser. The appellant, relying upon this release, purchased the home farm, paid the purchase money, received his deed of conveyance with the clear and full conviction that the annuity claim *of Catharine Fau-ber was fully satisfied, and her release valid and unimpeachable. And now it is insisted, that as she was mistaken, and received her annuity in a tract appropriated to the payment of the debts, she has the right, notwithstanding her release, to resort to appellant’s land for her indemnity.

It seems to me, to sustain such a pretension, is not only to violate every principle of natural justice, but also a favorite maxim of courts of equity, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and the loss. Catharine Fauber having released her claim, she has no equity to which the creditors can be subrogated. These views, however, have no application to the legacy given to Joseph Fauber. That, having been paid from the Heisltell farm, without, however, the execution of any release, the creditors have the right to be compensated to that extent out of the home farm; and for the residue of their debt they should be satisfied from the proceeds of the sale of the Heiskell farm in the possession of both or one of Fauber’s representatives.

In my opinion the decree of the Circuit court should be reversed so far as it is in conflict with these views.

Decree affirmed.  