
    *Coleman v. Cocke.
    December, 1828.
    Execution — Returned Satisfied in Part — Right of Creditor. — According to the equitable and correct construction of our Statute concerning Executions, (section 3d.) if a creditor, by Judgment or Decree, sues out a Fi, Fa. which is levied, and returned satisfied in part only, he may take out another kind of Execution, as the Elegit, without pursuing the Fi. Fa. to a return of Nihil.
    Fraudulent Conveyance--By Debtor to Son — Setting Aside — Case at Bar. — Conveyances from a father, who is in debt, to his sons, without any valuable consideration, declared to be grossly fraudulent, and decreed to be set aside at the suit of the creditors of the father, who obtained their Decrees long after the execution of the Deed.
    Samet— Same— Same — Same,—If a father purchase lands, and direct the conveyance to be made to □ his child, the conveyance maybe impeached for fraud by a creditor of the father. Therefore, where a father-, B., purchased two tracts of land of 0., under an agreement that the legal title should be withheld till the purchase money be secured, or paid, and the father held the possession as real beneficial owner for several years, and then being in debt, directed the vendor of the land, C., to convey to his son, W., which was done, and gave possession to his said son, no valuable consideration having passed from the son, either to his father, or the vendor, and then directed his said son to convey and deliver a part of the said land to another son, P., which was done, no valuable consideration passing, these conveyances decided to be fraudulent and void, and decreed to be set aside, and the lands to be sold, at the suit of the creditors of the father.
    Same — Same—Rights of Purchaser from Son, —Although if a son obtain a conveyance for land purchased by his father, that conveyance may be set aside for fraud by a creditor of the father, whilst the land is in the hands of the son; yet, if the son sell and convey the land to a third person for valuable consideration, who has no notice of the fraud between father and son, such third person being a bona fide purchaser, will be protected in his purchase against the creditors of the father, from the operation of the Statute of Frauds, by its proviso.
    Same — Same-Same—Priority over Judgment — Creditor of Grantor. — And if the'Deed of such bona fide purchaser be not duly recorded, yet he will be protected in his purchase against a creditor of the father, who obtains a Decree against the father, after the bona fide purchase so made, because such a purchaser has a prior equity to such creditor. For, if the original vendor had never made a Deed to the son, yet the purchaser, holding the equitable title transferred from the father to the son. and from the son to him, would have had a better right to call on the original vendor fora conveyance of the legal title, than any creditor of the father obtaining a Judgment against him, after his transfer of the equitable right to the son.
    Decrees — Two Decrees against Defendant on Same Day —Effect,—If there be two Decrees on the same day against a Defendant’s land, the whole, and not a moiety only of the land, ought to be directed to be sold; for, at Law, each of two Judgments would have taken a moiety of the land, and both of course the whole, if it had been extendible at Law.
    This was an appeal taken by Henry E. Coleman and William A. Bentley, from a Decree rendered against them *and others, by the Superior Court of Chancery for the Richmond District.
    The Bill was exhibited in February, 1820, by John F. Cocite, and Anne, his wife, who was Anne Ronald, and Elizabeth Ronald; and sets forth, that William Bentley, in, the year 1793, together with Samuel Pleasants and John Swann, qualified as Guardians of the female Plaintiffs, and of their sister, Jane Ronald, and executed a Guardian’s Bond* with four sureties, (naming them;) that the sister, Jane, died some time afterwards, under age and unmarried, leaving the female Plaintiffs her heirs: that Pleasants and Swann were merely passive, and that William Bentley took possession of the lands, slaves, and other personal property of the Plaintiffs, and received the rents, issues and profits thereof, till August, 1806, when the Plaintiff, Elizabeth, made choice of Samuel Pleasants as her Guardian, and Anne, of John Swann as hers: that Bentley, having disposed of, and dissipated a great deal of property of the female Plaintiffs, their new Guardians sued Bentley, to compel him to account, and to restrain him from wasting the estate, and the Superior Court of Chancery, finally, on the 19th February, 1819, Decreed, that the said Bentley should pay each of the Piaintiffs, his former Wards, (who had then come of age,) the sum of $6,621 62, and their joint costs, amounting to $337 99: that the Plaintiffs sued out their Executions against the said Defendant’s goods, by which the costs were made, and the sum of $91 86 for each of the Plaintiffs, and “no effects,’’ returned as the residue.
    The Bill states, that the said William Bentley, early in 1805, purchased of William A. Cocke a tract of land in Halifax County, containing one thousand and fifty-seven acres, for the sum of 1,8001., and in 1806, purchased of James Cocke another tract of land and ferry in the same County, for 1,2001., and paid the full amount of the purchase money to the Messrs. Cockes; that at the former period, the said Bentley was indebted to the Plaintiffs *in more than $12,000. and at the latter period, more than $14,000, according to the report made in the before-mentioned cause: that no Deed was made of the said tracts of land to the said Bentley, but that by his desire, William A. Cocke conveyed, in August, 1805, the first mentioned tract to William A. Bentley, a son of the said William Bentley; and by the same request, James Cocke conveyed, in 1806, the second tract to the same William A. Bentley: that no consideration passed from William A. Bentley to ^either James or William A. Cocke, and the Bill expressly charges, that William Bentley voluntarily, gratuitously and ■ fraudulently caused the conveyances to be so made to his said son: that the said William A. Bentley, in May, 1807, conveyed, by the direction of his father six hundred acres of the first mentioned tract to Peter E. Bentley, a brother of the said William A. Bentley, for the consideration of $1; and the Bill charges fraud also in this transaction.
    The Plaintiffs further aver, that the said William Bentley made, in August, 1807, a fraudulent conveyance to his son, John W. Bentley, of a tract of land in Powhatan County, of three hundred and ninety acres, with sixteen slaves and other property, and that no valuable consideration passed for the same: that in April, 1808, he fraudulently conveyed another tract in Powhatan, on which he then lived, containing eight hundred acres, together with two negroes, a carriage, .his horses and stocks' of ail kinds, plantation utensils and house hold furniture, including plate and kitchen furniture, to the same son, John W. Bentle'y, who gave no valuable consideration for the same: that John W. Bentley died in 1814, having devised his land and other property to his sister, Judith, and brother, Henry Bentley ; and that his brother, Joseph R. Bentley, administered on his estate: that the said William Bentley also conveyed, fraudulently to his son, Joseph R. Bentley, a tract of land in Halifax, and another in Harrison County, together with sundry slaves, and other property, the son paying no valuable consideration for the same.
    *When these conveyances were thus made to tne two sons, John and Joseph, the father was stiil more largely indeoted to the Plaintiffs.
    The Plaintiffs further state in their Bill, that in July, 1813, the said Peter 13. Bentley conveyed to Henry B. Coleman, for the consideration of $6,243. five hundred and twenty acres of land, part of the said tract which had been conveyed to him by the said William A. Bentley, in May, 1807 ; and they expressly' charge, that the said Coleman was cognizant, at the time of his purchase, of the fact, that the said tract wdi part of that which had been fraudulently conveyed, by direction of the father, by the one son to the other, and of the fact ih it the said William Bentley was largely indebted to the Plaintiffs, and as a proof of the fart, they refer to a Deed, bearing date 28th October, 1815, from the said William Bentley and Wife to the said Coleman.
    They state,»that in June, 1807, the said William Bentley, under the pretext ox indemnifying the sureties for his administration, on the estate of William Ronald, conveyed to certain Trustees, two tracts of land in Powhatan, one of them containing four hundred and twenty acres, the other eight hundred, being the same conveyed afterwards to John W. Bentley, as above-mentioned: that the said William Bentley had fully administered the estate of William Ronald as early as 1794, when a balance was found in his favor of more than 9851. due to him from the estate, and that this pretended Trust Deed was not made till 1807, when the sureties in the Administration Bond were in no manner of danger, but the said William Bentley, as Guardian, was indebted to the Plaintiffs in the above-mentioned large sums, and they therefore charge, that the said Deed of Trust was executed for the express purpose of defrauding them.
    They state, that after the above mentioned voluntary and fraudulent conveyances were made, and during the pendency of the suit brought by their Guardians against the said Bentley, that is, on the 26th September, 1811, he *the said William Bentley, took the oath of an insolvent debtor.
    They pray that the said William Bentley, and his sons, William A., Peter E., Joseph 8., and Henry Bentiey, and his daughter, Judith Bentley, and the representatives of his deceased son, John W. Bentley, and the said Henry E. Coleman, may be made parties Defendants to their Bill: also, that the Trustees for the sureties of William Bentley’s administration on the estate of William Ronald, and the surviving sureties, and the representatives of the deceased sureties of William Bentley, as Administrator of Willliam Ronald, and the representatives of the deceased sureties of William Bentley’s guardianship of the Plaintiffs, (all by name,) should be made parties Defendants.
    They pray that the Defendants to whom the voluntary and fraudulent conveyances aforesaid have been made, may account with them for the same, and may release to them the legal titles: that the property, real and personal, conveyed to the sons, he declared a trust for the Plaintiffs, and sold by a Decree of the Court: that the Trustees for the sureties of Bentley release the property conveyed to them, or that the property be declared a trust for the Plaintiffs, after the sureties ate indemnified: that the representatives of the sureties in the Guardian’s Bond be required to pay the penalty of the Bond, and that the Defendant Coleman be declared a purchaser with notice, and the land purchased by him be subjected to the just claims of the Plaintiffs, and for general relief.
    The Deeds and other documents referred to in support of the Plaintiffs’ Bill are correctly recited therein, except perhaps the Deed from William Bentley and Wife to Coleman, in 1815. That Deed recites that William Bentley had purchased the land in Halifax from William A. Cocke, previous to his intermarriage with his present wife, (she being the second,) but that he had given it to his sons, Wm. A. and Peter B., and that the conveyance was made by William A. Cocke to his son William A. Bentley, ifarid by him to his son Peter E. after his intermarriage: that Peter E. had conveyed to Coleman, and that doubts had been entertained whether his said wife was entitled to dower in that land ; to remove that doubt, and to relinquish such supposed dower right, the Deed is declared lo be made.
    The Deed from Peter E. Bentley to Henry E. Coleman, bears date 10th May, 1813; it is a Deed oí bargain and sale, in the usual form, expressing the consideration paid by the grantee to the grantor, and with general warranty. It does not show on its face how Peter B. Bentley, the grantor, derived his title. The Deed is attested by five witnesses, was proved in the County Court of Halifax, on the 24th May, 1833. by two witnesses, which was ordered to be certified, but it does not appear to have been ever proved by any other witnesses, and was therefore not recorded.
    Amongst the documents referred to by the Bill, are three Executions of Fi. Fa., consequent on the Decrees rendered in the suit of the Guardians of the female Plaintiffs, which suit was in process of time carried on by the Plaintiffs themselves, they having come of age. One of the Executions was in behalf of Elizabeth Ronald, against William Bentley’s goods and chattels, for $6,621 62, with interest from 30th January, 1811, till paid; another in behalf of John F. Cocke and Anne his wife, against the same Defendant, for the same sum; and the third in behalf of all of the said Plaintiffs against the same Defendant for $337 99, which had been Decreed to them for their joint costs. All of the Executions bore date 8th March, 1819, returnable to the first day of the next Term, and were levied by the Marshal on three slaves, the proceeds of the sales of which were applied first to the discharge of the Execution for costs, and the surplus divided and applied equally to the other two, on each of which was made the sum of $91 86. The Marshall does not return “nulla bona,” as to the residue of the money *decreed to the Plaintiffs, nor does it appear from the Record that any other Execution was sued out under that Decree. Thiá suit was shortly afterwards brought.
    So much for the Bill, and its exhibits.
    The Defendant William A. Bentley, answered, saying that in 1805 or ’06, a verbal contract was made between his father and himself, by which he was to purchase, and .receive from his father, a tract of land, for which his father had paid a full and valuable consideration: that as some difficulty was expected in the relinquishment of dower by his father’s wife, it was agreed that the Messrs. Cockes should convey directly to the Defendant, and that the Defendant should convey six hundred acres to his brother Peter: that several exchanges having been made between the Defendant and his brothers Peter and Joseph, he now retains about fifty acres of that six hundred acre tract, for which he has paid a valuable consideration to Joseph. He argues, that if no valuable consideration had passed, that blood alone, from a father in prosperous circumstances, to a son'just commencing life, would be entitled to some respect, and that the creditors of William Bentley could not disturb his title, so long as there was other property unprotected by such an equity; but he avers that for the five hundred and seven acres which he holds,he bound himself to pay his father 1,0001., in annual instal-ments, beginning in 1808, and that he has paid that sum, the last in 1812. [He supports this allegation by the deposition of one Armistead Martin, who proves that he saw the Defendant pay his father 2001. in each of the years 1808-9-10; and by the deposition of John Peck, who proves that he saw him pay his father 2001. in 1812, and that William Bentlej' said that it was the last instalment.] The Defendant further says, that since 1812, he has made sundry advances to his father, and to others for him, but has rarely retained the vouchers, knowing there would been no occasion for them between himself and his father: that he has recently paid 2621. 10 4, as a surety for his father, under an Execution ^issued by Ellis & Allan. [This allegation is supported by the deposition of the Deputy Sheriff.] He concludes that he has thus pa;d a full and valuable consideration for the land, and prays that the Bill may be dismissed as to him.
    The Defendant, Henry E. Coleman, answers, and says that he purchased of Peter E. Bentley, a tract of land in Halifax, containing five hundred and twenty-one acres, for $6,243, which he has long since paid for. At the time of the purchase he knew that the said tract was part of that conveyed by William A. Cocke to William A. Bentley, but he has no recollection that he knew the fact, that William Bentley had purchased and paid for the land, and desired Cocke to convey to William A.. Bentley. That Peter E. Bentley had been in possession of the land for several years,, and the Defendant denies that at any time: before the transaction was closed by the: payment of the purchase money to the said: Peter, he the Defendant had any notice whatever, that William Bentley was indebted to the Plaintiffs, or others, or that, he had procured the said land to be conveyed to the said William A. Bentley, for the purpose of defrauding the Plaintiffs, or any other creditor, or creditors. With respect to the Deed to him from William Bentley and Wife, in 1815, he says, that, after he had paid to Peter Bentley about two thirds of the purchase money, he was informed that the wife of William Bentley would set up a claim of dower, and required a release, of that interest, and the Deed was executed for that purpose alone. He relies for this protection, on his own equitable and legal title, obtained from Peter E. Bentley, without notice of the claim of the: Plaintiffs, fortified by the Deed from William Bentley and Wife, made before the Plaintiffs obtained any Judgment or Decree, against the said William Bentley, which could have given them a lien on any land which the latter might have owned. ^Several of the representatives of the sureties for the Administration of William Ronald’s estate answered, but it is not necessary to notice those Answers.
    The deposition of William A. Cocke was. taken. He proves that in 1796, or ’97, he sold to William Bentley a tract of land in Halifax of one thousand one hundred acres and more, for which the said William Bentley alone paid him, and he made the Deeds in 1805, to William A. Bentley, at the request of his father. He denies that, at the time of the purchase, William Bentley declared he was purchasing for his son, and would not ask for a Deed till he came of age: the Deed was not to be made till the purchase money was secured, but it was made sooner. The whole money was, however, afterwards paid.
    James Cocke deposed, that about the year 1800, he exchanged his land, containing one hundred and fifty four acres,' at Bibb’s, ferry, in Halifax, valued at 1,0001., with William Bentley, for a tract of eight hundred acres, in Amelia, valued at $7 50' per acre; the deponent made the Deed in 1806, by request of William Bentley, to. his son William A. Bentley, for the purpose, as Bentley said, of saving the expense of record in two Deeds. The deponent paid the difference to William Bentley, or to his orders, transmitted by his son William A. Bentley.
    There were two other depositions taken by the Plaintiffs, to invalidate the evidence-of Armistead Martin and John Peck, the: two witnesses adduced by William A. Bentley to prove the payment of 1,0001. to his father in several years from 1808 to 1812.
    The Chancellor pronounced an interlocutory Decree on the 24th June, 1826; in which, after reciting the Decree rendered in 1819, in behalf of the present Plaintiffs, against William Bentley and others, and stating that Executions had issued, and that they had produced only a small part of the sums Decreed, he says, that '‘It also appears to the Court, that while the said William Bentley was largely indebted to his Wards, he, by several voluntary Deeds, ^conveyed, or caused to be conveyed to his sons, the whole, or nearly the1 whole, of his estate, real and personal, and afterwards took the oath of an insolvent debtor.” He then specifies those Deeds, viz., the Deeds from William A. Cocke and James Cocke, to William A. Bentley; from William A. to Peter E. Bentley; the two Deeds from William Bentley to his son, John W. ; and from the said William Bentley to his son, Joseph. He then proceeds: “It also appears to the Court, that the said Peter E. Bentley sold and conveyed to the Defendant, Henry E. Coleman, five hundred and twenty acres, part of the said land in Halifax, purchased as aforesaid from the said William A. Cocke. This purchase and conveyance were made pending the suit in this Court, in which the Decree aforesaid was rendered ; and on the face of the conveyance it appears, that the Defendant, Coleman, had notice of the manner in which the said Peter E. Bentley acquired his title to the lands aforesaid. The said Coleman, to confirm his title thus acquired, took a Deed of Release from the said William Bentley and Wife in October, 1815.” The Decree then states, that it does not appear that the Deeds for the lands in Halifax had ever been recorded, and that it was admitted “by the Defendant’s Counsel, that the said Deeds were not otherwise recorded, than appears by the certificates of the Clerk, though he insisted, that as the legal title to the said land had' never been in the said William Bentlej’, the recording of the said Deeds was not necessary to their validity. Upon the facts above stated, and upon the proof in the cause, the Court is of opinion, that all the aforesaid Deeds to the sons of William Bentley, were voluntary, fraudulent and void, as to the Plaintiffs, the creditors of said William Bentley; and that the whole of the property, real and personal, conveyed by them, is liable to be sold in satisfaction of the debts due to the Plaintiffs. The Court is also satisfied, that the Deed to the Defendant, Coleman, does not prevent the property thereby conveyed to him, from being subjected to *the Plaintiffs’ claim; but, as he is a purchaser for valuable consideration, the Court will not subject his property to sale, until it shall be ascertained whether the Plaintiffs’ debt can be satisfied from the other property within the reach of the Court.”
    The question arising on the Deed to the Trustees for indemnifying the sureties to the administration on William Ronald’s estate, are deferred till the final hearing; and in the mean time, the property so conveyed will be brought into market, and the proceeds held subject to the future order of the Court. The question as to the liability of the sureties of William Bentley as Guardian, is also deferred.
    The Decree then directs, that unless the Defendants, or some of them, shall pay to the Plaintiffs the sums respectively due to them, the Defendants do surrender the whole of the propert3’, real and personal, included in the Deeds aforesaid, to the Marshals, who are directed to sell the same on the terms specified: but, the Marshal is ordered not to require a surrender of the land held by the Defendant, Coleman, nor to proceed to sell the same, unless the proceeds of the other property surrendered under the Decree, shall be insufficient to satisfy the debt and interest due to the Plaintiffs.
    Erom this Decree the Defendants, Coleman and William A. Bentley, appealed.
    Heigh, for the Appellants.
    Johnson and Stanard, for the Appellees.
    
      
      Executions. — On this subject, see monographic note on “Executions” appended to Paine v. Tutwiler, 27 Gratt. 440.
      See principal case cited in M’Cullough v. Sommerville, 8 Leigh 434; Findlay v. Toncray, 2 Rob. 378; Taylor v. Spindle, 2 Gratt. 67.
    
    
      
      Fraudulent Conveyances.-See full discussion of this subject in monographic note on "Fraudulent and Voluntary Conveyances” appended to Cochrane v. Paris. 11 Gratt. 348.
      The principal case is cited on the point in Taylor v. Spindle, 2 Gratt. 57; Dold v. Geiger, 2 Gratt. 102; withers v. Carter, 4 Gratt. 415; Lockhar v. Beckley, 10 W. Va. 96.
    
    
      
      Real Estate —Priority—Equitable Interest — Legal Title. — In Delaplain v. Wilkinson, 17 W. Va. 267, it is said: “It seems that it has long been an established rule of courts of equity, that, apart from any positive provision of a statute to the contrary, where one has an equitable interestin land with a good right to call for the conveyance of the legal title, and a subsequent encumbrancer (e. a- a judgment creditor) whose debt did not originally affect the lands, acquires the legal title, he shall notwithstanding be postponed to the equitable claimant. For since the subsequent encumbrancer did not orlgi nally take the land for his security, nor had in his view an intention to affect it, when afterwards the land is affected by his lien, and he comes in claiming under the very person who is obliged in conscience to make the assurance good, he stands in that person’s place and is postponed, despite his legal title, to the superior equity of the adverse claimant. 2 Lorn. Dig. 487; Burgh v. Francis, 1 P. ffms. 279: Withers v. Garter, 4 Gratt. 411; Coleman v. Cocke, 6 Band 618: 2 Min. Inst. 873. 874.”
      See principal case also cited in Camden v. Harris, 15 W. Va. 563.
    
   December 17.

JUDGE GREEN

delivered his opinion.

) The Appellees having obtained Decrees against William Bentley, filed their Bill against him, and many persons holding personal, and others holding real property, some of them directly, and others indirectly, under him, the object of which was to set aside the conveyances as being *fraudulent as to them, and to subject the property, thereby conveyed, to the satisfaction of their claims.

The Counsel for Coleman, who holds a part of the land in question, urged as an objection to the jurisdiction of the Court, that at the time when the Bill was filed, the Plaintiffs had not a capacity to sue out Elegits on their Decrees, without taking some further preliminary step to enable them to do so, and consequently had not then a subsisting lien on their debtor’s land, that not being the effect of a Judgment only per se, but of the capacity to extend it by Elegit, and that a creditor at large, having no lien on his debtor’s land, cannot claim the aid of a Court of Equity, in order to enable him to reach it by removing impediments to his proceedings at Haw. This objection, if well founded, would lead to the dismission of the Bill as to the relief sought, in respect to all the lands mentioned in it.

The objection is founded on the decision of this Court in Eppes v. Randolph, 2 Call. 125, and a recent decision of C. J. Marshall, to the same effect, in which it was held, that a judgment creditor could not overreach in Equity a bona fide conveyance of his debtor’s land, made after the Judgment, and at a time when the capacity to sue out an Elegit was suspended in consequence of no Execution having been sued out within the vear, and no election entered on the Record, or for any other cause. These decisions proceeded upon the merits of the respective cases, and not upon the question of jurisdiction, and whether right or wrong, do not touch the case under consideration, either in respect to the question of jurisdiction, or upon its merits; for here ail the Defendants were purchasers before the date of the Decrees, and are charged to have purchased fraudulently. And in all the cases upon the subject, in the English Court of Chancery, it seems to have been the. uniform course to consider a Judgment, with a capacity to acquire the right to sue out an Elegit, by Scire Eacias or otherwise, as such a lien as gave jurisdiction to the Court whenever other circumstances justified its *'interposition. And in no case has there ever been any enquiry whether the Judgment had been kept alive by taking out Execution within the year, or otherwise, or whether it had been actually revived or not, in the case of the death of either party, unless from some cause, (for instance the great lapse of time,) it was doubted whether the party could revive his capacity to sue out an Elegit, by reviving his Judgment, as in the case of Burroughs v. Elton, 11 Ves. 29.

However all this may be, I think it clear that at the time when this Bill was filed, the Plaintiffs had an existing capacity to sue out Elegits upon their Decrees, without any preliminary proceeding whatever. They had taken out Executions of Fieri Facias, which had been levied, and returned in part satisfied by the sale of the property taken, without any return of Nihil as to the residue. And in such a case, it is contended, that the Plaintiff could not take out an Elegit, without first taking out a new Execution of Fi. Fa., and having it returned Nihil, upon the ground that upon the just construction of our Statute concerning Executions, it was required that a party electing to resort to one species of Execution, could not resort to one of another description, until he had exhausted the effect of the first, by pursuing it to a return of Nihil or Non est In-ventus ; and, especially, that upon the literal terms of the Statute, an Elegit could not be taken out after a Fi. Fa. or Ca. Sa. returned, unless the return was Nihil, or Non est Inventus.

This leads us to a particular examination of our Statute, the first section of which provides, that ail “persons who have, or shall hereafter recover any debt, damages or costs, in any Court of Record, may at their election prosecute Writs of Fieri Facias, Elegit, and Capias ad Satisfacien-dum, within the year, for taking the goods, lands and body of the debtor.” It then prescribes the teste and return days, and the forms of those Executions, and of their returns. The third section provides, that “when any *Writ of Execution shall issue, and the party, at whose suit the same is issued, shall after-wards desire to take out another Writ of Execution at his own proper costs and charges, the Clerk may issue the same, if the first be not returned and executed; and where, upon a Ca. Sa. the Sheriff shall return, that the Defendant is not found, the Clerk may issue a Fi. Fa. ; and if, upon a Fi. Fa. he shall return that the party hath no goods, or that only part of the debt is levied, in such case it shall be lawful to issue a Ca. Sa. upon the same Judgment; and where part of a debt shall be levied upon an Elegit, a new Elegit shall issue for the residue; and, where Nihil shall be returned upon any Writ of Elegit, a Ca. Sa. or Fi. Fa. may issue, and so vice versa ; and where one Judgment is obtained against several Defendants, Execution thereon shall issue, as if it were against one Defendant, and not otherwise.”

The fourth section, enacts the provisions of 32 Hen. 8, ch. S, which provides, that if a tenant by Elegit be evicted, he may have Scire Facias against the debtor, his heirs, executors and administrators, and have such Executions for the residue of his debt unpaid, as if no Execution had theretofore issued, enlarging tne provisions of the English. Statute, in this, that whilst that only allowed a new Elegit, ours allows a new execution of any sort. The next three sections enact the provisions of the 16th and 17th Car. 2, ch. 5, declaring, that an Extent shall not be avoided on account of the omission of any lands which were extendable. The eighth and ninth sections enacts the provisions of the 21st Jas. 1, ch. 24, authorising a new Execution against the lands and tenements, goods and chattels of a debtor dying in execution, except such lands and tenements as have been bona fide sold for the payment of some other creditor, and the proceeds so applied.

The thirteenth section enacts the provisions of 29th Car. 2, ch. 3, declaring, that goods shall be bound by a Fi. Fa. only from the time of the delivery to the Sheriff. *The twenty-eighth section provides, that a debtor in execution rqay relieve his body, by surrendering goods to be sold as if taken under a Fi. Fa., provided that if they be not sufficient to pay the debt, or are subject to a lien, a new Fi. Fa. or Ca. Sa. may issue. These are all the provisions which touch the question under consideration.

The argument, that a party having once made an election to take one species of Execution, cannot afterwards resort to another, till that elected is exhausted by a return of Nihil or not found, proceeds upon the idea, that such is the effect of the first section giving such election, or the consequence of the particular provisions of the third section, according to which, in every case, (except one, in which a new species of Execution is allowed to be resorted to,) the former is supposed to be first returned Nihil, or not found; and so in the twenty-eighth section, in which a Fi. Fa. or a Ca. Sa. but not an Elegit, is allowed after a debtor has been discharged upon the surrender of property, which proves insufficient to pay the debt incumbered. And the other suggestion, that the literal terms of the Statute allowing a Ca. Sa. or Fi. Fa. after an Elegit returned Nihil, and so vice versa forbids an Elegit after a Ca. Sa. or Fi. Fa., unless they be returned Nihil in the one case, and not found in the other, proceeds upon the idea, that our Statutes have abrogated the Common Eaw in respect to Executions, and contain in their own provisions all the Laws in force upon that subject, none of which propositions appear to me to be sustainable. And if not, then upon Common taw principles connected with the Stautes giving the Elegit the latter Execution might issue after a Fi. Fa. in part satisfied, although not returned Nihil, as was decided in the case of Berry v. Wheeler, 14 Car. 2; 1st Siderfin, 91.

The Statute of Westm. 2, 13 Edw. 1, ch. 18, which gave the Elegit, is nearly in the language of ours: “Wnen debt is recovered or acknowledged in the King’s Court, or damages awarded, it shall' be from henceforth in the election *of him that sueth tor such debt or damages, to have a Writ to the Sheriff Fiera Facias of the lands, (Levari Facias) 2 Inst. 395, and goods (Fi. Fa.) 2 Inst. Ibid., or that the Sheriff shall deliver to him all the chattels of the debtor, saving only his oxen and beasts of the plough, and the one-half of his land,’’ &c. At this time, the Writ of Ca. Sa. in the case of a private person, was only allowed in cases of trespass vi et armis, when the Capias in Process laid. It was afterwards extended to other cases, by allowing the Capias ad Respondendum to them.

■ The early constructions of the Statute of Westminister, proceeding on the maxim that “electio unius est exclusio alterius,” determined, that when the creditor had elected one species of Execution, he could never resort to any other, although that elected proved ineffectual. Thus, in 20 Edw. 2, Execution, 132, it was held, that after a Ca. Sa. awarded, although it was returned “not found,” no other Execution could afterwards issue; and so in 19th H. 6th, it'was held, that after an Elegit prayed and entered on the Record, the party could not resort to any other Writ of Execution, because he had made his election ; and in the early cases there are many instances of the like construction. But this rigorous, and to creditors, michievous construction, gradually gave way to a more liberal spirit In the Courts of Justice, favoring the remedies of creditors, and in some instances, in which the contrary principle had become so fixed as to be beyond the power of the Courts, the Legislature interposed in their favor, as in the instances of the Statutes of Hen. 8, Jac. 1, and Ch. 2, incorporated Into ours. And when our Statute of 1726, the protot3’pe of the present, so far as the question under consideration is concerned, was passed, this principle of construction was almost wholly, and soon after was entirely repudiated, and the doctrine fully settled, that a creditor might take in succession all sorts of Execution, as long as it appeared that his Judgment was not, and until it was fully satisfied, unless indeed some Execution had been levied, which had *such a tendency to satisfy, as that there was no criterion by which to ascertain for what sum a new Execution should issue; asa Ca. Sa. executed, or lands extended under an Elegit. Opr Statute of 1726, so far from intending to abolish the Common Law and English Statutes in force here in respect to Executions, and to return to the strict doctrine of election, which had prevailed in ancient times, was, I think, designed to declare, that the Common Law and English Statutes, prior to the 4th of James 1, were still in force here, and to be continued, and to adopt, not only the liberal constuctions of the Courts in favor of creditors, as far as they had then gone, but 1he Statutes in the same spirit which had .been passed since our Colonization. Accordingly, it recites that by the Common Law of England, and divers Acts of Parliament, which are binding on the people of this Colony, all creditors might, at their election, within the year, prosecute Executions of Fi. Fa., Ca. Sa. and Elegit; and professes only to prescribe the forms of those Executions, and their returns, in order to produce uniformity in practice. And whilst it omits to enact the Statute of Westm. 2, which gave the Elegit, and that of 32 Hen. 8, giving remedy to tenants by Elegit evicted, as being already in force, it enacts verbatim the other English Statutes, now incorporated in our Statute, which passed subsequent to the 4th James 1, which had no force here till so re-enacted. And the preamble to the section which enacted those provisions, which are now in the third section of our present Act, declared that they were enacted for the purpose of “removing ail scruples which may be entertained amongst Clerks concerning the issuing of Executions ;” and in giving directions concerning the issuing of Executions, the Act conformed to the most liberal decisions which had then taken place in favor of creditors. Thus, the first provision that the Plaintiff might have two Executions of different kinds in the hands of the Sheriff, provided he had only one executed, was contrary to the ancient principle of election, but in conformit3' to the then *very recent decision (in 1725) of Stamper v. Hodson, 8 Mod. 302. So, as to the second provision, allowing a Fi. Fa. after a Ca. Sa. returned “Not found,” which was in conformity to the decision in Hob. 57. So as to the third, allowing a Ca. Sa. after a E'i. Fa. returned “Nihil,” or in part satisfied, which was according to Carr v. Copping, 4 James, cited 11 Vin. Abr. 38, pl. 5. So in the fourth case, of an Elegit allowed after an Elegit in part satisfied; that agreed with the decision in the case of Glasscock v. Morgan, 14 and 15 Car. ; 1 Lev. 92. And so also in the fifth case, of a Ca. Sa. or Fi. Fa after an Elegit returned “Nihil:” that was in conformity with the determination in Andrews v. Cope, 15 James 1; cited Hob. 57; 11 Vin. Abr. 42, Execution, (Y. a.) and so in the sixth case, of an Elegit after a Ca. Sa. returned “Not found,” ora Fi. Fa. returned “Nihil;” that agreed with the more ancient cases of 30 Edw. 3, 24 and others. And the last provision, directing Executions to issue against several, as if there were but one Defendant, pursued the decision in Rosser v. Welch & Kemmis, Godb. 208; 11 Jas. 1; 11 Vin. Abr. Execution, (X. a.) pl. 19.

Considering, then, the general spirit and objects of this Statute, I cannot conceive that it was the intention of its framers to deprive creditors of remedies by Execution, which they would have had if the Statute had not been made. And even if these Statutes were considered as containing the ■whole Law of Executions, I should say that a right to take an Elegit after a Pi. Pa. in part satisfied, and not returned “Nihil” as to the residue, would fall within the spirit, and be sanctioned by the equity of the Statutes.

All the Defendants claiming lands directly under William Bentley, are volunteers, and the Deeds under which they claim, grossly fraudulent, and the Decree as to them correct.

The case is different as to the lands claimed by William A. Bentley and Coleman, indirectly under him, in respect *to which the facts are these: In 1796 or 1797, William Bentley purchased of Wm. A. Cocke, upwards of eleven hundred acres of land, with an agreement that no Deed was to be made until he had given Bond and security for the purchase money. Wm. A. Bentley was then, and probably long after, an infant.

In August, 1805, Wm. A. Cocke, at the instance of Wm. Bentley, conveyed this land to Wm. A. Bentley, who paid no valuable consideration for it to any one. Wm. Bentley had not then paid the whole purchase money, or secured it to Cocke, but afterwards paid it to him.

In 1800, James Cocke and Wm. Bentley exchanged lands, Cocke giving him one hundred and fifty-four acres adjoining the land sold by Wm. A. Cocke to Bentley, at the price of 1,0001., and Bentley giving Cocke about eight hundred acres in Amelia, at $7 50 per acre. A considerable part of the difference was paid by James Cocke to William A. Bentley, by order of his father, William Bentley. In December, 1806, James Cocke, at the instance of Wm. Bentley, conveyed the one hundred and fifty-four acres of land to Wm. A. Bentley, who paid no valuable consideration to any one for it.

In May, 1807, Wm. A. Bentley conveyed to his brother Peter E. Bentley, six hundred acres of these two tracts of land, by a Deed reciting that their father had purchased the lands from the Messrs. Cockes, who had conveyed them to him at the instance, and by the permission of Wm. Bentley, who particularly enjoined it upon him to convey the six hundred acres to Peter E. Bentley, and this is the only consideration stated, and no other was given by Peter E. Bentley to any one.

In July, 1813, Peter E. Bentley conveyed five hundred and twenty acres of this land to Coleman, for the consideration of something more than 16,000, and in October, 1815, Wm. Bentley and his wife, with a view to bar her claim .to dower, conveyed the same land to Coleman *by a Deed reciting that William Bentley, had purchased the land of Cocke, but had not procured any conveyance to himself, or in trust, and had given it to Peter E. Bentley and Wm. A. Bentley, his sons, to the last of whom Cocke had conveyed the land at his request, who especially enjoined it on William A. Bentley to convey to Peter E. Bentley, all that part of the land which laid above the bridge road. At this time, Coleman had paid only about three-fourths of the purchase money to Peter E. Bentley, but afterwards paid the balance, before, as he says in his An- I swer, he had any notice of the fraud charged upon the Bentleys, by the Plaintiffs.

At the several periods when all these transactions took place, William Bentley was largely indebted as their Guardian to the female Appellees, who, in August, 1806 chose new Guardians, and in November, 1807, instituted the suit against William Bentley for the settlement of his accounts as their Guardian, in which they obtained the Decrees (in 1819,) which are the foundation of this suit.

In 1807, and early in 1808, Bentley conveyed the residue of his estate, real and personal, without any valuable consideration to his other children, and in September, 1811, took the oath of. an insolvent debtor. None of the Deeds, under which Coleman claims, from those of the Cockes. to William A. Bentley, inclusive, were duly recorded. This fact was not charged in the Bill, but being urged at the hearing, time was given to enquire into it, and the fact afterwards admitted to be so.

If the legal title to these lands had even been in William Bentley, and were claimed: under him by direct conveyances from him, made under the circumstances accompanying the transfer of his equitable title to-William A. Bentley, his Deeds would clearly be void for fraud, so far as William A. Bentley was concerned, and even in respect to Coleman, if he had notice of the fraud.

Some doubt seems at one time to have existed upon the question, whether, if a father or husband purchase lands *in the name of his child or wife, or in his own name, causing in either case a conveyance to be made to the wife or child, the transaction could be impeached by a creditor of, or purchaser from, the husband or father, upon the ground of fraud, inasmuch as in such case there is no-resulting trust for the husband or father, as in the case of a purchase by one, and a conveyance to a stranger.

In Lady George’s Case, cited Cro. Car. 550, as decided in the 10th of Car. a father having purchased in the name of his daughter, and afterwards sold to another, it was held in the King’s Bench, that unless there were some fraud discovered, it was not within the 27th Eliz. though there be many badges of fraud.

In Back v. Andrews, Prec. Ch. 1; 2 Vern. 120, (1689,) a father purchased copy-hold, which was conveyed to himself, and his wife and daughter, and their heirs. This was held to be an advancement for the wife and daughter, and not a trust for the husband, and that a mortgage by him should not bind the lands in the lifetime of the wife and daughter.

In Fletcher v. Sedley, 2 Vern. 490, (1704,) Wright, Lord Keeper, inclined, that a lease purchased by A., and conveyed to B. in trust for A. during his life, and after-wards for C., who lived with A. as his wife, and was so reputed, was not assets of A., nor liable after his death to his creditors; for when a man purchases, he may settle as he pleases, and thought that fraudulent conveyances are made so only by the several Statutes made for that purpose.

In Proctor v. Warren, Sel. Ca. in Lord King's time, 78, (1729,) Lord King said, that he did not know that it had ever been •determined, that if a man indebted, intending to provide for his children, has an •estate originally conveyed to them, it should be subject to his debts.

On these cases, which are all that 1 have met with tending to establish the proposition, that such a transaction cannot be ■impeached for fraud, X remark, that in Lady George’s Case, and that of Back v. Andrews, no fraud appears *to have been established, and the declarations of Keeper Wright and Lord King in the other cases, were mere dicta, upon which no Judgment was founded.

Tne case of Stileman v. Ashdown, as it can be collected from the Reports of Atkyns, vol. 2, p. 477, and Ambler, pi. 13, appears to have been thus: The father purchased lands, which were conveyed, in 1700, jointly to himself and one of his sons, and their heirs, and other land, which, in 1708, was •conveyed jointly to himself and another of his sons. The dates of these purchases are not noticed. They were probably co-temporaneous with the conveyances. The father was also entitled to an equity of redemption of an estate mortgaged to one of his said sons. In 1721, a creditor of the father obtained a Judgment against him. The father continued in possession of these lands until his death in 1735, when his sons entered upon the estates respectively conveyed to them jointly with their father. The Executor of the creditor filed his Bill against the sons, for satisfaction out of the mortgaged and purchased estates. In 1742, Lord Hardwicke decreed, that the Plaintiff might redeem the mortgage; in which case the mortgaged premises should be sold, and the money paid for the redemption of the mortgage, refunded, and then the Judgment, and the costs at law and in Equity, satisfied. And if the sales of the mortgaged premises should not be sufficient to satisfy the whole of the Plaintiff’s •demands, that then a moiety of each of the estates, conveyed jointly to the father and his son respectively, should be sold, and the balance due to the Plaintiffs paid out of the proceeds rateably and proportionably, and the surplus paid to the sons respectively. But, if the sales of the whole property should not be sufficient to pay the whole of the plaintiff’s demands, the Court reserved the consideration of the rents and profits of the two moieties directed to be sold. Upon a re-hearing in 1743, upon the petition of the Plaintiff, who considered himself aggrieved in that, the De-cree did *not subject the whole of the purchased lands, and all their rents and profits to his demands, the Decree was affirmed.

In this case the whole of the purchased lands conveyed jointly to the father and sons, was considered, so far as the creditor was concerned, as belonging to the father, but as between the father and the sons respectively, and as between the sons, as belonging to the latter, according to the conveyances. A moiety was condemned to satisfy the Plaintiff’s demand, not because the father was entitled by the conveyances to a moiety, tor in that case the right of survivorship in the sons, which they insisted on, would have been preferable to the lien of the Judgment on the father’s moiety’; (6 Co. Rep. 79, Lord Abergaveny’s Case,) but because considering the father as entitled to the whole, so far as the creditor was concerned, yet only a moiety could be subjected in Equity,"since no more could have been reached at Law, if it had been a legal estate.

Lord Hardwicke, as reported by Atkyns, argued that although a purchase by a father, in the name of a child, in general imported an intention to advance the child, and prevented the implication of a trust for the father, such as would arise in the case of a conveyance to a stranger, yet that a conveyance jointly to the father .and child, was not calculated to effect the object of an advancement, and left it doubtful whether it was so intended; a suggestion which contradicted the express decisions in point in Scroope v. Scroope, 1 Ch. Ca. 27; 15 Car. 2, and Back v. Andrews, before noticed, and the subsequent decision in Dyer v. Dyer, noticed in 1 P. Wms. 112, Note; and lam persuaded that Lord Hardwicke’s Judgment did not proceed on that ground, for if, as between the father and children, respectively, there was a trust for the father, and therefore, and for that reason only, the property liable for his debts, then for the same reason, the surplus of the sales, after satisfying the debt, would have been Decreed to be paid to the eldest son, as heir at law, and who was a party, *whereas the Decree was precisely such as must be made in the case of all fraudulent conveyances, setting them aside so far as to let in the claims of creditors, and leaving them to have full effect as between the parties. And that this was the ground of the Judgment, appears by Lord Hardwicke’s concluding observation : “It is not necessary that a man should be actually indebted at the time he enters into a voluntary settlement, to make it fraudulent, for if he does it with a view to his being indebted at a future time, it is equally so, and ought to be set aside.” And Sugden, in his Treatise on the Law of Vendors, (page 424,) justly considers this as the ground of the Judgment, “the settlement being considered as voluntary, and fraudulent against creditors.” And after showing that the case of a joint conveyance to father and child cannot be distinguished from that of a conveyance to the child only, but that in both cases, as between the parties, it should be considered as an advancement, he adds, “Fraud is of course an exception to every rule.”

Thus we have against the dicta of Keeper Wright and Lord King, the express decision of Lord Hardwicke, in Stileman v. \shdown, and the implied admission in Lady George’s Case, that a purchase by a father, and a conveyance to a child, may be impeached for fraud, either by a creditor of, or purchaser from, the father. And so in Christ’s Hospital v. Budgin et ux. 2 Vern. 683, it was said, that a purchase in the name of a wife or child after marriage, and voluntary, may, perhaps, be fraudulent as against creditors, in like manner as if the settlement was of property actually vested in the husband or father. And deplorable, indeed, would be the imbecility of the Law if it could not reach such a case as' that under consideration. Here the father purchased in his own name, and not in the names of his children: he held the property, in one instance, as his own ten years, and in the other six, not only apparently, but as the real beneficial owner of the property. He was then largely indebted, and any creditor who could then “have had a Judgment against him, might have subjected that property to the payment of his debts, either under our Statute, making uses and trusts liable to the charges and debts of the ces-tui qui trust, or upon the original principles of a Court of Equity, which, following the Law, will, in general, give such relief against equitable estates of the debtor, as might be had at Law, if the estate was legal. The beneficial estate was settled in the father, and it was as much a fraud to give away to a chiid this beneficial interest, to the prejudice of his creditors, as to have conveyed away the legal title in like manner, if he had it. If such a transaction could not be held to fall within the Statute of Frauds, I should think it might be well reached by the general principles of Equity, according to which the Cockes were trustees for William Bentley. And although a conveyance by them to his son, with William Bentley’s assent, would, as between the parties, extinguish the trust, and the son would hold the land exempt from it, yet a Court of Equity might well hold, that by reason of the fraudulent intent of this transfer, the existing trust for William Bentley should not be thereby destroyed, but should still subsist so far as creditors were concerned; upon the ground that persons acquiring a title by fraud are held to be trustees for the injured person, although they certainly did not intend to require the property in that character.

The Decree was, therefore, right also as respects the lands held by William A. Bentley, and has properly directed the whole, and not a moiety only of the lands held subject to satisfy the demand of the Appellees, to be sold, since there were several Decrees on the same daj’; each of which would have taken a moiety of the lands, if they had been extendable at Law.

As to Coleman, I think he must be considered as a bona fide purchaser, for valuable consideration, without notice of the fraud, and therefore protected against the operation of the Statute of Frauds by its proviso. And as to the lands held by him, the only question is, whether they are liable *to the claims of Bentley’s creditors on account of the Deeds under which he claims not being duly recorded. Upon the fullest consideration, I am of opinion that they are not. So far as Coleman is concerned, we are to consider the case as If William A. Bentley had given to his father an adequate valuable consideration for the transfer of his interest i-n the lands purchased from the Cockes, and that the transaction was tainted by no fraud. The equitable interest of the father was not transferred to the son by the execution of Deeds to him by the Cockes, but by the previous authority given by him to them to execute those Deeds. And if such an authority had been given by the letter, and the Deeds never made, a bona fide purchaser of the equitable interest from William A. Bentley, would have had a better right now to call upon the Cockes for their conveyance of the legal title, than any creditor of William Bentley getting a Judgment against him after the transfer of his equitable right to his son. Such a transfer was valid without Deed, and was not nec-essarilj’ to be recorded to make it available against his creditors. The Deeds from the Cockes passed,'not Bentlej-’s equitable title, but their naked legal title only, and if void so far as to leave that title still in them, yet those Deeds, together with the other evidence in the cause, would be full proof that William Bentley’s equitable right was transferred to his son, and in respect to Coleman, we must take it to have been done (as before said) bona fide, and for valuable consideration: So, that if we held the Deeds to be void, it would not avail the Appellees any thing. The Decree as to Coleman should therefore be reversed, and the Bill dismissed, and in all other respects affirmed.

The PRESIDENT, and JUDGES CA-BELL, COALTER, and CARR concurred.  