
    William McCorkle and others vs. Green B. Montgomery, Jr., and others.
    
      Fraud — Judgment—Father and Son — Consideration—Evidence — Vendor’s Lien.
    
    Where there are strong circumstances of suspicion against a judgment confessed by a son to his father, the father, on bill filed by creditors impeaching the judgment for want of consideration, should show the consideration by other evidence,than his own oath.
    Where a judgment is set aside for fraud and want of consideration, and a reference is ordered for creditors to come in and prove their demands, evidence taken before the commissioner on the reference will not be considered by the Court of Appeals on the appeal from the decree.
    The doctrine, that the vendor has an equitable lien for the purchase money of land sold, has never, it seems, prevailed in this State.
    BEFORE WARDLAW, OH., AT CHESTER, JUNE, 1358.
    This case will be sufficiently understood from the Circuit decree of his Honor, Chancellor Wardlaw, the grounds of appeal, and the opinion delivered in the Court of Appeals.
    The Circuit decree is as follows:
    Wardlaw, Ch. The plaintiffs on record are creditors by decree of Green B. Montgomery, Jr., and they filed this bill May 23, 1853, in behalf of themselves and other creditors, to set aside certain judgments, conveyances and assignments, which obstruct satisfaction of their decree.
    In June, 1836, John Guntharp became guardian of the plaintiffs, and for the faithful performance of his office, gave bond, with G. B. Montgomery, Jr., and A. E. Guntharp as his sureties. In June, 1850, this guardianship was revoked, and proceedings were ordered by this Court to be instituted on the bond. Accordingly, a bill was soon after filed. And in June, 1852, a decree was pronounced in favor of the plaintiffs against the said G. B. Montgomery, Jr., for divers large sums of money. To execute this decree, a fi.fa. was issued, which has been returned by the sheriff, nulla bona. Before the decree, John Gnntharp had died, utterly insolvent, and A. E. Guntharp had died, so much embarrassed in his affairs that, on a bill filed by his administrator to call in the creditors and marshal the assets of the estate, although there has not been yet a final adjustment, it has been ascertained that not more than one-half of the sum of specialty debts can be satisfied out of the assets.
    In the fall of 1849, G. B. Montgomery, Jr., bargained with Geo. Doag for the Pickett Mills and thirty acres of surrounding land, and November 16, 1849, procured a conveyance of the same to be made to his son, James B. Montgomery, by the said Doag, at the price of $3,500. The day before the conveyance, G. B. Montgomery, Jr., paid to David McDowell, who was the grantor and mortgagee of Doag, in money, $466 34; and James B. and G. B. Montgomery, Jr., and' Jonathan B. Mickle, executed their single bill to McDowell for $833 64, which is still unpaid. At the time of conveyance, G. B. Montgomery, Jr., paid to Doag, in cash, $2,200— the balance of the purchase money. About a week after-wards, G. B. Montgomery, Jr., bargained with William T. Nichols for twenty-one acres adjoining the mills, for $230 66, paid him $40, or more, by discount, and having with his son, James B., secured the balance, (which was paid July" 1, 1852,) procured the conveyance to be made to the said Jas. B. About Christmas, 1S49, G. B. Montgomery, Jr., with his family, of which the said James B. is an inmate, removed to the mills, and has resided there ever since.' He carried with him the remaining merchandise from a country store, and retailed it there. After the removal, a costly dwelling was erected on the premises, expensive repairs made to the mills, and much valuable machinery purchased. Towards these' improvements, G. B. Montgomery, Jr., mainly contributed by-his money and credit and the labor of himself and slaves, and he always exercised the principal control and management of affairs at the mills — so that to all who were unacquainted with the state of the legal title, he seemed to be the owner. The accounts, however, were kept in the name of James B. Montgomery, and he was commonly the organ in paying and receiving money; and he sometimes superintended the saw-mill, and sometimes worked in a harness shop at the place.
    June 21, 1851, G. B. Montgomery, Jr., confessed two judgments to his father, G. B. Montgomery, Sr.; one for $2,514, and the other for $1,605 ; a judgment to his mother-in-law, Nancy Bailey, for $1,189 33 ; and a judgment to his son-in-law, Jonathan B. Mickle, for $522 34. About this time, J. B. Mickle obtained assignments of two other judgments against G. B. Montgomery, Jr., namely, of Robert Ford for $571 14, and of Samuel G. Barkley, for $786. All these judgments bear interest, and from various dates.
    June 11, 1852, G. B. Montgomery .executed an assignment of his whole estate and credits to J. B. Mickle, in trust, to sell and collect the same, and from the proceeds to pay, first: the expense for preparing the deed and the commissions of the assignee and his expenses about any suits in collecting the assets and effecting the trust; secondly: thejudgments above mentioned and any others of the same creditors, and a judgment of William Montgomery for $200; thirdly: demands of certain enumerated creditors, not in judgment, to the sum of $2,622 ; fourthly : the demands of all other creditors ; and lastly, the surplus, if any, to the assignor.
    July 1, 1852, J. B. Mickle, the assignee, sold the visible property of the assignor for the aggregate sum, according to the addition in the exhibit, of $6,586 27 — according to my addition, of $5,997 27. Some items may be omitted from the copy of sales furnished to me. James B. Montgomery is set down as the purchaser of the negroes Terry, Molly and child, Billy, Jim and Sam, at the aggregate price of $2,625, and of household furniture and other articles, $265 50; G. B. Montgomery, Sr., is set down as the purchaser of Henry Harry, Aaron, Gill and George, for $2,142; G. B. Win. Montgomery, of Tom, for $590; J. B. Mickle, of Dick, $245, and other articles for $50; and the sum of the purchases of all other persons is $79 77. The assignee has received very little of the amount of sales.
    The object of the bill is to set aside for fraud the conveyances to James B.Montgomery; the confessions of judgment by G. B. Montgomery, Jr., to his kinsmen aforesaid; the assignment of the judgments of Ford & Barklay to Mickle, the assignment of G. B. Montgomery, Jr.’s estate to Mickle; and the sale under this assignment.
    The bill is taken pro confesso against Nancy Bailey. The defendants, G. B. Montgomery, Sr., and Jr., James B. Montgomery, G. B. Wm. Montgomery and J. B. Mickle, have answered separately; and they severally deny all fraud in their acts as to the matters of the suit, and make statements intended to exhibit the fairness of their conduct; but, with some exception as to J. B. Mickle, they rely entirely upon their answers, and offer no other proof of their defences.
    
      First, as to the conveyances by Doag & Nichols to James B. Montgomery. The plaintiffs charge that the moneys for the purchase and improvement of the lands conveyed were furnished by G. B. Montgomery, Jr., and that he procured the conveyances to be made to his son, a minor without means, in pursuance of an express purpose of fraud to defeat the plaintiffs. As to this express purpose to defeat the plaintiffs, the evidence may have some bearing on various points of the case. G. B. M., Jr., in his answer, states that he has no recollection of having said that he never would pay the plaintiffs, but avows his motive to postpone his liability as surety to debts for which he had received consideration. Robert Ford testifies that this defendant said, befpre removing to the mills, that he never intended to pay the McCorkle bond, and would sooner rot in jail: Joseph Arledge testifies that the defendant said he would not pay the McCorlde liability if he could help it, and Daniel McCullough testifies that the defendant said he could not or would not pay the McCorlde debt. As to the payment made for the mills in money, G. B. Montgomery, Jr., and his son, James B. Montgomery, in their answers, distinctly aver that in the negotiation for the land and in the payment for it, the father acted merely as agent for the son, and that the son furnished the money. They admit that the son did not attain twenty-one years until August, 1S50, nine months after the conveyance, but they say that by agreement between them the son was entitled to the earnings of his labor after he was twenty years of age, and that he had made some money in a harness shop, and had acquired a horse and two mules by advantageous trades of a mare given to him by his grand-father, G. B. M., Sr.; that in fact James B. paid $166 34 from his own earnings, and $2,500 “furnished or loaned” by his said grand-father: of all this detail there is no proof. G. B. M., Sr., in his answer, says nothing on the subject; and whether he was able to advance such sum of money, or, as was said on the other side, was embarrassed in his affairs, I do not know from the evidence.
    The plaintiffs, however, have proved that two mules were purchased by G. B. M., Jr., from Houston, in August, 1849, for $250, and were afterwards sold by this defendant to Mathews. They have further proved the admissions of this defendant that he had used of the funds of Westbrook’s estate, of which he was administrator, towards the cash payments for the mills, $1,400 according to the testimony of Robert Ford, or $1,428, according to the testimony of W. T. Nichols, and this is confirmed by the testimony of Houston, that $1,000 were paid to the defendant as administrator on November 6, 1849, and that the debts of the estate were left in arrear by the administrator, particularly one to Sibley, upon which he said he would pay interest. Besides this, it is in evidence that he borrowed from various persons several sums of money, shortly before the conveyance of Doag, with the avowed purpose of paying for the mills, namely: $300 from Robert Ford, $100 from Andrew McDaniel, $475 from Joseph Arledge, and $270 from Robert C. Bailey. These loans, with the sum of Westbrook’s estate used for the purpose, closely approximate the sums paid to -McDowell and Doag.
    For the land conveyed by Nichols, by the confession of the defendants, $40, at least, were paid by the father, but defendants allege, without proof, that this was repaid by the son. The balance of the purchase money was not paid to Nichols until the assigned chattels were sold by Mickle, July 1, 1S52. The plaintiffs charge that this balance and the sums paid for the erection of the mansion, the repairs of the mills, and for machinery, were paid by Green B. Montgomery, Jr., and they show that large sums of money were received by him in 1849, 1S50 and 1851, from the proceeds of a tannery and a store conducted by him, and from the sale of a tract of land to Arledge for $1,700, and of the tannery. G. B. Montgomery, in his answer, admits the receipt of money to a large amount, but alleges, without proof, the disbursement of it in payment of other of his debts.
    The substance of the answer of James B. Montgomery in this respect is, that all these payments were made from the profits of the mills of which he was owner; in effect, that his title to both tracts is dependent on the fairness of his purchase from Doag. The plaintiffs, however, show that G. B. Montgomery, Jr., sometimes employed the proceeds of the mills in discharge of his own liabilities; that he bought a circular saw from Aiken for $300, giving his own note, with Gayden as surety, which he afterwards paid; that he repeatedly said he had bought the mills, that he sought counsel whether a conveyance to a minor was good; instructed the deeds to be made to his son, but became responsible himself for the purchase money. The defendants endeavor to excuse the employment of G. B. Montgomery, Jr., and his slaves, in the repair and management of the mills, on the ground that such services were but a reasonable compensation to James B. Montgomery for the maintenance of his father’s family and the education of the infant children; but not a tittle of evidence supports this, strange allegation, that an unmarried, infrafamiliated youth had suddenly become the head of his father’s family.
    The statement of these transactions involves all the argument uecessary. G. B. Montgomery, Jr., paid for the lands, and took and retained possession of them as proprietor, and procured titles to be made to his infant son, with the avowed purpose of defeating certain of his creditors. It is a palpable case of fraudulent collusion between father and son. The conveyance to James B. Montgomery must be can-celled, and the title to the lots declared to be vested in G. B. Montgomery, Jr.
    The parties have entered into an agreement concerning the sale of these lots; which, I suppose, has been executed. If not, it is ordered that the commissioner proceed to sell said lands, according to the terms of said agreement, and the practice of the Court.
    
      Secondly, as to the confessions of judgment by G. B. Montgomery, Jr. All of these confessions were on the same day, all to his kindred, and all, so far as appears, by the mere act of this defendant alone, without the presence or solicitation of the plaintiffs on the records. They profess to be based on notes given at or about the time; but, as the defendants allege, were, in fact, given to secure debts of the confessing defendant of a date long anterior.
    The judgment of Nancy Bailey, beyond dispute, cannot stand in the way of creditors. She makes no defence by pleading or evidence. The statement in the answer of G. B. Montgomery, Jr., concerning the consideration of this judgment, (which statement, however, if it were of any value, would not be evidence for Mrs. Bailey,) is, substantially, that Robert C. Bailey, son, and Andrew McDaniel, and himself, sons-in-law of Nancy Bailey, agreed, with her consent, to divide equally between them, a tract of land belonging to her, or the proceeds of it, reserving her use of the land for life, and in the result, the son and other son-in-law paid this defendant the estimated value of his third in remainder; and that the judgment was given to secure the principal sum so paid or advanced, with interest. Conceding the absolute truth of this statement, no debt to Mrs. Bailey grew out of the circumstances. Robert C. Bailey and Andrew McDaniel state that they took the land of Mrs. Bailey by her consent, about fall, 1846, and agreed to pay, and did pay, $500 each, to Montgomery and wife, for their interest in the land, and received their release of all claim in the land; no conveyance nor obligation was executed by Mrs. Bailey. It is manifest that this judgment is without consideration, and that it must be put out of the way of creditors. It is proper to state that Mrs. Bailey is enfeebled by age, and that, in all probability, she did not actively co-operate in any fraud of her son-in-law.
    In relation to the judgments of G. B. Montgomery, Sr., he and his son state, in their answers, that the indebtedness of the latter arose from loans of money, by the former, between 1841 and 1851, and the sale of some small amounts of bacon, and other articles; and they file, with their answers, separate exhibits of the particulars of loan and sale, and of the notes given and received. These exhibits agree precisely in items sufficient to cover the amount of the judgments, but the exhibit of the father contains additional particulars of indebtedness to him by the son, swelling the aggregate "much beyond the sum of the confessions, and the exhibit of the son contains some particulars of credit not set down in the other exhibit, but not to such extent as to reduce his indebtedness below the amount of the judgments. These defendants rest upon their answers, and offer no evidence. I infer, from the discrepancy of the exhibits and the failure to produce any of the notes, or other evidences of debt, that there was no account stated between thq parties at the time of the confession, and that the judgments were, at least, taken for conjectural sums. On the other hand, the assailing evidence of the plaintiffs does not directly disprove the consideration of the judgments, and stops with showing general circumstances of suspicion, particularly the kindred of the parties, the confession after the institution of the suit in equity upon the guardianship bond, the determination of the debtor to delay or defeat satisfaction of his debt to plaintiffs, and the fraud of the debtor about the Pickett Mills, and his confession to Mrs. Bailey cotemporaneous with the judgments in question. It may be that no special consequence follows from the kindred of the parties. A father has the same right as a stranger to save his just claims, if he can, in the wreck of his son’s affairs; yet it is a matter affecting character, which is simply the result of the common sense, or the sense of equity of mankind, that he should manifest that his claim is really just, and that he has not improperly yielded to the bias of paternal affection in any effort to screen the property of his son. The fact that the judgments were confessed after the institution of the suit in equity, although not absolutely controlling, presses heavily against the judgment creditor, where the fairness of the judgment is otherwise doubtful. Iiipp vs. Sawyer, Rich. Eq. Cas., 410. The conveyance of property by one sued, or expecting to be sued, however full may be the price, when the purpose of vendor and purchaser is to defraud him prosecuting, or about to prosecute, a right, is fraudulent and void. Pinson vs. Lowry, 2 Bail., 324. There may be, on this point, some distinction between the conveyance of property, and the creation of a lien upon it by judgment; for one reason for treating a conveyance as fraudulent is, that thus, by the consent of the parties, the property of the debtor is placed in a state in which it may be easily squandered or concealed, and in which it is not subject to the lien of a judgment or execution. Undoubtedly, too, a debtor has the right to make preferences among his bona 
      
      fide creditors, even by confession of judgment. Holbird vs. Anderson, 8 T, R., 235. Still Chancellor Harper, in Hipp vs. Sawyer, considers a confession of judgment as coming within the same principle as a conveyance, (Twine’s case 3 Co., 80); and Chancellor Dunkin, in Bowie vs. Free, 3 Rich. Eq., 403’, approves this conclusion.
    In this case, however, the concurrence of the parties in an express fraud on plaintiffs is not satisfactorily proved, if we assume that the judgments were for bona fide debts. From the express resolution of G. B. Montgomery, Jr., to defeat plaintiffs, and from his fraud in the conveyance of the mills, and in confessing judgment to his mother-in-law, and from all the circumstances of the case, the most unfavorable conclusion might well be drawn as to him; but the only evidence of fraud as to G. B. Montgomery, Sr., is his availing himself of the judgments fraudulently confessed by his son. This, I think, he might lawfully do, if he had established his debt. There he founders. He has proved no indebtedness of his son to him, and, under the circumstances of suspicion attending the judgments, and when they were directly assailed, the burden of proof was upon him. De non appa-rentibus et non existentibus, eadem est ratio.
    
    The conclusion is, that there was no consideration for these judgments, and that they must be put out of the way of creditors.
    As to the judgment in favor of J. B. Mickle, the supple-tory proof of his answer is not complete, but sufficient. He shows, by the inventory of the estate of Judith S. Montgomery, of which he was executor and principal legatee, that G. B. Montgomery, Jr., was indebted to that estate $400, with interest from December 29, 1846, by single bill, and as his answer states that the judgment was to secure this single bill, and as the plaintiffs have not established any strong circumstance impugning this judgment, the vacation of it would be harsh and unjust. As to the assignment to Mickle, of the Ford judgment, I am satisfied by the evidence of Ford and McDaniel that the assignment was fairly obtained.
    The proof of the assignment of Barclay’s judgment is not entirely satisfactory; but as the judgment itself is fair, and there is no proof of the satisfaction of it, except by the admission of Mickle’s answer, which must be taken altogether, that he paid Barclay from his own money, and took an assignment, this assignment cannot be disturbed.
    
      Thirdly, as to the assignment by Montgomery to Mickle, on June 11,1852. It is settled, in this State, that a debtor has the right to make preferences among his just creditors, and it follows that his purpose to postpone some creditors is not fraud. There is no reservation of advantage to himself by the assignor in this deed, which would make the assignment intrinsically infirm, and inoperative. It is also clear, that a debtor cannot defeat or injure his creditors by any attempt to disturb their liens, or to give his estate to favored persons, whom he may call creditors, when, in fact, he owes them nothing. At the date of this assignment, the plaintiffs had no lien upon the lands and chattels of the assignor, although they soon afterwards obtained.judgment and execution; and as to them, he might assign his whole estate to other just creditors. The judgments of Nancy Bailey and G. B. Montgomery, Sr., have been set aside as to creditors, but they are good between the parties; and these persons, although they have no liens, are entitled, even against creditors, to prove their just claims, and come in for satisfaction, ratably with creditors in the fourth class under the assignment. Dicken-son vs. Way, 4 Rich. Eq., 412. I so greatly doubt the application to this case of the principle, that a creditor controlling two funds must first resort to that fund which will produce satisfaction to him with least injury to other creditors, that I shall not venture to disturb the general scheme of the assignment. The conclusion of my judgment is, that the proceeds of the lands and chattels of G. B. Montgomery, Jr., whether embraced in the assignment or not, and the choses assigned, must be first applied to the satisfaction of the judgments of Mickle, Wm. Montgomery, and other liens not disturbed by this decree; next, the expenses and commissions of the assig-nee, Mickle; next, the creditors enumerated in the third class of the assignment; next, any residue of the lands and chattels to the plaintiffs’ decree ; and lastly, all the residue of the estate and credits of the assignor, ratably among all his creditors, including, of course, the plaintiffs, and G. B. Montgomery, Sr., and Nancy Bailey, if the last two establish any debts.
    
      Fourthly, as to the sales by the assignee. I am of opinion the purchases by the assignee, a trustee to sell, are voidable, at the option of creditors or any of them. Ex parte Wiggins, 1 Hill Ch., 343. I also conclude that the purchases by James B. Montgomery are voidable, as connected with the fraud in the purchase of the mills. After the sale, the negroes bought by him returned to the mills, and were controlled by G. B. Montgomery, Jr., just as before the sale. It further appears that one of these negroes was sold by G. B. Montgomery, Jr., and the proceeds applied to his debt to Gilliland & Howell. Another, Jim, was sold to Hughes, at a profit of $150, and Hughes’ note delivered to the assignee. As the purchasers of these two negroes were not parties to the suit, no order can be made for their re-sale; but as to the latter, the assignee must account for him at the- price of $595. Moreover, I think the purchases by G. B. Montgomery, Sr., of the negroes, Harry, Aaron, Gill and George, are voidable at the option of creditors.
    There is no proof concerning the circumstances of the sale, not even that it was by public auction, or that the creditors had bgen convoked to appoint an agent to act with the assig-nee under the Act of 182S, although this Act is referred to in the assignment with reference to the commissions of the assignee. The Act requires the assignee to call the. creditors together within ten days after the assignment, for the appointment of an agent, and declares all sales and transfers of property by the assignee before the appointment of an agent to be void and of no effect. 6 Stat., 366. Of the negroes above mentioned, Harry was returned after the sale to a person to whom he had been apprenticed, and continued just as before the sale; and Aaron, Gill and George returned to the possession of G. B. Montgomery, Jr., and were controlled by him as before the sale. It may be further remarked that the prices of these negroes seemed not to have been paid to the assig-nee; and that James B. Montgotnery had no means of purchasing except from the profits of the mills, to which he has been adjudged not to be entitled, and that G. B. Montgomery, Sr., had an unfair advantage over competitors at the sale, by being ostensibly and not really a judgment creditor. As to the negro Henry, purchased by G. B. Montgomery, Sr., as it does not appear that he returned to the possession of G. B. Montgomery, Jr., there is not sufficient reason for avoiding the sale. So as to the sale of Tom to G. B. Wm. Montgomery, as the possession seems to have been kept separate, the title of the purchaser must stand. I conclude that the plaintiffs are entitled to a re-sale of all the chattels purchased by Mickle, James B. Montgomery and G. B. Montgomery, Sr., except the negroes Henry, Jim, and the one sold to pay Gilliland & Howell; and if the plaintiffs choose to have a re-sale, it is ordered that the commissioner proceed to sell according to the practice of the Court.
    The defendants state in their answers that some of the plaintiffs are infants, and should sue by a responsible next friend. No proof on the point was offered; but the commissioner must inquire and report as to the infancy of any of the plaintiffs, and report suitable next friends for any of them who may be infants.
    The defendants further suggest that the creditors interested in the assignment in preference to the plaintiffs should be made parties. This is a creditors’ bill, and all that is necessary, is, that the creditors should be called in according to the procedure of the Court. And if this has not been done, it is ordered that the commissioner call in the creditors of G. B. Montgomery, Jr., by advertisement for three months, to present on oath and prove by the rules of evidence, their demands, on or before a day fixed by him, on pain of being barred from any portion in the distribution of said debtor’s assets. It is ordered that this opinion stand for a decree, and that the parties have leave to apply at the foot for any orders for the execution of it.
    It is further ordered, that the plaintiffs pay the costs of G. B. Wm. Montgomery, and that they be reimbursed lor this payment, and be paid their costs of suit, generally, by the defendants, G. B. Montgomery, Jr., G. B. Montgomery, Sr., James B. Montgomery, and Nancy Bailey; and if these defendants be unable to pay, that plaintiffs be reimbursed and paid from the assets in controversy. Let the costs of J. B. Mickle be paid from the assets assigned; and the other defendants, except Mickle and G. B. Wm. Montgomery, pay their own costs.
    The defendant, G. B. Montgomery, Sr., appealed from the decrees pronounced by Chancellors Wardlaw and Dargan, on the grounds:
    1. Because in said decree of Chancellor Wardlaw, it is held that the judgments in favor of G. B. Montgomery, Sr., against G. B. Montgomery, Jr., mentioned in the pleadings, are without consideration, and must be put out of the way of creditors, when it is respectfully submitted, that, as said judgments were subsisting, it was incumbent on those assailing them to show their want of consideration — that no such evidence was offered — that, although not required to show the consideration of his judgments, the said defendant did show they were bona fide, as complainants in their bill charged that said judgments were without consideration, and confessed for the purpose of defeating their claims, and defendant fully and explicitly denied the same in his answer.
    2. Because said decree of Chancellor Wardlaw orders the purchase by G. B. Montgomery, Sr., of the negroes Aaron, Gill, George and Harry, at the sale made by J. B. Mickle, assignee of G. B. Montgomery, Jr., to be set aside, and said negroes re-sold, when it is submitted that said sale was fair, and should not be decreed and held fraudulent from the fact that the purchaser who bought them at a public sale and paid for them, permitted them, from motives of kindness and good feeling, to return into the possession of the former owner.
    3. Because Chancellor Dargan, in his decree, orders said negroes, Aaron, Gill, George and Harry, to be delivered up by G. B. Montgomery, Sr., and sold by the Commissioner in Equity.
    4. Because the fact that G. B. Montgomery, Sr., permitted Harry, after said sale, to return to the possession of the person to whom he had been bound as an apprentice by G. B. Montgomery, Jr., it is submitted shows no evidence of fraud, and cannot vitiate the sale.
    5. Because it clearly appears, from evidence offered since the decree of Chancellor Wardlaw, that the judgments in favor of G. B. Montgomery, Sr., against G. B. Montgomery, Jr., were founded on bona fide consideration, and said judgments ought not to be set aside.
    The defendant, James B. Montgomery, appealed from the decrees of Chancellors Wardlaw and Dargan, on the grounds:
    I. Because said decree of Chancellor Wardlaw directs the purchases made by this defendant at the sale of G. B. Montgomery’s property, by his assignee, J. B. Mickle, to be set aside for fraud, when it is submitted that, as said purchases were fairly made at a public sale, the fact that this defendant permitted the property he purchased to return to his father’s possession, was no fraud on the creditors of said G. B. Montgomery, Jr.; no hindrance to them in the collection of their debts; and no evidence of combination between said defendant and G. B. Montgomery, Jr., to defraud complainants.
    
      2. Because Chancellor Dargan, in his decree, ordfers the said defendant to deliver the property purchased by him, as aforesaid, to the commissioner, and for the same to be sold by him as the property of G. B. Montgomery, Jr.
    The plaintiffs appealed on the grounds :
    1. Because his Honor erred in holding that the proceeds of the sale of the lands and mills of G. B. Montgomery, Jr., are subject to the preferences contained in his assignment to J. B. Mickle, the same not being embraced in his deed of assignment, and he, in his answer, haviug stated that he had no interest therein.
    
      2. Because, it being clear from the proof that the voluntary assignment was made to defeat the payment of the claim of complainants, and it being also clear, from the proof, that all the other valuable property, embraced in the assignment, was purchased by parties therein preferred, and large claims in said assignment being preferred, which were altogether fictitious, the Chancellor erred in not decreeing said assignment to be fraudulent and void as to complainants.
    The defendant, J. B. Mickle, and David McDowell, one of the creditors of G. B. Montgomery, Jr., appealed from the decree of his Honor, Chancellor Wardlaw :
    1. Because said McDowell’s note was given for the purchase money of the mills, and should have precedence of payment out of the proceeds of the sale of said mills.
    
      2. Because the purchase of J. B. Mickle, at the assignee’s sale, was fair, and unimpeached by a shadow of testimony; and, therefore, said purchase should not be set aside.
    
      McMiley, for plaintiffs.
    
      Mickle, Williams, for defendants.
    
      [Authorities cited: 5 Johns. Rep., 385; Webb vs. Daggett, 2 Barb., 9; Jacot vs. Corbett, Chev. Eq., 71; Le Prince vs. Guillemot, 1 Rich. Eq., 187; Anderson vs. Fuller, McM. Eq., 27; Hipp vs. Sawyer, Rich. Eq. Ca., 410; 4 Rich. Eq., 471; Brown vs. Postell, 1 Hill, 445 ; Moffatt vs. McDowal, 1 McM. Ch., 434; Hill vs. Rodgers, Riley Ch., 7; Bird vs. Atkins, Rice, 87; Barton vs. Rushton, 4 DeS., 373; 11 Stat., 62; 8 Leigh, 272; Anderson vs. Hook, 9 -Ala., 70; Union Bank vs. Toomer, 2 Hill Ch., 27; 14 Johns. Rep., 493; 3 Johns. Ch., 378; Guignard vs. Harley, 10 Rich. Eq., 256.]
    
      
       The Reporter has been unable to procure a copy of Chancellor Dargan’s decree. I-Ie does not conclude that it is very important to a full understanding of the case.
    
   The opinion of the Court was delivered by

Dunkin, Ch.

The first and principal ground of appeal relates to the judgment of Green B. Montgomery, Sr. It is true that when the plaintiff seeks to invalidate a judgment on the ground of want of consideration, which is denied by the answer of the judgment creditor, the defendant may, under ordinary circumstances, rely on his answer without further proof. In this case the plaintiffs alleged and proved a fraudulent intention on the part of Green B. Montgomery, Jr., to defeat the claim of the plaintiffs, and that, in pursuance of such intention, he had procured the deed of the lands and mills to be executed to his son, James B. Montgomery. It was charged that the several judgments to his father, Green B. Montgomery, Sr., to his mother-in-law, Mrs. Bailey, and to his son-in-law, entered on the same day, were without consideration, and for the same purpose. It was furthermore charged that at the sales subsequently made, the whole of the property of the debtor (with a very inconsiderable exception) was bid off by his family, and has ever since remained in his possession “and under his dominion and control as before the sale.” This was established before the Chancellor, and under the evidence the purchase of four of the slaves by the defendant, Green B. Montgomery, Sr., as well as other purchases on the same occasion, were set aside, and this judgment has the-concurrence of the whole Court. It was under these circumstances, that the Chancellor ruled that, although “a father has the same right as a stranger to save his just claims, if he can, in the wreck of his son’s affairs, yet that it was a matter affecting character, and it was simply the result of the common sense, or the sense of equity of mankind, that he should manifest that his claim is really just, and that he has not improperly yielded to the bias of paternal affection in any effort to screen the property of his son.” The Chancellor held that under the circumstances of suspicion attending the judgments, and when they were directly assailed, the defendant should have proved the indebtedness of his son to him.” He offered no evidence whatever. It was said for him here this was attributable to the absence of his counsel. This seems a misapprehension. The solicitor, who filed his answer, not only attended the references, but represented another judgment assailed on the same grounds, and took care to adduce evidence of the consideration which was sustained by the Court.

Although the Chancellor set aside this judgment as well as that of Nancy Bailey, (from which latter there is no appeal,) he allowed the defendant, Green B. Montgomery, Sr., to come in among the general creditors. A reference was accordingly had, and it is now asked to review and reverse the judgment upon the new evidence adduced. This would lead to great embarrassment. Evidence was not only given of an indebtedness, to some extent, from Green B. Montgomery, Jr., to his father, between 1842 and 1852, but evidence was also given that, during that time, Green B. Montgomery, Sr., was not in a condition to lend money to his son, or to any one else— much less to extend long credits. The Chancellor has said in his decree, that as to the alleged embarrassment of Green B. Montgomery, Sr.’s affairs he knew nothing from the evidence before him. It is not proposed to comment, in any manner, upon the new evidence, which might have a tendency to pre-judge questions that may arise upon the commissioner’s report. In determining the merits of an appeal, it would be great injustice to the Chancellor, and, not unfre-quently, much greater injustice to the parties, to admit the influence of evidence which might have been adduced, but was not before the Court. In this case the evidence on each side has introduced a very material element to aid the judgment in determining the existence and extent of the defendant’s claim as a general creditor of Green B. Montgomery, Jr., but it can have no weight to strengthen or invalidate the original decree.

Another ground of appeal is, that the note in favor of David McDowell should have precedence of payment out of the proceeds of the sale of the mill tract, because the note was given for the purchase money. In this State the doctrine has never prevailed, that the vendor of land has an equitable lien for the payment of the consideration. While something is due to the vendor who parts with his property, not less, certainly, is due to the subsequent creditor who has trusted the ostensible as well as legal owner of the estate, without any knowledge of a secret incumbrance. Upon this subject the language of Chief Justice Marshall, in Bailey vs. Greenleaf, 7 Wheat., 46, 50, is instructive. “ To the world,” says he, “ the vendee appears to hold the estate, divested of any trust whatever; and credit is given to him, in the confidence that the property is his own, in equity as well as law. A vendor, relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is, in some degree, accessory to the fraud committed on the public, by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien. It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a Court of Chancery, to the exclusion of bona fide creditors.”

The only authoritative decision in our own Courts, is that of Wragg vs. Creditors of Andrew Irvine, which was the judgment of a full Court, and is reported 2 DeS., 509. In that case, Chancellor Rutledge, speaking for the Court, wholly repudiates the claim of “ a bond creditor to have an equitable lien on the land he has sold, unless he has taken care to secure that lien by a mortgage;” and such, he says, has been the law of this country for at least sixty years past. More than half a century has elapsed since that decision, and, although, in a note to the case, further examination of the subject may seem to have been invited, the Court is not aware of any subsequent decision of this tribunal arraigning the judgment in Wragg vs. Comptroller General et al., creditors of Irvine. It may be added, that the Act of 1S43, requiring ail mortgages of real estate, however formal and perfect, to be recorded within sixty days, may well be regarded as a legislative declaration of the prohibitory policy of the country against any such secret liens.

The Court has said thus much in deference to the earnest and elaborate argument submitted by the appellant’s counsel. But it is clear on the facts as before us, that, neither in Great Britain, nor elsewhere, in which the doctrine of the vendor’s equitable lien is fully recognized, could the claim of the appellant be maintained. According to the report of the Chancellor, the vendor, in selling the premises to Doag, never relied on this evanescent and doubtful equitable lien, but took from him a mortgage of the premises to secure the purchase, money. When Doag afterwards conveyed to Montgomery, part of the consideration money was paid in cash to McDowell, and, for the balance, he took from Montgomery his single bill, with two sureties, and gave up or released his mortgage. Under these circumstances it would be vain, according to any of the authorities cited, for McDowell to resort to his original equitable lien, when he had surrendered his legal mortgage for another and satisfactory security, which he was content to receive. It is, perhaps, just to remark, as was suggested at the bar, that this appeal is prosecuted, not so much in behalf of McDowell, as of the sureties to the single bill who desire to be subrogated to his supposed equitable lien.

This Court has already intimated a concurrence in the views of the Chancellor, in reference to the re-sales ordered; nor, in relation to the other grounds of appeal, is it deemed necessary to add anything to the reasoning of the decree.

It is ordered and decreed, that the judgment of the Circuit Court be affirmed, and the appeal dismissed.

Wardlaw, Ch., concurred.

Appeal dismissed.  