
    *Day v. Hale & als. Hale v. Hare & als.
    March Term. 1872,
    Richmond.
    Absent, Staples, J.
    
    1. Depositions—Omission to Refer to Them in Decree.— When depositions are taken and filed in a cause, both parlies having' been present when they were taken, and the decree is obviously based upon them, the omission to refer to them in the decree will be considered a clerical mistake, and the cause will be considered as having been heard upon them, as we] 1 as upon the other papers.
    2. Conveyances—Liens.-1 sold land to G, but made no conveyance; G sold the same land to E, and E sold it to J, taking his bonds for the purchase money; and'J sold it to D, the purchase money due to E being unpaid, of which D had notice, but was informed that any lien that E had upon the land had been released in consideration of J's giving additional personal security to the lands; and under that belief I conveyed the land to D. E has a lien upon the land, in the hands of D, for the unpaid purchase money due to him from J, and this though E assigned to J the title bond for the land which he received from G.
    This case was argued at Wytheville at the June term, 1871, and was held for consideration until the March term at Richmond.
    In November 186S, Beatrice A. Hale, in her own right, and as guardian of her two infant children, instituted a suit in equity in the Circuit court of Giles county, against James F. Hare, Joseph Hare, Flisha G. Duncan, Daniel P. Hale, Isaac Hale, Isaac H. Day, and James D. Johnston, in his own right and as executor of Fdward Hale. In her bill she alleged that, at the October term of the court, a judgement was rendered for her ^benefit against the Hares, the Hales, and Duncan, upon seven bonds of $200 each, with interest, &c. ; and at the same term two judgments were rendered for her benefit as guardian of her children: one against Isaac Hale for $335.34, with interest, &c., and the other against Isaac Hale and Daniel P. Hale, for $754.27 with interest, &c. And she exhibited copies of the judgments. She alleged that James 3?. Hare was wholly insolvent, and that Joseph Hare, Duncan, and Daniel P. Hale were in very doubtful circumstances. She alleges that, a short time before said judgments were recovered, Isaac Hale conveyed to his son-in-law, Isaac H. Day, his tract of land lying on Wolf creek, in the county of Giles, upon which he then and still lives; and she charges that this deed was made with intent to hinder and delay his creditors, and that Day had notice of such fraudulent intent. She alleges that the land thus sold by Isaac Hale to Day was worth $4,000, and that for it Day gave to said Hale a tract of land in Idercer county, West Virginia, at $1,000, which was more than its value, and his bonds for $700 at three, four and five, or four, five and six, years, without interest. And she exhibits the deed. She insists that the inadequacy of price, the relation of the parties, and the avowed purpose of Hale to defeat the collection of her said claims against him, are evidence of fraud; and she is advised that a court of equity will declare by its decree that the deed from Hale to Day was made in fraud of her right, and will subject the said land to be sold to satisfy her judgments. She states further, that at the same term of the court James D. Johnston obtained a judgment against Isaac and Daniel P. Hale for $484.02, and, if he desires, he may.be allowed to participate in the fund arising from a sale of the land.
    She further represents that Joseph Hare, E. G. Duncan, and D. P. Hale have some equitable, perhaps legal, claims to lands in said county, of the situations of which, or the incumbrances on it, complainant is not informed, *but which she is advised is liable to the payment of her judgments. And she prays that the deed from Isaac Hale to Day may be decreed to have been made to delaj', hinder, and' defraud his creditors, and is therefore void, and that it may be sold to satisfy complainant’s judgments; that any interest the said James and Joseph Hare, Duncan, and D. P. Hale may have in real estate, legal or equitable, may be also sold to satisfy said judgments, and for general relief.
    Isaac Hale, Day, Daniel P. Hale, and Johnston, answered separately. Isaac Hale, admitting the judgments and his sale to Day, denies that the sale was made to hinder and delay his creditors, or was in any way tinctured with fraud; and he denies that the land was sold at a price greatly below its value. He denies that the land in Mercer county, which he received from Day, was estimated at more than its value. On the contrary, he sold it on the same da3' to his son, Daniel P. Hale, for $1,000, in payment of a debt of that amount which he owed him; and that Daniel P. Hale had since sold the said land for $1,000.
    He further says that the $1,700 agreed to be paid for said land was for his interest only, the said Day having contracted in writing, which he exhibits, to support the wife of the respondent for her life, in consideration of her relinquishment of her Tight of dower in the land.
    Da3r says that he has been informed, and believes, that the plaintiff’s judgment for $1,400 is really the debt of James E. Hare, and is the purchase money due for a tract of land purchased by said Hare of Edward Hale in his lifetime, and that Isaac Hale, with others, became security for the payment.
    The respondent cannot say certainly with what intent Isaac Hale conveyed the land in the bill mentioned; but he does say that the charge in the bill, that Isaac Hale conveyed the said lands to respondent in fraud of his creditors, and with intent to hinder, delay and defraud *them, and that respondent had notice of such fraudulent intent, is wholly false; and that the charge that the land was worth $4,000 at the time of the conveyance, is also false, the said land not being worth more than half that sum, as respondent verily believes. Nor is it true that the land in Mercer county, given to said Isaac Hale in exchange for said lands, were estimated greatly above their value; indeed, respondent believes the land in Mercer is, intrinsically, worth nearly or quite as much as the land conveyed by Isaac Hale to respondent, and he was induced to give the difference he did give more in consideration of the locality than in consideration of the intrinsic value of the lands. He considers the price he gave to Isaac Hale, and the undertaking to support his wife for her life, as fully equal to $2,000, which he regards as the full value of the land. He therefore denies all knowledge or suspicion of fraud on the part of said Hale, and calls for full proof of the same.
    Daniel P. Hale says that the seven bonds which are the foundation of the judgment for $1,400, together with three others on which suit has not been brought, were executed by the defendant, James E. Hare, as principal to Edward Hale, deceased, with the other parties thereto as his sureties, for a tract of land on Wolf creek, in Giles county, now in the possession of and claimed by Andrew J. Hare. That Edward Hale retained a lien on said land for said purchase money, which should be applied to the payment of said judgment, before it is collected from the sureties in said bonds, of whom he is one; which he asks may be done.
    James D. Johnston says that he, as executor of Edward Hale, deceased, by direction of his will, passed over to the complainant, in her own right, the seven bonds upon which her judgment for $1,400 was based, and also three others on which suit has not been brought. He also says, that at the November term, 1865, of the County court of Giles, he recovered a judgment against 'x'Isaac Hale and Daniel P. Hale for $484.02, with interest and costs, and also a judgment against Daniel P. Hale for $316.62, with interest and costs; and he asks that in any decrees that may be rendered against said parties, provision may be made for the payment of his debts.
    In September 1866, the plaintiff filed an amended bill in this case, in which she alleged that the seven bonds on which her judgment for $1,400 was founded, as well as three other bonds held by her against the same parties, were executed to her late husband, Edward Hale, by the said James E. Hare, as principal, and the other obligors therein as his securities, and that they were executed for a tract of land sold by Edward Hale to James E. Hare, lying on Wolf creek, in Giles county. That Edward Hale had purchased the said land, but had not acquired the title, which was still in Isaac Hare, his vendor; and that Edward Hale made no conveyance for said land in his lifetime, and that none had been made by his heirs or legal representatives. That after the death of Edward Hale, James E. Hare sold the said land to Daniel Hale (since dead), trustee of Mrs. Wilmoth Hare, wife of Andrew J. Hare; and that shortly thereafter the said trustee procured a conveyance to be made to him by Isaac Hare, with the consent of the said James E. Hare. She is advised that Edward Hale retained a lien on the land for the purchase money, and that the same is a subsisting lien in her favor, as the assignee of Edward Hale, unless she had deprived herself of it. She admits that, for the purpose of greater security to said debt, she did, after the assignment to her, procure two additional securities upon said bonds; but she avers that she did not then, and has never, relinquished her said lien, and that it never was her intention to do so.
    The plaintiff further alleges, that at the date of her said judgment, the defendant, Elisha G. Duncan, owned *a tract of land on Wolf creek, in the county of Giles, the legal title to which had been conveyed to him by Isaac Hare: and she exhibits the deed. She insists that her judgment is a lien upon this land. Notwithstanding which, since the rendition of said judgment, and with full knowledge of the same by all the parties, the said Isaac Hare, with the consent of the said Duncan, has conveyed the said land to James H. Erench, as trustee for Mrs. Phcebe Duncan, wife of said Elisha. She is advised that this land is also liable to satisfy her said judgment. And making Andrew J. Hare and Wilmoth, his wife, and her present trustee, Eustace Gibson, Isaac Hare, Daniel Hale’s executors, James H. Erench and Mrs. Phoebe Duncan, as well as the original defendants, parties to her amended bill, she prays that her vendor’s lien upon said lands may be enforced, and her judgments satisfied by the sale thereof, and for general relief.
    The defendants brought in by the amended bill answered separately. James E. Hare says, that he executed his ten bonds, of $200 each, to Edward Hale, for the purchase money of a tract of land sold by Hale to him. This land was originally a part of the homestead of Joseph Hale, deceased, which was sold under his will by Manilius Chapman, the executor, and bought by Isaac Hare, who sold the same to George D. Hoge, and Hoge sold the same to Edward Hale, the late husband of the complainant, and he sold it to the respondent. He avers that at the time of his purchase from Edward Hale, respondent proposed to him to retain his vendor’s lien on said land, as security for the purchase money; but he positively refused, and said he wanted nothing further to do with the land; but if respondent would give him Daniel P. Hale as security, he would release the land from all liability. Respondent thereupon assented to said proposition, and executed to Edward Hale ten several bonds of $200 each, with Daniel P. Hale *as security therefor, which are the bonds above mentioned.
    The respondent further says, that some time after the death of Edward Hale, about the time he was negotiating for a sale of the land with Andrew J. Hare and his wife,” through their trustee, Daniel Hale, respondent went to Giles courthouse and applied to James D. Johnston, executor of Edward Hale deceased, and told him that he was about selling the said land, and could not do so unless he would release it from all liability for the purchase money. Johnston replied, that acting as executor, as he was, he did not consider that he had the power to release the land, but that he would immediately consult Mrs. Hale, and let respondent know the result. At the same time, respondent offered to give additional security to said notes, in consideration that the land should be released from all liability. In a few minutes, Mr. Johnston returned to respondent, and told him that he had had an interview with Mrs. Hale, who consented to the arrangement proposed; and thereupon, respondent procured three additional securities to said bonds, viz: Isaac Hale, Elisha G. Duncan, and Joseph Hare, all of whom signed the said bonds as additional securities for the same. Respondent thereupon proceeded to perfect the sale to the said Daniel Hale, trustee for Wilmoth Hare, in the full confidence that the said tract of land was released from all liability for the purchase money thereof. The obligors in said bond were at that time worth at least $15,000.
    Respondent further says, that at the time he bought the land of Edward Hale, said Hale directed George D. Hoge, his immediate vendor, to make the title, or have it made to the respondent; but respondent neglected to call for the title until after the death of said Hale, and then supposing that, as he had no writing releasing said vendor’s lien, it would be necessary to get a release from the executor, he went to Johnston, and proposed to *give him additional security, which was accepted as hereinbefore stated.
    The executors of Daniel Hale, and Andrew J. Hare and wife, rely upon the facts stated in the answer of James F. Hare, and insist that the lien on the land for the purchase money, was released; and ,Hare and wife, aver, that at the time of their purchase they were informed and fully assured, and still believe, that Edward Hale, in his lifetime, and the plaintiff, had released said lien; and with this understanding they became the purchasers.,
    These parties-say further, that the land was -purchased.at the price of $2,500; of.this sum, $1,000 was paid by a tract of land near the Grey Sulphur Springs, which was held by Daniel Hale in trust for Wilmoth Hare, and the balance of, the purchase money was paid by William Hale, who held the money in trust for the said Wilmoth Hare. Isaac Hare says that he did convey to Daniel Hale as trustee for Wilmoth -Hare, the tract of land referred to, and that this conveyance was made by the consent of James F. Hare, Daniel Hale, trustee as aforesaid, and as he understood and believed by the consent of Edward Hale, in his lifetime, as well as by his representatives after his death.
    Respondent further says, as to the conveyance made by him to Elisha G. Duncan for land lying on Wolf creek, he has no recollection whatever; and if. he ever made such a deed he i§ not aware of it, and was not at the time of making it; and he is not now aware, except upon examination of the clerk’s office, where he finds such a deed, purporting to have been made by him bn the same day he made the deed to Daniel Hale, trustee, &c., as above stated. He is certain that no such deed was ever demanded of him by Duncan, and it was not his intention to make such a deed, and he can only account for it in the following manner : at the time he made the deed to Daniel Hale, trustee, &c., the deed and certificates *were prepared by Albert G. Pendleton, and respondent signed and acknowledged such papers as were presented to him by said Pendleton, at that time, as he understood that hie was acting as counsel for Andrew J. Hare and wife, in that matter, and at that time, the deed to Duncan must have been signed and acknowledged by respondent under the impression that it was part and parcel of the other deed. Respondent was not aware until a very few days since, and not until some time subsequent to the conveyance set forth in the amended bill from him to James H. French, trustee for Mrs. Phoebe Duncan, and at the time of making this last deed to French, he was not aware that he had made the first conveyance, and therefore made the deed to French in good faith, in pursuance of an understanding had between Duncan and his wife in reference to said land.
    Duncan and his wife, in their answer, deny that the tract of land set forth in the amended bill as belonging to Duncan, is wholly his property, and say that it belongs to Mrs. Duncan in her separate right. The facts are as follows: on the 15th of September 1847, Joseph Hare, the grandfather of Mrs. ’ Duncan, made a deed of gift to her and her two brothers, James F. and Andrew J. Hare, to a tract of land lying near Giles courthouse, containing five hundred and fifty-seven acres; and Duncan and wife removed to the land, and lived there for two or three years: and they exhibit the deed. In the meantime, Joseph Hale.died, and by his will directed his executor, Manilius Chapman, to sell his home place on Wolf creek; and said Chapman did sell it, and it was purchased by Isaac Hare at the price of $3,000. Isaac Hare and Duncan agreed to pay for the land jointly, and executed their bonds to Chapman jointly. Subsequently, the land was divided between them, Duncan agreeing to pay Isaac Hare $500 difference in the division.
    Shortly after the purchase, Duncan and wife removed to the land, and Duncan being unable to pay for the land *without a sale of the land hear Giles courthouse, Mrs. Duncan consented to the sale of that land, with the right reserved by her, to have conveyed to her just such interest in the Wolf creek land as she possessed in the land at Giles courthouse; and with that understanding, the land at the courthouse was sold and conveyed to 'j'^tts and Mahood for $3,000.
    In order to carry out this agreement, Duncan, in 1866, procured the conveyance from Isaac Hare to French; Chapman having previously conveyed the whole tract to said Hare; Duncan considering ■ that, looking to the values of the two tracts, that was but a just equivalent for Mrs. Duncan’s interest in the land near Giles courthouse.
    The respondents aver that they had no knowledge of any deed made by Isaac Hare to Duncan, and they are certain that no direction, express or implied, was ever given by them or either of them, for the said conveyance to be made; but the same was wholly without their knowledge or consent; and Duncan avers that he never accepted or agreed to accept said conveyance, and knew nothing of its existence, until he saw it in the clerk’s office a short time before. Under these circumstances, Duncan says his interest in the Wolf creek land cannot, in any event, be more than that of tenant by the courtesy, and that is more than he would be justly entitled to under the contract with his wife.
    A great many witnesses were examined by both the plaintiff and the defendant, Day, as to the value of the land sold by Isaac Hale to Day, and that conveyed by Day to.him; and as is usual in such cases, the witnesses for the respective parties differed widely as to the values of both tracts. The witnesses for the plaintiff estimated the land sold by Hale to Day at $3,500, and one of them at $4,000; whilst Day’s witnesses put it at from $2,000 to $2,500. So the plaintiff’s witnesses estimated the land in Mercer county at from $600 to $1,000; and Day’s witnesses put it at from $1,000 to $2,000. It was *sold by Daniel P. Hale, to whom Isaac Hale conveyed it at $1,000.
    The only witnesses who spoke of any declaration ox Isaac Hale’s intention in making the conveyance was the defendant, Johnston, and Eorenzo D. Hale. Johnston, having recovered the judgment mentioned in the bill and his answer against Isaac Hale, went to see him, accompanied by E. D. Hale, in order to secure some arrangement for its payment. He says, that after he had told him the object he had in view in coming to see him, Hale said he intended to pay all his own debts, but that he was overwhelmed with security debts, and that he made this deed to prevent paying these security debts. After seeing Isaac Hale, he went on to see Day, and after detailing some conversation between them, by which Hale seems to have been offended, and told him he supposed he brought E. D. Hale as a witness; witness told him no: he was there to represent Mrs. Hale’s debts, but that he could be a witness if necessary. Witness then says: 1 ‘In the first part of the conversation I told him that Mr. Isaac Hale had told me that he had made the deed to him to prevent his having to pay security debts, to which he made no reply; and before I left I asked him if Mr. Hale did not tell him, at the time of making the deed, that he made it to prevent paying debts in which he was security. He hesitated or paused a moment, and asked me to repeat the quesiton, or asked me what it was I asked. I repeated the question to him, and his reply was, I’ll not answer that question now.
    Eorenzo D. Hale says he was with Johnston on the occasion referred to by him, and he concurred with Mr. Johnston in his statement of what occurred during those con versati ons.
    Day, who gave evidence in the case, says Mr. Johnston said, if I am not mistaken, that Mr. Hale owed him a debt, and if he saw an opportunity, he intended to *make it. After that Mr. Johnston asked me two questions that I did not answer. He asked me if I ever heard Mr. Hale say that he would not pay a security debt. After he had threatened to sue the land and make the money, I thought it proper not to answer the question, and I told him I would not answer the question. His reason for not answering was, that Johnston and Hale had come there, and he thought it was done to take advantage of him. He says, if Isaac Hale had any intention of delaying or defrauding his creditors he never revealed it to me.
    The evidence shows very clearly that the land conveyed in trust for Mrs. Andrew J. Hare was paid for in the mode stated in their answer, by the proceeds of the sale of her land, and by money in the hands of her trustee, Wm. H. Hale, bequeathed to her by her grandfather, Isaac Hale. The different sales of the land, and the state of the title, are correctly stated by James P. Hare, except as to the plaintiff’s lien.
    A. J. Pendleton, who was consulted by A. J. Hare as to his rights, states tha.t he prepared the deed. As to the debts due the plaintiff, about the time, perhaps the day, on which the additional securities of Isaac Hale and E- G. Duncan were added to the notes, he had an interview with the plaintiff, and he advised her that, if her vendor’s lien then existed, the taking of additional securities would not impair it. Johnston says Mr. Pendleton applied to him, as executor of Edward Hale, to release the security, but he declined to do it. Eorenzo D. Hale, who acted as the agent of the plaintiff, says that at the time James F. Hare proposed to give additional securities on the bonds, witness informed him that Mrs. Hale would not release her lien on the land for any security he might offer. Witness also informed Mr. Pendleton at that time that Mrs. Hale would not release her right to the land. After Mr. Pendleton returned from seeing Mrs. Hale, witness went over to her house *to get the bonds. He got them from Mrs. Hale, with the instruction from her that she would not release her lien on the land for any security, but they could give the security or not.
    As to the land conveyed to French in trust for Mrs. Duncan, it was paid for by the proceeds of the sale of her land, which was sold under an agreement with her, that she should have the same interest in the land purchased; and the first deed seems to have been executed by Isaac Hare, as stated in his answer, and without the knowledge of Duncan.
    The cause came on to be heard on the 17th of October 1867, upon the bills taken for confessed as to some of the defendants, the answers of the others and exhibits filed (but nothing is said of replications to the answers, or the depositions), and the court made a decree declaring the deed from Isaac Hale to Day fraudulent and void, and setting it aside; and commissioners named were directed to sell the land upon terms stated in the decree. The bill was dismissed as to Andrew J. Hare and Wilmoth, his wife, and her trustee, Gibson. And the court being unable, in the present condition of the case, to determine what interest Elisha G-. Duncan has in the land conveyed to him by Isaac Hare, or what the same is worth, ordered that a commissioner shoxtld take an account of the interest of said Duncan in said land, and its value, and make report to the court at its next term.
    Prom so much of this decree as set aside the deed from Isaac Hale to Day, and directed a sale of the land, Day applied to a judge of the District court at Abingdon for an appeal; and from so much of the said decree as dismissed the bill as to A. J. Hare and wife, and her trustee, Mrs. Hale applied for an appeal: and both appeals were allowed.
    The case was argued for the appellants by Wade and*John W. Johnston, and for the appellees, Andrew J. Hare and wife, by the Attorney-General and Mahood.
    
      
      He had been counsel in the cause in the Circuit court.
      See monographic note on “Depositions” appended to Field v. Crown, 24 Gratt. 74.
    
    
      
      Depositlons—Omission to Refer to Them in Decree.— See Turnbull v. Clifton Coal Co., 19 W. Va. 299, where after an exhaustive review of the cases the principal case is affirmed and the cases of Shumate v. Dunbar, 6 Munf. 431, and Nelson v. Cornwell, 11 Gratt. 741, which seem to be contra are distinguished. See also. Renick v. Ludington, 20 W. Va. 533, where the principal case is approved, and Camden v. Haymond, 9 W. Va. 690 is distinguished. In Ramsburg, Koogle & Co. v. Erb, 16 W. Va. 778, the headnote reads as follows: “The fact, that depositions taken prior to the hearing and decision of the court below In such case, to be read as evidence at the trial, are found among the papers of the cause, and copied into the record by the clerk, is not sufficient to authorize the appellate court to consider such depositions as having been given in evidence before the court below.”
    
   ANDERSON, J.

delivered the opinion of the court.

The original bill in this cause was exhibited for the purpose of setting aside the deed of conveyance made by Isaac Hale and Nancy his wife, to their son-in-law, Isaac H. Day, as fraudulent and void as to creditors ; and to subject the lands so conveyed to satisfy the plaintiffs’ judgments. The consideration mentioned in the deed for said conveyance is $1,700. But there is a paper filed as an exhibit with the answer of Isaac Hale, which purports to be an obligation of Isaac H. Day, in consideration that Nancy Hale, the wife of Isaac Hale, had relinquished to the said Day, her dower in the said lands, to maintain and support her in comfort for her natural life, in addition to the consideration of $1,700 mentioned in the deed; and it is assigned as an error in the decree here for the first time, that Mrs. Hale was not made a party in the suit.

In general, all persons materially interested in the subject, ought to be made parties to the suit, either as plaintiffs or defendants; whether those whose rights are concurrent with the party instituting the suit, or those who are interested in resisting the plaintiffs’ claim. We are of opinion that Mrs. Hale is not shown to have aity such interest. She has certainly no interest concurrent with the plaintiff; and the bill not seeking to' subject her contingent interest of dower, she is not interested in resisting the plaintiffs’ claim. Her right of dower in the lands, should she survive her husband, or the agreement of Day for her maintenance and support, in consideration of her relinquishment, is not a matter necessarily, nor properly, a subject of litigation in this suit; and we are, therefore, of opinion that there is no error in the decree of the Circuit court upon this ground.

The next assignment of error we shall notice is, that *the decree not stating that the cause was heard upon depositions, they should be excluded from consideration; and the answers being responsive to the bill, and denying its material allegations, it should have been dismissed. ' The record shows that depositions were taken by both parties, and that both parties were present at the taking of the depositions, and cross-examined each others witnesses; and it appearing from the entry of the clerk, that the depositions were filed in the cause before the hearing, and the decree being evidently founded upon the evidence, it is fair to presume that it was a clerical omission in drawing the decree, and that the cause was heard upon the depositions.

The case of Shumate v. Dunbar, 6 Munf. 430, is not very fully reported. But it was a suit against an absent defendant, and it was incsumbent on the court to see that the proceedings against him were all regular and proper; and it not appearing in the record that any notice had been given to him' of the time and place of taking the depositions, either by publication or otherwise, the court would not look into them. If this were an error, it might have been corrected in the court below on motion. A decree cannot be reversed now even for want of a replication to the answer, when the defendant has taken depositions, as if there had been a replication. Nor shall a decree be reversed at the instance of a party who has taken depositions, for an informality in the proceedings, when it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done. Code, ch. 181, § 4, p. 743. We are therefore of opinion that this objection should be overruled.

The material and important question in this branch of the case is, Is the deed from Isaac Hale to Isaac H. Day fraudulent and void as to creditors? We deem it unnecessary to go into a review and analysis of the testimony. But, after a careful examination, we are of opinion that there is no error in the decree on this point. We think *that the said deed, was made with intent to hinder, delay, and defraud creditors, and that the grantee was cognizant of such intention.

We are also of opinion, that the Circuit court did not err, in directing a reference to a master, to ascertain and report what is the interest of Elisha G. Duncan, in the property conveyed by Isaac Hare to James H. French, in trust for the wife of said Duncan ; for the interest of said Duncan, whatever it may be, is liable to the plaintiffs’ judgment against him.

It now only remains to consider the question raised by the plaintiffs’ appeal.. And here we have more difficulty. James F. Hare, in his answer, says that when he purchased, from Edward Hale, he proposed that he would retain a lien upon the land for the purchase money; but Hale refused, and agreed to release the land, if he would give him personal security; and that he gave the personal security he required. That after the death of Edward Hale, he was negotiating the sale of the land to the trustees of Mrs. Wilmoth Hare, and in order to consummate the sale, he went to Giles Courthouse, and applied to James D. Johnston, executor of Edward Hale, to release the lien, and proposed to give additional security if he would do so; that Johnston as executor refused, but said he would consult Mrs. Hale; and that he soon returned, and said he had had an interview with her, and that she assented. This conduct of this defendant is remarkably incompatible with his alleged agreement with Hale. He afterwards attempts to explain it, by saying that the release of Edward Hale being only verbal, and there being no witness, he thought he would be unable to establish it after his death. But almost in the same breath he says, that Edward Hale directed George D. Hoge to have the conveyance made directly to him. Such proof would have tended strongly to prove his allegation, that Hale had agreed to release the land; but it was not produced, and no attempt is made *to account for its non-production. But if there had been such an agreement, and such proof to establish it, it is really surprising that he should have gone to the executor, and, without even mentioning such an agreement, and insisting upon it, have proposed to him to release the lien upon an entirely new consideration.

But the statement of this defendant, as to the result of the interview with the executor, and the assurances which he gave him of the consent of Mrs. Hale to release the land upon his giving the additional personal security he proposed, is wholly irreconcilable with the depositions of James D. Johnston, Albert G. Pendleton, Lorenzo Hale, and Mrs. Beatrice A. Hale; so that, if his answer positively negatived the allegations of the bill, and was directly responsive, and not merely affirmative matter which it was incumbent on him to prove, unsupported as it is by any evidence in the cause, it could not weigh as a feather against such a weight of testimony.

It does not appear, therefore, that Edward Hale agreed to release his recourse upon the land. And we think it is proved beyond all question, that Mrs. Hale did not, but that she positively refused to release the land; though she consented that additional personal security might be given, provided it should not prejudice her recourse upon the land, which she was not willing to surrender for any personal security. And, indeed,' she agreed with Mr. Pendleton, who appears in this matter to have acted as the counsel and agent of A. J. Hare and his wife, and their trustee, to allow the additional security to be given, only upon his assurance, that it would not prejudice her lien upon the laud, if she had any, but would rather strengthen it.

At the same time, it is very evident that Andrew J. Hare and wife, and their trustee, finally concluded the contract, accepted the conveyance which was made, and paid the purchase money, with perfect reliance upon the ^information and assurances they had received, that the deed would invest them with a good title, and that they were entirely safe in accepting it. And yet it is a plain inference, from the evidence, that they must have known that Mrs. Hale held James E. Hare’s bonds for the purchase money, and that she claimed a lien upon the land for their payment, which she was not willing to surrender. What was the ground of their reliance, unless it was the opinion of their counsel, which he intimated to Mrs. Hale, that she had no lien upon the land, there is nothing in the record to show. Nor is there anything in the record to show that Isaac Hare, in executing the deed of conveyance, did not act in perfect good faith, or that any culpability attaches to Mrs. Hale. If she had such a lien, or right of recourse upon the land, it is very evident that she did nothing to surrender it.

It is contended by the appellees, in the cross appeal, that no such lien existed. That is the only remaining question.

Before our statute, ch. 119, $ 1, p. 567 of Code, it was well settled, that a vendor who conveyed the land to the vendee had a lien upon it for the unpaid purchase money in the hands of the vendee, or a volunteer claiming under him, or purchasers for valuable consideration with notice. Where a conveyance is made now, by the statute, the lien is abolished, unless expressly reserved on the face of the conveyance. But when no conveyance is made, the case is not within the purview of the statute, and the law is the same as it was before the statute was enacted.

And in such case it is well settled that the vendor has recourse upon the land, notwithstanding the vendee gave personal or other security for the purchase money, and notwithstanding the subsequent purchaser, or incumbrancer, had no notice that the purchase money, or any part of it, was unpaid. Yancy v. Mauck & als., 15 Gratt. 300; citing Hatcher’s adm’x v. Hatcher’s ex’ors, 1 Rand. 53; and Lewis v. Caperton’s ex’or, 8 Gratt. 148.

*In Beirne’s ex’ors v. Campbell, 4 Gratt. 125, Campbell had but an equitable title, which he sold to Burke, and which Burke conveyed, with other lands, to trustees for the benefit of creditors. At the time of Burke’s conveyance the legal title was in Estill, which was afterwards conveyed, by the direction of Campbell, to Burke. At the sale by the trustees, Beirne became the purchaser of this tract. This court held that the land was chargeable in the hands of Beirne for the balance of purchase money due from Burke to Campbell, though he had obtained the legal title, and had no notice that purchase money was due to a previous vendor. That case, we think, goes very far in support of the lien of the vendor of an equitable title—much farther than it is necessary to go in this case, to enforce the lien of Edward Hale against the purchasers from his vendee, having notice of the purchase money due him, and that his representative insisted upon her lien, and refused to surrender it for any personal security, unless the mode of transferring the equitable title, by an assignment of the title bond, makes a difference. In this case it is not averred in the pleadings, nor proved in the cause, except by recital in one of the deeds, to which the appellee, Beatrice A. Hale, was not a party, that the equitable title of Edward Hale was transferred to James E. Hare, by the assignment to him of the title bond of Isaac Hare, under which Edward Hale, by assignment, held the equitable title to the land in question. But assuming that to be the fact, has the assignor a lien upon the land for the purchase money? It seems to be well settled, that one who sells an equitable right to land, retains a lien upon it for the consideration, when, under the same circumstances, the vendor of the legal title would have an equitable lien. The lien is recognized to the same extent in case of a sale of an equitable title as of a legal one. 1 Lead. Cases in Eq. side p. 270, top 363; Steward v. Hulton, 3 J. J. Marsh. R. 178. If the vendor had *sold the legal title, but had not conveyed, the land would have been charged with the purchase money, as we have seen, in the hands of a subsequent purchaser or incumbrancer, even without notice, and notwithstanding the vendor had taken personal security.

In Ligon v. Alexander, &c., 7 J. J. Marsh. R. 288, the case was this: Ogden, having title, executed a title bond for a piece of land to Ligón, who, having paid therefor, assigned the bond to Morgan, who assigned it to Alexander, with notice of the nonpayment of the purchase money due from Morgan to Ligón, and of the lien asserted by the latter on the land for its payment. The court held that the land in the hands of Alexander was bound for the purchase money due Ligón. The court says: ‘ ‘Before any assignor can have such a lien, he must show himself to have been the beneficial owner of the property by payment of the purchase money to his vendor. With this borne in mind, . there can be no difficulty in recognizing any number of distinct liens, from the first assignor to the last assignee of the bond. ” This decision is recognized in Gallway v. Hamilton’s heirs, &c., 1 Dana R. 576, (see also Stewart v. Hulton, 3 J. J. Marsh. R. 178,) in the following language: “This court has decided that the assignor of a bond for title to a tract of land is entitled to a lien on the land to secure the purchase money, notwithstanding the assignee has parted with the bond by transfer to another, provided he had notice of such lien.”

The case of Ligón v. Alexander strikinglj' resembles the case in hand; and it is supported by the well settled principle that the lien in case of a sale of an equitable title is recognized to the same extent as in the sale of the legal title, and is in harmony, except that it does not go as far, witn Campbell v. Beirne, supra, decided by this court.

We are therefore of opinion that the decree of the Circuit court is erroneous in holding that there is no lien *upon the land sold by Edward Hale to James E. Hare, and by him to Daniel Hale, trustee of Wilmoth Hare, for the purchase money due from James E. Hare to Beatrice A. Hale, widow and legatee of Edward Hale, deceased; and in dismissing the suit as to the defendants, Andrew J. Hare and wife, and her trustee, Eustace Gibson.

The court is also of opinion that the said tract of land is primarily liable to the payment of the said purchase money; and that,' although the decree is right in setting aside the deed from Isaac Hale 'to Isaac H. Day, as fraudulent and void as to' creditors, the said land can only be subjected to the payment of the purchase money which was due from James F. Hare' to Edward Hale for the land he sold him, and upon which he retained a lien for its payment, in case the same should be insufficient to satisfy the same, and then only for the deficiency. But inasmuch as there were other judgments against the said Isaac Hale, which charged the land, the decree is right in directing the same to .be sold.

We are of opinion, therefore, that the decree of the Circuit court should be reversed so far as it is herein declared to be erroneous, and in all other respects affirmed.

The decree was as follows:

The court, for reasons stated in writing and filed with the record, is of opinion that the decree of the Circuit court is erroneous in holding that the tract of land sold by Edward Hale to James E. Hare, and by him to Daniel Hale, trustee of Wilmoth Hare, is not chargeable with the purchase money due from James E. Hare to Beatrice A. Hale, the widow and legatee of Edward Hale, deceased; and in dismissing the suit as to the defendants, Andrew J. Hare and his wife, Wilmoth Hare, by her trustee, Eustace Gibson, with costs; and that' *there is no other error in said decree. It is therefore decreed and ordered, that said decree of- the Circuit court be reversed and annulled, so far as it is herein declared to be erroneous, and in all other respects affirmed; and Beatrice A. Hale, appellee in the appeal of Isaac H. Day, and the appellant in the cross appeal, recover her costs in this court: which is ordered to be certified to the Circuit court of Giles county, for further proceedings to be had therein.

. Decree upon Day’s appeal affirmed. Decree upon B. A. Hale’s, reversed.  