
    Lewisburg.
    M’New v. Smith.
    (Absent Brooke, J.)
    1. The Court at the suit of a judgment creditor, sets aside a sale by the debtor of personal property as fraudulent and void, and directs the purchaser to deliver the property to a commissioner, who is directed to sell it. The purchaser fails to deliver the property to the commissioner, and then the Court directs an account of its value in order to subject the purchaser for the amount. This is correct practice.
    2. Upon setting aside a conveyanee of real estate as fraudulent, at the suit of a judgment creditor, the Court can decree the sale of only one moiety of the land to satisfy the judgment.
    3. If a judgment debtor has conveyed away lands fraudulently, and retains other lands, the Court on setting aside the conveyance at the suit of the judgment creditor, should direct a sale of a moiety of the whole, embracing in the moiety decreed to be sold, the land not conveyed by the debtor, and taking only so much of the land conveyed as will, with the land retained by the debtor, constitute a moiety of the aggregate of the whole.
    4. In a suit by a judgment creditor to set aside fraudulent conveyances of property by his debtor, the judgment and execution being admitted by the pleadings, the failure to file copies of them in the cause, is not ground of reversal of the decree of the Court below, setting aside the conveyances; especially if no objection was taken in that Court to the failure to file them.
    In 1841, Francis Smith filed his bill in the Circuit Court of Washington, against George M’New, sr., George M’New, jr. and David M’New, in which he stated that prior to the year 1823. George M’New, sr. was indebted to him: That in that year said M’New executed to him his bond for the amount: That M ’New, sr. subsequently became farther indebted to him on account. That in the year 1835, M’New, sr. conveyed to George M ’New, jr. a tract of land of 166 acres, with intent to defraud complainant. That some time afterwards, George M’New, sr. with the same intent gave and conveyed to the said George M’New, jr. 
      all his personal estate. That George M’New, jr. participated in the fraud of his father. That complainant afterwards brought a suit against George M ’Neto, sr. for the amount of his debt, and recovered a judgment; and that an execution of fieri facias issued thereon was returned by the sheriff li no effects.” That David M’Neio had been for some years living upon a part of the tract conveyed to George M ’New, jr., which he claimed under some pretext as belonging to him, but which was also fraudulent. He therefore prayed that the said real and personal estate might be sold for the payment of his debt.
    The defendants, George M’New, sr. and jr., answered the bill, denying the fraudulent intent: M’New, jr. saying that he had never heard of the indebtedness of his father to the complainant until years after the conveyance to himself. They both stated that George M’Neio, sr. and his wife being near eighty years old, and very helpless, on George M ’New, jr., who was their youngest son, coming of age in 1827, a parol contract was made between the father and son, by which the father agreed to convey to the son the tract of land on which he lived, in consideration that the son would support the father and mother for their lives, and pay about the sum of 200 dollars, which the father still owed for the purchase money of the land. That although the whole tract of one hundred and sixty-six acres was conveyed to George M’New, jr., he was to convey about sixty acres of it, included within certain boundaries, to David M’New, who had purchased from his father years before, and had been put into possession thereof, and had ever since occupied it. That after the conveyance to George M’New, jr., the father owned other land and personal property, more than sufficient to pay the complainant’s debt. And George M’New, jr. said that his contract had proved to be a hard one. That as to the personal property, he had purchased and paid for it.
    
      
      David M’Neio also answered, stating that he purchased the land occupied by him, and paid full value therefor: And this was sustained by the proof.
    A copy of the complainant’s judgment and execution was not g[e(j jn {^0 cause, but they were admitted in the answers, and no objection on that ground seems to have been taken in the Court below. It appeared from the proofs in the cause that George M ’New, sr. and his wife were old and helpless. That George M ’New, jr. had lived with them from the time of his coming of age in 1827; and probably managed the farm; but it certainly was not very clear that he paid any money for his father; as though a part of the purchase money due for the land had been paid, it appeared that George M’Neio, sr. made money by a wagon and team which he owned, and the principal payment was by a debt due to himself for work done with his wagon and team. There was also proof that George M’New, sr. owned twenty-five acres of land in the county of Washington, near Saltville. The consideration expressed in the deed of the 20th of April 1835, was natural love and affection, and one dollar; and the consideration for the personal property was stated by the parties to be a debt due from George M’New, sr. to George M’New, jr.
    
    The cause came on to be heard on the 22d of October 1842, when the Court made an interlocutory decree by which the sale of the personal property by George M’Neio, sr. to George M’New, jr. was declared to be fraudulent; and George M’New, jr. was directed to surrender the said property to Charles C. Gibson, who was appointed a commissioner, and directed to sell the same, having first advertised the sale in the manner prescribed by law in case of sales of such property by sheriffs on execution, and apply the proceeds in part payment of complainant’s judgment.
    It was also declared that the deed of the 20th of April 1835 was fraudulent and void as to the complainant; and it was decreed that unless George M’New, sr. should on or before the 15th day of December 1842, pay to the complainant the full amount remaining due of his judgment, that the same commissioner should sell the land conveyed by said deed, (except the sixty acres sold to the defendant, David M’Neio,) on a credit of six, twelve and eighteen months. And the bill was dismissed as to David M’New.
    
    On the 14th of May 1844 the cause came on again to be heard, when it appearing by the report of the commissioner, that the land had been sold, and had been purchased by the complainant for 450 dollars, which was less than the amount of his debt, the Court made a decree confirming the sale, and directing the commissioner to convey the land to the purchaser. And it further appearing that George M’New, jr. had failed to surrender the personal property to the commissioner in obedience to the former decree, a commissioner of the Court was directed to ascertain the value of said property at the date of the transfer thereof to the said defendant, and make report thereof to the Court. From these decrees George M’New, jr. applied to this Court for an appeal, which was allowed.
    
      Patton and Logan, for the appellant.
    
      B. R. Johnston, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that there is no error in so much of the interlocutory decree of the 22d October 1842, as determined that the sale of the personal property made by George M’New, sr. to George M’New, jr. on the 9th October 1840, was fraudulent and void; and decreed that said G. M’New, jr. should surrender said personal property to a commissioner for the sale thereof. And it appearing by the decree of the 14th May 1844, that said G. M’New, jr. had failed to surrender said personal property in obedience to the said decree, the Court is further of opinion that there is no error in so much of said decree of the 14th May 1844, as directed an account to be taken of the value of said personai property.

The Court is further of opinion, that there was no error in so much of said interlocutory decree of the 22d October 1842, as dismissed said bill as against said David M’New: nor in determining that the deed from said G. M’New, sr. to G. M’New, jr., bearing date the 20th April 1835, was fraudulent and void as against the complainant.

But the Court is of opinion, that so much of said interlocutory decree of the 22d October 1842, as directed a sale of the whole of said land, and so much of the subsequent decree of the 14th May 1844, as confirmed the sale thereof, made in pursuance of said interlocutory decree, and directed that the commissioner make a conveyance thereof to the complainant, who was the purchaser, is erroneous. This Court being of opinion, that where a creditor, standing on the lien of his judgment alone, comes into a Court of Equity to remove an obstruction interposed by a fraudulent conveyance in the way of his remedy at law against the legal estate of the debtor, a Court of Equity cannot enlarge his rights so as to reach property not liable at law: the most it has done in such cases, is to expedite his remedy by decreeing a sale of the moiety. Stileman v. Ashdown, 2 Atk. R. 477; same case, same book 607; Haley v. Williams, 1 Leigh 140; M’Clung v. Byrne, 10 Leigh 394.

The Court is further of opinion, that as the answers allege, and there is some proof tending to shew that the debtor was seised and possessed of a tract of 25 acres of land near Saltville in said county, which would have been first liable to said judgment, an enquiry should have been directed, before a decree for sale, to ascertain the fact, and leave given to the plaintiff to amend his bill, to charge said land if owned and possessed by the debtor; and a moiety of the whole land, including (except the sixty acres sold to said D. M’New,) any other lands owned by the debtor, should have been decreed to be sold, embracing in the moiety so decreed to be sold all the land not conveyed by the debtor, and taking only so much of the land conveyed as would, with the land aforesaid, constitute a moiety of the aggregate of the whole.

The Court is further of opinion that as the judgment and execution are admitted by the pleadings, the failure to file copies would not, standing alone, be a ground of reversal, especially as it does not appear that any objection on this account was made in the Court below.

It is therefore adjudged, ordered and decreed, that so much of said two decrees of the 22d October 1842, and 14th May 1844, as is herein declared to be erroneous, be reversed and annulled, with costs to the appellant; and that the sale of said land be set aside.

And it is further adjudged and ordered, that so much of said decrees as is herein declared not to be erroneous, be and the same is hereby affirmed. And the cause is remanded for further proceedings, in order to a final decree, according to the principles hereinbefore declared.  