
    Beverley v. Brooke and Others. Same v. Pickett and Others.
    
    November, 1830.
    (Absent Brooke, P.)
    "Mortgage — Usury—Witness—Mortgagor—Case at Bar. —A. mortgages land to B. to secure debt due him, and then mortgages same land to C. to secure debts, first to C. then to other favored creditors, and then to all creditors; and, in a suit in chancery, between B. the first mortgagee, and A. the mortgagor, C. the second mortgagee and the creditors claiming under the second mortgage, B. claims priority under the first mortgage, and his claim is contested by C. and those claiming under the second mortgage, on the ground that the first mortgage is usurious: Held, that A. the mortgagor, is interested in the event of the suit, and not a competent witness for his co-parties against B. to prove the usury.
    Same — Same—Same—Same- Disclaimer of Interest— Efiect. — And though A. the mortgagor, after executing the second mortgage, having been arrested under a ca. sa. had been discharged as an insolvent debtor, upon surrendering all his effects, which had been sold for a sum less than the debt for which he had been taken in execution; and though A. therefore, in his answer to the bill of B. the first mortgagee, disclaimed all interest in this controversy between his creditors; and though B. put in no replication to this answer; yet held, that tbis disclaimer of interest did not restore A.’s competency as a witness for his co-parties to prove the usury against B. since he could not by such disclaimer exempt himself from liability to any personal decree to which B. might be entitled against him either for debt or costs.
    ^Depositions — Competency of Witnesses — Right to Object — Case at Bar. — A.’s deposition was taken by C. the second mortgagee and those claiming under him, under a special commission awarded by the chancellor to take the deposition subject to all just exceptions; and B. the first mortgagee, prayed and obtained a like special commission to take A.’s deposition, but did not act under his commission; Held, that B. by obtaining this special commission himself, was not precluded from objecting to the competency of the deposition taken under C.’s commission.
    Same — Same—No Exception in Lower Court — Appellate Practice. — When the deposition of a party in a suit in chancery is taken under a special commission, subject to all just exceptions, whether the deposition be excepted against on the ground of incompetency or not, it behoves the court to examine and decide the question of competency; and though the deposition be read at the hearing in the court of chancery, without exception, yet if. on an appeal from the decree, the appellate court finds the deposition incompetent evidence by reason of the deponent’s interest in the event, it will pay no regard to the deposition.
    
      Deeds of Trust — Notice to Trustees of Prior Unrecorded Trust Deed on Same Subject — Effect.—C. takes a mortgage from A. to secure inst debts; and is informed immediately before the mortgage is executed, that A. has mortgaged the same subject to B. to secure a debt due him, but that the debt to B. is usurious; which mortgage to B. is not duly recorded: Hhld, that 0. and all claiming under the mortgage to him. are purchasers with notice of the prior unrecorded mortgage to B and that the contemporary information that the prior mortgage was usurious, does not affect the question of notice oj the prior mortgage.
    Judgment — Alienation of Land Subject to — Liability of Alienees.  — A judgment is obtained against a debtor; and then the debtor aliens his lands to divers alienees by divers conveyances; Held, all the debtor’s lands, in the hands of his several alienees, are alike liable to the judgment creditor, and the lands in the hands of the several alienees must contribute pro rata to satisfy the judgment.
    James English obtained a judgment in the circuit court of Fauquier, at September term 1819, awarding execution on a forfeited forthcoming bond, against George Pickett and Steptoe Pickett, and F. W. Brooke their surety in the forthcoming bond. Steptoe Pickett was also a suretj7" of George, having become bound for this debt, by the original judgment for the same as his appearance bail. Farther proceedings on the judgment were stayed by injunction awarded by the court of chancery of Fred-ericksburg, in December 1819; and, after a long controversy, the injunction was dissolved in part, and perpetuated as to the residue, by a decree of the chancellor in May 1826, from which decree an appeal was taken to this court, and the appeal was still pending.
    *George Pickett, by deed dated the 10th June 1818, reciting, that he was indebted to Peter Beverley, by note of the same date, in the sum of 6200 dollars, payable in two years, conveyed 500 acres of land in Fauquier, to T. T. Mason, upon trust, in default of due payment, to sell the subject, and pay the debt to Beverley out of the proceeds. And the day after the date of the deed, Pickett, at the instance of Peter Beverley, addressed the following letter to Robert Beverley: “Alexandria, June 11th 1818. Mr. Robert Beverley, I am indebted to Mr. Peter Beverley the sum of 6200 dollars, ' payable in twTo years, for which I have given him my note payable in the bank of Alexandria, and a deed of trust upon my lands to secure the same; and as he is indebted to you and about to transfer the note to you, I now inform you, that I will punctually pay it when it becomes due. I am &c. (signed) G. Pickett. ” The debt was assigned by Peter Beverley to Robert Beverley.
    The deed of trust was acknowledged by Pickett and Mason the trustee, before two justices of Fairfax, three several times; first, 014 the 11th June 1818; again, on the 17th December following; and last, on the 20th August 1819. The certificates of the first two acknowledgments were very informal: and the last was without a caption, in these words: “We, G. T. and R. R. magistrates of the county of Fairfax, certify, that G. Pickett and T. T. Mason, parties to the within conveyance, have duly acknowledged the same before us, on the 20th day of August in the year 1819, and desired us to certify the said acknowledgment to the clerk of the county of Fauquier, in order that the said conveyance may be recorded. Witness our hands and seals.” [Signed and sealed bjr the justices.] The deed, with this certificate of the acknowledgment of it, was lodged with the clerk of Fauquier, to be recorded, on the Sth May 1820 (after the date of English’s judgment) and the clerk indorsed a memorandum on it, that it was received in the office on that day; but it was not admitted to record till the 25th December 1822. The delay was explained *by the clerk; who deposed, that on the 5th May 1820, he received a letter from Mason, the trustee, inclosing the deed to him, and requesting him to record it, and to charge the deed for doing so to Peter Beverley; to which he answered, that he would not record the deed upon the credit of Peter Beverley for the fee, but if Mason, or any other person he could confide in, would undertake to pa3r the fee, he would immediately record it: that he, thereupon, made the memorandum of the date when he received the deed, and kept it, first among his own private papers, and afterwards among the unrecorded deeds in his office, until the 25th December 1822, when, being assured of the fee by an agent of Robert Beverley, the assignee, he committed it to record.
    George Pickett, by deed dated the 3d May 1820, which was the next day duly recorded in the county court of Fauquier, conveyed the same 500 acres of land, together with sundry other real and personal estate, to John Scott, upon trust, to make sale of the whole subject, at such times and on such terms as best he could, and out of the proceeds, 1st, to discharge all sums of money for which Scott himself was then or might afterwards be bound for, on account of Pickett; 2dly, such of Pickett’s debts as any other person was bound for, as his surety; 3dly, such other of Pickett’s debts as Scott should prefer; and lastly, all his other debts. And, by another deed, dated the 22d January 1821, duly recorded the same day, he conveyed the same subject (more accurately specified and described) and some other property, to Scott, upon the same trusts.
    After the execution and registry of both the deeds of trust to Scott, Getty Ball recovered a judgment against George Pickett, and sued out a ca. sa. thereupon; and Pickett being arrested upon it, in September 1821, surrendered his effects, took the oath of insolvency, and was discharged as an insolvent debtor. In the schedule which he rendered of his effects, he mentioned his equity of redemption of the property conveyed to Scott by the deed of the 22d January *1821, and he assigned that apd all the other property mentioned in the schedule to the sheriff, by a formal deed of assignment: (though without such a deed, all his rights of property would have been vested in the sheriff, by force of the statute, 1 Rev. Code, ch. 134, 1 34, p. 538). And the sheriff sold and conveyed the property contained in Pickett’s schedule and deed of assignment thereof to him, to F. W. Brooke.
    And, after George Pickett’s insolvency, and surrender of his effects, under the ca. sa. sued out by Getty Ball against him, namely, in September 1822, John Gaird recovered a judgment against him and Steptoe Pickett his surety. In April 1823, Gaird had an entry made on the record book, that he elected to charge the goods, and chattels and a moiety of the lands of the debtors, upon his judgment. And in November 1823, he assigned this judgment' to F. W. Brooke.
    There arose out of these transactions, three suits in the superiour court of chancery of Fredericksburg.
    I. Jacob Weaver exhibited his bill against Scott, the trustee in the deeds of trust of May 1820, and January 1821, George Pickett, Peter Beverley, and T. T. Mason, the trustee in the deed of trust of June 1818, securing the debt due to Beverley; setting forth, that he was a creditor of George Pickett; claiming, that the debt due him should be charged on the trust subject conveyed to Scott by the deeds of May 1820 and January 1821; and praying, that Scott should be ordered to execute the trust, to sell the trust subject, and to apply the proceeds to the satisfaction of Pickett’s creditors, according to the provisions of those deeds: charging, that the deed of trust of June 1818, executed to Mason to secure the debt to Beverley, had never been duly recorded ; and that the debt thereby secured to Beverley was usurious, and Pickett had in fact paid the whole or the greater part of the money really advanced to him, with legal interest: and insisting, therefore, that this *deed should not be allowed to stand in the way of the conveyances made of the same subject, by Pickett to Scott, for the benefit of his just creditors.
    II. F. W. Brooke and Steptoe Pickett exhibited their bill against George Pickett, Peter Beverley and T. T. Mason his trustee, and Robert Beverley his assignee, John Gaird and James English; setting forth, that they were the sureties for George Pickett for the debt due to English; and insisting, that English’s judgment had unquestionable priority to the deed of trust executed by George Pickett to Mason to secure the debt due to Beverley, and they, the sureties for the debt due to English, had a right to be substituted in his place for the benefit of the lien of his judgment on Pickett’s lands: setting forth also, the judgment recovered by Getty Ball against George Pickett, the ca. sa. sued out upon the same, the arrest of Pickett upon that process, his surrender of his effects, and discharge as an insolvent, and the sale and conveyance of the effects surrendered, by the sheriff to Brooke; and the judgment recovered by John Gaird against George Pickett, and the assignment thereof by Gaird to Brooke: charging, that the debt to Peter Beverley, to secure which George Pickett’s deed of trust to Mason of June 1818 was executed, was usurious; that Peter Beverley was from the first only nominally the creditor, having lent the money secured by the deed of trust, as the agent of Robert Beverley, who supplied him with the funds to be lent out at usurious interest; and that George Pickett’s letter to Robert Beverley of the 11th June 1818, was, dictated by Peter, and designed to place Robert, though in fact the real creditor, in the ostensible situation of an assignee, induced to take an assignment of the debt by the promise of the debtor to make punctual payment to him; a.nd that, whether this debt was usurious or not, Brooke, being the assignee of all the effects of George Pickett mentioned in his schedule and surrendered to the sheriff, upon his discharge as an insolvent under Letty '"'Ball’s ca. sa. and being the assignee of Laird’s judgment, acquired rights under both assignments, preferable to Beverley’s claim and the deed of trust securing it, because both Ball’s ca. sa. and Laird’s judgment were prior in date to the registry of the deed of trust under which Beverley claimed.
    Robert Beverley stated in his answer that Peter Beverley, having become justly and fairly indebted to him, to an amount larger than the debt due from George Pickett to Peter, offered to assign this debt to him in part satisfaction, and he -was induced to take the assignment of it, by the assurances contained in Pickett’s letter to him of the 11th June 1818, that the debt was justly due, was amply secured by deed of trust on Pickett’s land,and would be punctually paid : that Peter Beverley was not his (Robert’s) agent in the transactions with Pickett, out of which this debt arose; that he (Robert) was no wise concerned or acquainted with those transactions, and in particular, did not know or suspect, that the time he took the assignment, and did not now know, that the debt was usurious or otherwise illegal ; and that, as he was neither party to the alleged usury, if usury there was, nor had any notice of it, and had been induced to take the assignment by the assurances contained in the letter above mentioned, he ought not, in case the fact of usury should be established, to be held liable to the consequences. And, as to the registry of the deed of trust under which he claimed, he said, he had been informed, that it had been lodged with the clerk to be recorded, and never knew that it had not been in fact recorded, immediately upon its being so lodged with the clerk, till long after the debt secured by it had fallen due.
    As against Mason and Peter Beverley who were not inhabitants of Virginia, and failed to appear and answer, the bill was taken for confessed. The defendants English and Laird put in answers ; but they had no interest in the controversy contrary to those of the plaintiffs.
    *111. Robert Beverley exhibited his bill against George Pickett, Scott, the trustee in the deeds of trust of May 1820 and January 1821, Peter Beverley and T. T. Mason; and afterwards, an amended bill, making English, Laird, Steptoe Pickett and Brooke, parties defendants. He set forth all the facts touching the assignment by Peter Beverley to him, of George Pickett’s debt to Peter, stated in his answer to the bill of Brooke and Steptoe Pickett, and, particularly, Pickett’s letter to him of the 11th June 1818, by the assurances contained in which, he alleged, he was induced to take the assignment of the debt; and all the facts touching the; registry of the deed of trust of June 1818, under which he claimed; alleging, that it was duly acknowledged by the parties before the justices of Fairfax in August 1819, and lodged with the clerk to be recorded on the 5th May 1820, and that it was the clerk’s fault or neglect that it was not then recorded; but whether it was duly and timely recorded or not, was, he insisted, wholly immaterial; for he charged, that Scott, before the execution of George Pickett’s first deed of trust to him, that of the 3d May 1820, had notice *o the execution of the prior deed of June 1818 securing the debt to Beverley; and the defendant Laird, or Brooke as his assignee, claimed under the deeds of trust to Scott, and had obtained a decree for satisfaction of Laird’s judgment out of the trust subject in Scott’s hands, according to the provisions of those deeds. And the bill prayed a discovery from Scott, whether he had such notice or not, and how and when ; and that the trustee in the deed of June 1818, or some other person to be appointed by the court, should be directed to sell the trust subject thereby mortgaged, and to apply the proceeds to the satisfaction of the debt to Beverley; and general relief.
    George Pickett answered, that since the execution of the several deeds of trust in the bill mentioned, he had taken the oath of insolvency, and surrendered all his interest in the subject, which interest had been sold by the sheriff for the benefit of the creditor at whose suit he 'was in execution, *for a sum not more than sufficient to discharge the debt due that creditor: and, therefore, he disclaimed all interest in the matter in controversy in this cause.
    Scott, in his answer, admitted that, after the' first deed of trust to him of the 3d May 1820 was prepared, and when Pickett had taken the pen in his hand to execute it, he observed to Scott, that he had borrowed money of Peter Beverley at twelve per centum per annum, and had given him a mortgage of part of his land to secure the payment of about 6000 dollars. Scott also stated, that he was jointly concerned with Brooke, in the assignment of Laird’s judgment; and that Steptoe Pickett was surety for George to Laird.
    Brooke, in his answer, also stated that Scott was jointly concerned with him in the assignment of Laird’s judgment, and that Steptoe Pickett was surety for George to Laird; and he admitted, that the debt due to Laird was secured by the deeds of trust to Scott, and that the assignees thereof had claimed under those deeds, and obtained a decree for satisfaction out of the trust subject thereby conveyed, which as yet, however, had proved unproductive.
    Steptoe Pickett, insisted in his answer, that being a surety for George Pickett to Laird, he had a right to demand that George Pickett’s property conveyed by the deed of trust to Scott, should be applied in discharge of that debt, so as to relieve him from his liability as surety for the same, and that he, as surety to Laird, was entitled to be substituted to every advantage to which Laird was entitled.
    
      Laird also answered. As against the defendants, Peter Beverley, Mason, and English, the bills were regularly taken for confessed. ,
    The plaintiff put in a general replication to all the answers, except that of George Pickett, to which there was no replication.
    The circumstances attending the delivery of the deed of trust of June 1818, under which Beverley claimed, to the clerk of Eauquier to be recorded, and his reasons for not ^recording it till the 25th December 1822, were proved by the deposition of the clerk. They have been already fully stated.
    The defendant Scott was examined as a witness, as to his notice of the deed of June 1818, before the execution of the deed of May 1820 to him; and he deposed substantially as he had answered, that, after the deed of May 1820 had been drawn, and when Pickett was about to sign it, Pickett told him, he had borrowed a sum of money of Peter Beverley at twelve per cent, interest, and had given a mortgage on part of the land included in the deed to Scott.
    Upon the question, whether George Pickett’s debt of-6200 dollars to Peter Beverley which was secured by the deed of trust of June 1818, and assigned by Peter to Robert Beverley, was usurious, there were many circumstances in proof; but the principal evidence, that, indeed, without which the charge of usury could not be established, was the deposition of the defendant George Pickett, which stated the fact and the particulars of the usury, very positively and explicitly. The question was as to the competency of his evidence; and the circumstances under which it was taken, and read at the hearing, were supposed to affect the question. They were these: the defend- ■ ant Scott moved for and obtained a special commission to examine and take the deposition of Pickett, to be read at the hearing, saving all just exceptions. And, after-wards, Beverley himself moved for and obtained a like commission to examine Pickett. But Beverley never proceeded under his commission. The deposition was taken by the other parties, under the commission awarded on Scott’s motion. When the deposition was returned, Beverley’s counsel- indorsed an exception to it, upon the envelope containing it, to the following effect: that he excepted to the reading of the deposition, taken, as it was, under a special commission subject to all just exceptions, on the ground, that the deponent was a party in the suits, and directly in-terested in the event. But the counsel did not sign this exception; and, for aught that appeared, the *court was not apprised of it, or called upon to examine and decide upon it, so that the deposition was read at the hearing,. without any exception presented to the court, or known to the parties who adduced and relied upon the evidence.
    In the case of Weaver v. Scott and others, the chancellor, reserving for future consideration all questions as to the validity of the deed of trust of ' June 1818, under which Beverley claimed, the registry thereof, and the charge of usury in the debt which that deed was executed to secure, directed Scott | to sell all the trust subject comprised in the two deeds of trust to him of May 1820 and January 1821; and, an account having been taken of the debts chargeable on this fund according to the provisions of these two deeds, and Scott having made sales of the trust subject in pursuance of the decree, and made report thereof to the court, the chancellor decreed the payment of the proceeds to the creditors claiming under the deeds to Scott including Laird and his assignees, in the order provided by those deeds.
    And afterwards, in the two cases of E. W. Brooke and Steptoe Pickett v. George Pickett, Beverley and others, and Robert Beverley v. ■ George Pickett, Scott and others, the chancellor declared, that the deed of trust of George Pickett to Mason of June 1818, securing the debt to Beverley, was not a recorded deed within the meaning of the statute of conveyances (1 Rev. Code, ch. 99, fj 4, p. 362,) until the 25th December 1822, when it appeared by the certificate of the clerk of Eauquier, to have been admitted to record ; and that the plaintiff Robert Beverley, claiming under that deed to charge the land thereby mortgaged, must be postponed to the judgment creditors of George Pickett, whose liens attached before the deed was recorded; that Beverley, however, if'he elected to do so, might come in under the deeds of trust of May 1820 and January 1821, for satisfaction out of the trust subject, according to the provisions of these deeds, and that, if he failed to get satisfaction *out of that fund, he was entitled to a personal decree against George Pickett, for such portion of the debt secured by the deed of trust of June 1818, as might remain unsatisfied. And he decreed and ordered, that the marshal of the court should sell the 500 acres of land mortgaged by the deed of June 1818, and that, out of the proceeds of sale, he should pay Brooke, assignee of Laird, 4754 dollars with interest from the 1st July 1826 till paid, (being the balance due upon Laird’s judgment against George Pickett and Steptoe Pickett his surety) and the costs of the suit of Brooke and Pickett v. Pickett, Beverley and others; and that the marshal should deposit the residue <_,f the proceeds in bank, subject to the future order of the court.
    Beverley appealed to this court.
    The cause was argued here, by Johnson for the appellant, and Stanard for the ap-pellees.
    L Johnson said, the first question was, whether George Pickett’s debt to Peter Beverley, assigned to Robert Beverlej7, the appellant, to secure which the deed of trust of June 1818 was executed, was usurious or not? The chancellor, considering. the charge of usury not proved, had decided against the preference claimed by Beverley under that deed, upon other grounds; but the effort to establish the usury, might and no doubt would be repeated here. He said, there was no other evidence of the usury but the deposition of George Pickett; so that the point depended upon the question of his competency.- He contended, that Pickett was not a competent witness. Eor he was a party to the suits, liable, in case the usury was not established, and Beverley should succeed in charging his debt on the land, either under his own mortgage or under the deeds to Scott, to a personal decree for so much of the debt as the trust fund should fall short of satisfying ; and exempt from such liability, if Beverley’s claim was condemned as usurious : liable, certainly, to a decree for costs, if Beverley should succeed; x’and entitled to costs if Beverley should fail: and, therefore, interested to defeat him. But, if the evidence could be held competent, and the usury as between Peter Beverley and Pickett should be thereby established, Pickett, after his letter to Robert Beverley, of the 11th June 1818, whereby he induced him to take an assignment of the debt, as a fair debt, amply secured, which would be punctually paid, could not be allowed to set up the defence of usury against Robert Beverley; neither, therefore, could Scott, who claimed under Pickett the equity of redemption, and stood in Pickett’s shoes, nor Baird or his assignee Brooke, who claimed under the deeds of trust to Scott, nor any other creditors of Pickett claiming under those deeds, avail themselves of the objection of usury, as against Robert Beverley, the innocent as-signee of the usurer, misled and deluded by the debtor.
    Slanard said, that Pickett’s deposition related to the question of usury put in issue by the pleadings in Weaver’s suit, and in that brought by Brooke and Steptoe Pickett, (the first and second suits above mentioned) and it was only in the third suit, upon the bill exhibited by Beverley, that Beverley could be entitled to a personal decree against Pickett, the deponent. Now, in this suit, George Pickett’s answer to Beverley’s bill, disclaimed all interest in the controversy; and to this answer, containing this explicit disclaimer, there was no replication: Pickett, then, was discharged from the cause. Accordingly, Beverley as well as Scott, asked a special commission to take Pickett’s deposition: after that, neither party could be heard to object to his competency. And the deposition was, in fact, read at the hearing without objection; for the exception indorsed by Beverley’s counsel, on the envelope which contained the deposition, not even signed by the counsel, never presented to the chancellor, or intimated to the other parties, indorsed on a paper which neither the court nor the parties would ever think of examining, could not be regarded as an exception at all. The deposition established the usury as against *Peter Beverley. As to Pickett’s letter to Robert Beverley, of the 11th June 1818, he went into a minute examination of the evidence, and endeavoured to shew, that in the transactions between Peter Beverley and Pickett, Peter was Robert’s agent, lending Robert’s money to Pickett; and that that letter, so far from being regarded as an inducement held out by Pickett to Robert Beverley, to take the assignment of the debt, and thus precluding Pickett, and those standing in his place, from relying on the usury, was a contrivance which manifested the consciousness of the usury practised, and was a strong presumptive proof of the usury.
    Johnson replied,
    that Pickett could not disclaim his interest in the controversy: he could not disclaim his personal liability to Beverley for the debt he owed him, or for the costs of suit. That the want of a replication to his answer, was immaterial; for there was nothing in the answer, which it was necessary to deny by replication. That, so far from Pickett having been discharged from the cause, it was set for hearing, and heard, as to him as well as the other parties. That, though Beverley had asked a commission to take Pickett’s deposition, he had never proceeded under the commission. That, as to the deposition being read at the hearing without exception: if it was not enough, in all cases, to file such an exception among the papers in the cause (as he thought it was) ; yet this deposition was taken under a special commission, expressly saving all just exceptions ; in other words, the court itself, in giving the authority to take the deposition, reserved the question of competency for its future consideration, and was bound to examine and decide it: and, besides, he doubted, whether it was necessary for a partjq against whom a deposition of a witness, plainly incompetent upon the face of the record, is adduced, to file a formal exception to it, in order to avail himself of the objection to its competency: such exceptions were properly applicable to cases of irregularities in the taking of depositions, such as the want of notice and the like, and *were required in order to save the party adducing them, from being surprised by the objection. The question whether Peter Beverley, in his transactions with Pickett, was the agent of Robert, was a question of fact; and he insisted, that there was no evidence which could justify the court in assuming the fact of the alleged agency.
    II. Johnson insisted, that the deed of June 1818, under which Beverley claimed, ought to be considered as a recorded deed upon and from the Sth May 1820, when it was “lodged with the clerk to be recorded, ” according to the express provision of the statute, 1 Rev. Code, ch. 99, \ 4. It was immaterial, whether it was actually recorded or not, or what was the clerk’s motive or reason or failing to commit it to record immediately. But the point, he said, was of no consequence in this cause; or Scott had actual notice of the mortgage to Beverley, prior to the execution of the first deed of trust to him of the 3d May 1820; and, therefore, Beverley’s mortgage, supposing it was never recorded, was good against Scott, and all persons claiming under the deeds of trust to him. Then, the state of the claims of the creditors, as to their priorities, stood thus: English’s judgment was prior to Beverley’s mortgage; but as he had claimed under the deeds of trust to Scott, over which Beverley’s mortgage had priority, he could not avail himself of the previous lien of his judgment, to insist on the priority which that would otherwise have given him over Beverley’s mortgage; or, if he was entitled to stand on the previous lien of the judgment, his claim ought to be charged on that part of Pickett’s lands which were not mortgaged to Beverley, but were, after-wards conveyed in .trust to Scott. And either way, Beverley would be entitled to the benefit of the whole subject mortgaged to him. Scott, and the creditors claiming under the deeds of trust to him, were entitled to the equity of redemption to the land mortgaged to Beverley, and to the other trust subject comprised in those deeds. As to Betty Ball’s judgment and the ca. sa. xwhich she sued out upon it, Pickett’s surrender of his effects and discharge as an insolvent debtor, being subsequent to the execution of the deeds of trust to Scott, nothing but Pickett’s equity of redemption of the subject comprised in those deeds, was surrendered to the sheriff for her benefit, and the sheriff could convey to Brooke no other interest in the lands in question. And Baird’s judgment being subsequent to Pickett’s discharge as an insolvent debtor, which vested all his rights of property in the sheriff for the benefit of the creditor at whose suit he was in execution, there was literally nothing on which the lien of that judgment could attach: Baird, and his assignee, could only claim under the deeds of trust to Scott.
    Stanard denied, that the mortgage to Beverley could be regarded as a recorded deed at all: he said, the certificate of the acknowledgment of it by the parties, was fatally defective: for the justices of Fair-fax, who certified that the deed was acknowledged before them, had no jurisdiction or authority for any such act, out of their county; and their certificate did not state, that the acknowledgment of the deed was taken by them in their county; nor was there even a caption to the certificate, referring the act to the county of Fairfax. And as to Scott’s notice of the mortgage to Beverley, he remarked, that the notice given him of the existence of that deed, was accompanied by .information, in the same breath, that it was usurious, and in effect void: and he endeavoured to maintain, that such a notice could not affect Scott, or the rights of those claiming under him.
    
      
      For sequel of principal case, see Beverley v. Brooke, 4 Gratt. 187. In this case the principal case is cited at pages 188, 216, 217, 218, 231, 233, 234.
    
    
      
      Depositions — Competency of Witnesses— Objection First Made in Appellate Court — Virginia Rule. — An exception to the deposition of a party to a suit on the ground of incompetency, though not brought to the notice of the court at the hearing, otherwise than by the exception, maybe passed upon by thatcourt; and, whether so passed upon or not, it may be passed upon by the appellate court, and the deposition be either read or excluded in the decision of the case by that court as may be proper. Statham v. Ferguson, 25 Gratt. 38, citing principal case. See, in accord, Fant v. Miller, 17 Gratt. 227, 228, citing principal case.
      But, in Hord v. Colbert, 28 Gratt. 54, 55, objection was made to the deposition of Joseph W. Colbert, a defendant in the cause, on the ground of his incompetency to testify. But the exception was not made until after he had been cross-examined at great length upon all the issues involved, and the whole examination was concluded, although the party making the exception was aware of if as well before as after the cross-examination was commenced and concluded. The attention of the court below seems not to have been called to the objection. The question was raised in the appellate court whether the objection had not been waived by this manner of proceeding. Judge Staples, who delivered the opinion of the court, said: “It is sufficient for the purposes of this case to say, that when the party cross-examines upon the issues involved, with a knowledge of the interest of the witness, he will not be permitted afterwards to make the objection. Having made the objection however in due season, he may then proceed to cross-examine without prejudice to his right to move to suppress the deposition at the hearing. Jacobs v. Laybom, 11 Mees. & Welsby R. 684; Moorhousev. De Passon, 19 Ves. R. 432; Harrison v. Courtauld, 5 Eng. Ch. R. 428; Donelson v. Taylor, 8 Pick. R. 390; Graves v. Graves, 2 Paige R. 62, 3 Paige 240, 554; 1 Payne C. C. R. 400; 1 Phillip on Evidence 789.
      “It may be said that the rule here stated has no application to parties examined as witnesses. Under the former practice, in the chancery courts of this state, when a special commission was issued to take the deposition of a party, saving all just exceptions, the duty devolved on the court to take notice ex officio of objections to the competency of the witness arising from his interest in the event of the cause. And in such a case an appellate court will consider and decide upon the question of competency, although the deposition may have been read in the court below witboutobjection. Such was the decision in Beverley v. Brooke & als., 2 Leigh 425. The court was of opinion there that the question would have presented more difficulty had the deposition been taken under a general commission. (See principal case cited to the same effect in Fant v. Miller, 17 Gratt. 227, 228.)
      “Whatever may have been the distinction formerly between parties and other witnesses, that distinction has been entirely abrogated by the statute, which declares that no witness shall be incompetent to testify because of interest; and in all actions, suits, and other proceedings of a civil nature, at law or in equity, the parties thereto shall, if otherwise competent to testify, and subject to the rules of evidence, and of practice applicable to other witnesses, be competent to give evidence. Code of 1873, p. 1109. Under this provision it is very clear the rule in respect to objections for incompetency on the ground of interest is equally applicable to parties examined as a witness as to those who are not parties. For these reasons I am of the opinion, if there was any valid objection to the testimony of Joseph W. Colbert, that objection has been waived, and he must now be treated as a competent witness.”
      And, in Simmons v. Simmons, 33 Gratt. 460, objection was made in the appellate court to the competency as witnesses of certain persons whose depositions had been received as evidence in the cause. In replying to the objection, Judge Burks. speaking for the court, said: “It would seem to be a sufficient answer to this objection, that it does not appear that it was first made in the court below. Notwithstanding some expressions in decided cases, which seem to concede that objections to the testimony of a witness on the ground of his incompetency may be properly made in this court although not made, or considered, or passed upon in the court below, we are of opinion, that such objections, unless first made in the court below, cannot be relied on here, for the reason that if allowed, parties might be taken by surprise. If made in the court of original jurisdiction: First. The incompetency might in some cases be removed by release or otherwise; Second. If not removed and the witness be excluded, the loss of his testimony might perhaps be supplied by other evidence. See what was said by Judge Moncure in Fant v. Miller & Mayhew, 17 Gratt. 187. Also Beverley v. Brooke als., 2 Leigh 425; Hord’s Adm’r v. Colbert & als., 28 Gratt. 49, 54, 55, 56; Statham v. Ferguson’s Adm’r & als. 25Gratt. 28, 38.” This seems now the settled law in Virginia. See McVeigh v. Chamberlain, 94 Va. 73, 26 S. E. Rep. 395.
      
        See principal case also cited in Cheatham v. Cheatham, 81 Va. 403.
      See further, foot-note to Fant v. Miller, 17 Gratt. 387; foot-note to Statham v. Ferguson, 25 Gratt. 28; foot-note to Burkholder v. Ludlam, 30 Gratt. 255; note by Judge Burks to Simmons v. Simmons, 33 Gratt. 460; monographicon “Depositions” appended to Field v. Brown, 24 Gratt. 74; 1 Bart. Ch. Pr. (2d Ed.) 794 et seq.
      
      Same — Same—Same—West Virginia Rule. — The West Virginia cases seem to adhere to the rule that objection may be made to a deposition, on the ground of the incompetency of the witness, for the first time in the appellate court.
      In Middleton v. White, 5 W. Va. 574, it was held that an exception to a deposition on the ground of incompetency ol the witness is not waived by not being insisted on in the court below. The princi-2>al case and Fant v. Miller, 17 Gratt. 187, are cited to sustain the position.
      Again, in Rose v. Brown, 11 W. Va. 122, 133. it was held that an objection to a deposition on the ground of the incompetency of the witness, would be considered in the appellate court, although the objection be made there for the first time. See, in accord. Hill v. Proctor, 10 W. Va. 59: Vanscoy v. Stinchcomb, 29 W. Va. 263, 271, 11 S. E. Rep. 927, 930; foot-note to Fant v. Miller, 17 Gratt. 188. containing an extract on this point from Vanscoy v. Stinch comb, 29 W. Va. 263, 271, 11 S. E. Rep. 927, 930.
    
    
      
      Deeds of Trust-Notice to Trustee — Effect upon Beneficiary. — (Though the conveyances in the principal case are spoken of in the headnotes as mortgages, the facts of the case show that in realty they were deeds of trust. This is also true of the case of Conrad v. Harrison, 3 Heigh 532, cited below.)
      It is a well settled principle of law, especially in Virginia and West Virginia, that notice to a trustee. is notice to a cestui que trust. Fidelity, etc., Co. v. Shenandoah, etc., R. Co., 32 W. Va. 259, 9 S. E. Rep. 185; foot-note to French v. Loyal, 5 Leigh 627; Eubank v. Kirk, 1 Va. Dec. 256; Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. Rep. 351, all citing principal case.
      Deed of Trust Creditor — Purchaser,—It is well settled that a creditor taking a deed of trust on real estate to secure his debt is a purchaser within the purview of the act relating to registration oi conveyances. Johnston v. Slater, 11 Gratt. 325, 326, citing principal case and Tate v. Liggat, 2 Leigh 81. For other cases in accord, see foot-note to Evans v. Greenhow, 15 Gratt. 153.
    
    
      
      Judgment - Alienation of Land Subject to — Liability of Alienees. — In Conrad v. Harrison, 3 Leigh 532, a debtor mortgaged certain lands to three different creditors successively to secure debts due them. It was held that the third mortgagee could not call on the second mortgagee to contribute pro rata to the satisfaction of the debt due the first mortgagee. The proposition affirmed in the principal case, that where “a judgment is recovered against a debtor, and the debtor aliens his lands to divers alienees and by divers conveyances, all the debtor’s lands, in the hands of his several alienees, are alike liable to the judgment creditor, and the lands in the hands of several alienees must contribute pro rata to satisfy the judgment,” was doubted, but held not applicable to the case at bar. Judges Cabell and Tucker (pp. 541, 546) distinguished the principal case from the case at bar on the ground that the principal case was not a case of subsequent incumbrances after a prior mortgage, but after a prior judgment. Judge Caer, while he concurred in the opinion of the court in each case, said that he could not reconcile them, but that in each he decided as he thought right.
      But later cases review the decision in the principal case on this point and expressly overrule It, or refer to it. as overruled. And the rule established in both Virginia and West Virginia now is. that where land which is subject to a lien of a judgment, or other incumbrances, is aliened to different purchasers by successive alienations, it is chargeable in the hands of the purchasers in the inverse order of alienation, indeed the principal case seems to be the only Virginia case that ever field otherwise. See, citing- principal case, McClung v. Beirne, 10 Leigh 394, 402, 403, 405 (in this case, Staxard, J., in his dissenting- opinion thong-fit the decision of the principal case ought to be conformed to), and foot-note; Michaux v. Brown, 10 Gratt. 624; Alley v. Rogers, 19 Gratt. 367, 389, and foot-note; Jones v. Phelan, 20 Gratt. 241, 242, 213; W. Va. Code 1899. ch. 139, §8; Va. Code 1849, ch. 186, §10, p. 709; Va. Code 1887, § 3575.
      See also, foot-note to Rodgers v. McCluer, 4 Gratt. 81; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425; monographic note on “Marshaling Assets” appended to Carrington v. Didier, 8 Gratt. 260.
      Same — Lien—Suing out Elegit — See the principal case cited in Taylor v. Spindle, 2 Gratt. 69.
    
   GREEN, ,J.

The. first inquiry in these cases is, whether Beverley’s demand is tainted and destroyed by usury? And this depends upon the question as to the competency of George Pickett as a witness. If he is competent, the proof of usury is full and complete, and the question as to the effect of his letter to Beverley of the 11th June 1818, would arise. If he is not a competent witness, the other evidence *in the cause, though sufficient to excite strong suspicions, does not amount to satisfactory proof of usury.

Pickett, if Beverley’s claim was valid to any purpose, was his debtor, and a party defendant in his suit, under such circumstances, that if the claim to satisfaction, in whole or in part, out of the land, either under the deed to Mason or under those to Scott, were established, Pickett would have been liable to a personal decree for any balance not satisfied out of the land, and for the costs. . But if, on the other hand, Beverley’s claim to satisfaction out of the land were repudiated, then, even though Pickett might be still personally responsible in consequence of his letter, Beverley’s bill must have been dismissed with costs as, to Pickett, as well as to the other defendants, since the only ground of jurisdiction against Pickett, was the plaintiff’s right to subject the land. In respect to the' costs, therefore, at least, he had a direct interest in the event of the cause, depending upon the very point to which he testified. His evidence must, consequently, be rejected, unless the course taken by Beverley has sanctioned it.

His bill did not ask any specific relief against Pickett, particularly; but it prayed general relief; and that was sufficient to' found any decree against any of the parties, which the state of the case at the hearing would justify. Pickett answered, that having surrendered all his interest in the land upon taking the benefit of the insolvent debtor’s law, and the sheriff having sold that interest, for a sum not more than sufficient to satisfy the execution under which he surrendered, he had no longer any interest in the property, and he, therefore, disclaimed all interest in the subject of controversy; that is, between the other parties, as to the land. But he did not, and could not disclaim his interest in his own personal liability. Beverley put in no replication to this disclaimer; and that, it was argued, - put Pickett out of court as a party. That may be a just rule, when the answer, followed by a disclaimer, is such as, if true, would shew that the party could have no interest in the decree-in any event, and the plaintiff admits it to be true by failing to *reply to it. But, in this case, the answer being true, there could be no occasion to traverse it; and yet it shewed, upon its face, that the defendant had still an interest in the cause, and was liable to a personal decree, if the plaintiff was properly in court in respect to the land.

After the answer and disclaimer of Pickett were filed, Beverley procured an order for a special commission to take his deposition, subject to all just exceptions at the hearing. But he never took out and acted on the commission. The deposition was taken under a commission awarded by a special order to the same effect, made at the instance of the defendant Scott. The circumstance of Beverley having asked for a commission, cannot, in reason, preclude him from objecting to the competence of the witness; and no authority was cited in support of that proposition.

Finally, though there was an indorsement on the envelope of the deposition, in the hand writing of Beverley’s counsel that he excepted to the reading of the deposition (particularly describing it) on account of the witness’s interest in the event of the cause; yet it was not signed by the counsel, nor does it appear that the attention of the court was called to the exception, or that the court decided upon it. This frequently occurs in the records which come to this court, and as to depositions taken under general commissions, presents serious difficulty. But that difficulty does not exist in the case of a special commission, saving in terms, all just exceptions for the consideration o± the court ,at the hearing; and, consequently, devolving on the court the duty to take notice, ex officio, of objections to the competency of the witness, arising from his interest in the event of that very cause; a question which cannot be affected by any collateral proofs.

Upon the whole, I think that Pickett’s deposition should be rejected. And the chancellor seems to have disregarded it.

According to the views that have occurred to me, in respect to the priorities of the several parties claiming satisfaction of their debts out of the property in question, it is wholly immaterial whether the deed of trust to Mason under *which Beverley claims, be considered as a deed admitted to record on the 5th May 1820, or the 25th December 1822, or as remaining an unrecorded deed to this day. I4o judgment creditors of Pickett appear, except one, who had his judgment before the 5th May 1820, and before Pickett’s first deed to Scott, (namely, James English) and such as obtained their judgments after the execution of both the deeds to Scott, viz. Letty Ball and John Laird.

As to the first, English’s judgment, it overreaches all those deeds, and operated as a lien on all the debtor’s lands, which has not in any degree been impaired. He, and the sureties of Pickett to him, have been guilty of no laches or other act to impair its force. The judgment was rendered in September 1819, and injoined in January 1820. The injunction was perpetuated in pari, and dissolved in part, in May 1826, and an appeal taken from the decree, which, as far as appears, is still depending. Nor has English received any thing under the deeds to Scott; nor does he appear to have been privy or consenting to them. A sum has been retained in the case of Weaver v. Pickett and others, on account of his claim, subject to the future order of the court. If he had claimed under the deeds to Scott, that would not have barred him of his election to resort to his original security, the lien of the judg-ment, if at any time before the final disposition of the fund, he had found it to be his interest to do so. Cod wise v. Galston, 10 Johns. Rep. 517. It was, however, insisted on the part of Beverley, that no part of this debt should be charged upon the lands conveyed to Mason; because, before Pickett conveyed the residue of his lands to Scott, if that residue had been extended, Pickett could not have claimed contribution from the lands conveyed to Mason, whom he was bound to indemnify; and, in equity, the residue of the lands should, in that case, be applied to the satisfaction of the judgment in exoneration of those conveyed to Mason. And this is certainly true, for neither a debtor nor his heir can claim contribution in such a case against the alienee of a part of the land bound by the judgment. *Erom this it was argued, 1 that Scott, the second alienee, and those claiming under the deeds to him, should stand in Pickett’s shoes in that respect, and that residue first subjected to the satisfaction of the judgment, as far as it will go, in exoneration of the land conveyed to Mason. Upon this subject, the law is perfectly settled. All the alienees of the lands of a debtor bound by a judgment or recognizance, no matter in what order the alienations were made, are bound to bear equally the burden of satisfying the judgment, b3* mutual contributions, pro rata, according to the value of the property held by them ; all being considered as in asquali jure, without regard to the priority of their purchases or conveyances. Authorities for this doctrine are referred to in 5 Vin. Abr. Contribution and Average, A. pi. 3, 4, 6, 7, 12, 19, p. 561, 2; Herbert’s case, 3 Rep. 12. There is no pretence for calling upon Pickett’s sureties, against whom the judgment was also rendered, for contribution. If there was such a right at law, equity would control it, by substituting the surety to the lien of the judgment upon the land of the principal debtor, no matter in whose hands it was. This, however, was not claimed. This judgment should be satisfied out of the proceeds of the lands conveyed by Pickett to Scott had already sold, and that in controversy, pro rata, in proportion to the neat amount of the sales thereof respectively. But if, in the case of Weaver v. Pickett, the proceeds of the land sold have been so disposed of as that that portion of English’s judgment which ought to be paid out of that fund, cannot now be fully satisfied out of it (a question which cannot be examined here) still the land remaining unsold can only be charged with its due proportion, to be ascertained as aforesaid.

Letty Ball’s judgment being subsequent to the execution and recording of both of the deeds to Scott, operated as a lien, not upon the land in question, the legal title to which, as to her, was vested in Scott, but upon Pickett’s equity of redemption, or his interest in the surplus, if any, of the fund conveyed to Scott, after satisfying all the purposes of the *deeds to him; that is, after paying all Pickett’s debts, including that to Beverley, in the order specified in the deeds. The execution of the ca. sa. destroyed this lien, and the discharge of Pickett under the insolvent laws, vested his equity of redemption, or interest in that surplus, if any, in the sheriff for her benefit; and that again was vested in Brooke by the conveyance of the sheriff. The proceedings under the ca. sa. also vested in the sheriff, for the benefit of the creditor, all the property of the debtor conveyed by him by any conveyance made void by the statute of frauds and perjuries, as being in fraud of creditors, or by the statute of conveyances, as not being duly recorded ; as was held in the case of Shirley v. Long, 6 Rand. 735. So that, if there had been no conveyance by Pickett of the land in question, other than that to Mason, and that were unrecorded at the time of the execution of the ca. sa. the legal title would have passed to the sheriff, and from him to Brooke, in opposition to that deed. But there was another unimpeached and duly recorded deed, providing for the payment of Beverley’s debt, which, putting the deed to Mason out of the case, as if it had never been made, would give Beverley a preference over Brooke, claiming not under the deed to Scot!, but only as a purchaser of the title of the sheriff under Pickett’s schedule and surrender of his effects.

Laird’s judgment being subsequent to the ca. sa. and the proceedings under it, operated as a lien upon nothing; for Pickett then had. no scintilla of interest, legal or equitable, in any thing, real or personal; the sheriff having sold all his interests, for a sum not more than sufficient to satisfy the execution under which he was taken, and thus annihilated even his interest in any surplus which might arise from the sale of his mortgaged property. If there had been a surplus, Laird’s judgment would have operated as a lien upon that: but there was none. Laird, therefore, can claim nothing, but as a creditor under the deeds of trust to Scott, without any aid from his judgment, which gives no additional strength to that claim. And his claim stands precisely as it would, if he had not obtained judgment.

^Allowing the preference to Eng-lish’s judgment to the extent stated, the question arises between Beverley and those claiming only under the deeds to Scott, including Laird, as to the order in which the residue, after satisfying Eng-lish’s judgment, shall be applied; whether according to the terms prescribed by the deeds to Scott, putting Beverley in the last class of creditors to be satisfied, upon the ground, that the deed he claims under is void as to all Pickett’s creditors claiming under the deeds to Scott, because not recorded; or to the satisfaction of Beverley’s claim in preference to the creditors claiming under the deeds to Scott, upon the ground that it was in fact recorded before those deeds were executed, or that Scott, and consequently, those claiming under him, had notice of the deed to Mason, before the first deed to Scott was executed? I have already' said, that it is unnecessary to any purpose in this cause, to decide whether the deed to Mason ought to be considered as a deed admitted to record on the Sth May 1820, or on the 25th December 1822, or remains a deed not duly recorded to this day; and I mean to give no opinion on that point. It is, in every view, unimportant; because the first deed to Scott, conveying the property in question, was executed and admitted to record, before the deed to Mason was delivered to the clerk; and the second deed to Scott does not impair the force of the first, for it is upon the same trusts precisely, and differs from it only in specifying the property conveyed more particularly, and conveying other property. So that those claiming under the first deed to Scott, would have an unquestionable priority to Beverley, unless Scott took that conveyance, as well as the last, with such a notice of the existence of the deed to Mason, as made it good against him, and all claiming any benefit under the deeds to him.

Such a notice I think he had: he was explicitly informed, that a deed for a part of the land was given to secure a debt to Peter Beverley, and, at the same time, that the debt was usurious. This notice made the deed as valid against him, at all claiming under the deeds to him, as if it had been *duly recorded, liable to be impeached for usury, as it would have been if recorded, and no otherwise. It had the same effect, as a notice of the existence of the deed, with a declaration by Pickett that he had paid the debt, would have had; and that surely could not have been considered as, per se, without any other proof of payment, destroying the effect of the notice of the existence of the deed.

Upon the whole, the land conveyed by the deed to Mason should be sold under the direction of the court of chancery; the just proportion charged upon it in favour of English’s judgment, and applied towards the satisfaction thereof, in the first place; and then the proceeds applied to the debt secured to Beverley, and the costs of his suit; and the surplus, if any, distributed according to the order prescribed in the deeds to Scott.

The other judges concurred, and the decree was reversed with costs.  