
    Jones &c. v. Myrick’s Ex’ors. Myrick’s Ex’ors v. Epes & als.
    October Term, 1851,
    Richmond.
    (Absent Cabeli,, P.)
    1. Forfeited Forthcoming; Bond — From What Time a Lien on Land  — A forthcoming bond forfeited has the force of a judgment so as to create a lien upon the lands of the obligors, only from the time the bond is returned to the clerk’s office.
    2. Same-rPresumption as to Return. — There being no evidence that the bond was returned to the clerk’s office before the day on which there was an award of execution thereon by the Court, it will be- regarded as having been returned to the office on that day.
    3. Same — Judgment by Confession — Priority.—A judgment confessed in Court in a pending suit and the oath of-insolvency taken thereon by the debtor upon his surrender by his bail, has relation to the first moment of the first day of the term; but a * forfeited forthcoming bond which is not returned to the clerk’s office until some day in the term after the first, when there is an award of execution thereon, has no relation; and therefore the assignment by operation of law under the first has preference over the lien of the forthcoming bond.
    4. Same — Obligors Insolvent — Equity Practice.— Though a forthcoming bond is forfeited, and not quashed, yet in equity the lien of the original judgment still exists; and if the obligors in the bond prove insolvent, so that the debt is not paid, a Court of law will quash the bond so as to revive the lien of the original judgment. And a Court of equity, having jurisdiction *of the subject, will treat the bond as a nullity, . and proceed to give such relief as the creditor is entitled to under his original judgment.
    5. Sale of Lands Subject to Lien — Order of Liability between Alienees. — Lands subject to a judgment . lien which have been sold or encumbered by the debtor, are to be subjected to the satisfaction of the judgment in the inverse order in point of time of the alienations and incumbrances: The land last sold or encumbered being first subjected.
    
      6. Same — Same—Waiver of Right against Alienee Primarily Liable — Effect.—A judgment creditor having by his conduct waived or lost his right to subject the land first liable to satisfy his judgment, is not entitled to subject the lands next liable for the whole amount of his judgment, but only for the balance after crediting thereon the value of the land first liable.
    
      7. Decree — Conclusion as to Judgment Creditor  — Case at Bar.— A judgment creditor having the prior lien on the lands of his debtor, flies a bill against his debtor and other creditors having incumbrances on his debtor’s lands. Pending this suit another creditor of the same debtor flies a bill against him and his creditors, and among them the judgment creditor, seeking to subject the lands under his lien; and in this suit the proceeds of the whole lands which were sold by the sheriff under the insolvent laws, or by the trustees in the deeds, are distributed by the decree of the Court to other creditors. The judgment creditor after-wards matures his suit and brings it on for hearing.
    Same — Same—Same.—HEM): That the decree in the other cause concludes him, so that he is not entitled to recover from the creditors who received them, the proceeds of the land sold by the sheriff; nor is he entitled to have the land sold, as against the purchaser thereof.
    On the 24th of June 1828 John Myrick instituted a suit in the late District court of chancery at Richmond, against William D. Epes and others, the creditors of Epes. The bill was filed at the following August rules, and charged that at the September term of the Superior court of Nottoway county, in the year 1827, he recovered a judgment against Epes for 1160 dollars 1 cent, with interest thereon from the 12th of May 1827, and 7 dollars SI cents costs. That an execution issued on this judgment and was levied, and a forthcoming bond was given by Epes with Samuel G. Williams and Joseph G. Williams as his sureties; and was forfeited. That this bond bore date the 2Sth of October 1827, *and was forfeited on the first Thursday in December following. That a judgment was obtained on this forthcoming bond at the April term of the Superior court in 1828; but that both principal and sureties were insolvent.
    The bill further charged that at the time of executing the forthcoming bond Epes was possessed of several tracts of land in the county of Nottoway, in all but one of which he had but a life estate; that was a tract of eight hundred acres on which he resided; and that he also owned a tract in the county of Dinwiddie in which he had a life estate. And that when the forthcoming bond was forfeited there were no other liens on the land than that created by the forfeiture of the bond. That Epes was very much embarrassed, and from the 14th of February 1828 to the 25th of April, he executed five several deeds of trust which were recorded anterior to the April term of the Superior court. And that at the April term of the Court Epes took the oath of an insolvent debtor in several cases.
    The bill further stated that the deed conveying the Dinwiddie land was not recorded until two days after the oath of insolvency had been taken by Epes; and that this land had been sold and conveyed by the sheriff to satisfy the judgments on which Epes had taken the oath of insolvency. That although the plaintiff’s lien was prior to that under which this land was sold, yet he was not disposed to interfere with said land if he could be decreed his money, to be raised from the other tracts, as they would produce much more than sufficient for this purpose; and as to this matter he submitted to the Court to decide as equity should dictate.
    The bill further charged that an execution issued on the judgment recovered on the forthcoming bond aforesaid which went into the hands of the sheriff of Dinwiddie, whose return thereon was referred to as shewing that the plaintiff was entitled to have the slaves ^'mentioned therein subjected to the satisfaction of his debt, the sheriff returning that he had seen the slaves and endeavoured to levy upon them, but that they had run from him and hid themselves, and had gone into the county of Nottoway. That at the same term of the Superior court of Nottoway the plaintiff had recovered another judgment against Epes, that an execution was'issued thereon which went into the hands of the sheriff of Dinwiddie, and the same return was made upon it as upon the other, except that a part of the money was made. That the slaves mentioned in the return of the sheriff on these executions were not embraced in any deed recorded in Dinwiddie county before the executions went into the hands of the sheriff of that county, in which the slaves were living at the time. That the slaves were therefore liable to satisfy the plaintiff’s debts; if not in preference to those creditors at whose suit Epes took the oath of insolvency, certainly he will be entitled to any balance arising from the sale of these slaves, towards the satisfaction of his said executions, and in the first place to the satisfaction of the balance due on the latter.
    The bill made William D. Epes, the trustees and creditors in the several deeds, and the creditors at whose suit the insolvent debtor’s oath was taken by Epes, defendants, and prayed for a sale of the lands to satisfy any prior liens; that the slaves too might be sold, and the proceeds distributed according to the rights of the parties; and that as the creditors at whose suit Epes took the oath of insolvency, had obtained the proceeds of the land in Dinwiddie, that the plaintiff’s small judgment might be satisfied out of the proceeds of the slaves; and for general relief.
    Of the deeds executed by William D. Epes, one bore date the 14th of February 1828, and by it he conveyed to Francis Epes the tract of eight hundred acres of land in the county of Nottoway, of which he owned *the fee, and a number of slaves, in trust to secure David G. Williams and Edward Bland, as his endorsers upon a note for 4300 dollars, discounted- at the Bank of Virginia at Petersburg. Another deed bore date the 25th of April 1828, and by it William D. Epes conveyed to Bartelot P. Todd another tract in the county of Nottoway containing four hundred and eighty acres, and the tract in Dinwiddie containing twelve hundred acres, in both of which he held but a life estate, and also a number of slaves, in trust to secure to Archer Jones the payment of a debt of 4420 dollars. And another deed bore the same date, by which William D. Epes conveyed to the same trustee his crops on hand in Nottoway and Dinwiddie, and also the growing crops, with his household and kitchen furniture, stock, &c., and a tract of seventy-five acres of land in which he held a life estate, to secure a debt of 366 dollars 50 cents, due to Edward Bland, and to indemnify Erancis Epes as his surety to the amount of 3940 dollars. A fourth deed was of the same date, and conveyed to Todd any balance that might remain in his hands of the proceeds of the property conveyed to secure the debt due to Archer Jones, after the payment of that debt, in trust to secure a number of his creditors among whom was John Myrick. All these deeds were lodged with the clerk of the County court of Not-toway on the 26th of April, to be recorded.
    The Superior court of Nottoway seems to have commenced its term on the next day; and on the 28th William D. Epes was surrendered into custody by his bail in six several actions pending against him in that Court, and he thereupon took the oath of an insolvent debtor, and was discharged. On the same day the plaintiff Myrick obtained an award of execution on the forthcoming bond which had been taken upon his execution against Epes, and at the same term he recovered a judgment against Epes for 262 dollars 62 cents, with ^interest and costs. On the first of these executions the sheriff of Dinwiddie returned that he went to the plantation of Epes in the county of Dinwiddie, on the 3d of May, when he saw several slaves whom he named in his return; and that he exerted himself to levy the execution upon them; but that they all ran for the woods and secreted themselves, so that he could not find them. '
    The deed conveying the land in the county of Dinwiddie to secure the debt due to Archer Jones, was not recorded in that county until after Epes had taken the oath of insolvency. The sheriff therefore proceeded on the 2d of July 1828, to' sell the life estate of Epes in the land, when Jones became the purchaser at the price of 753 dollars 75 cents net; and it was conveyed to him by the sheriff. It was after this sale and conveyance that the bill of the plaintiff was filed.
    The only defendant who answered the bill was David G. Williams, who was the surety secured by the first of the before mentioned deeds. He, whilst he admitted the facts stated in the bill, denied that the plaintiff had a lien upon the property real or personal, conveyed to indemnify him. He insisted that there was no lien bj’ force of a judgment where there was no capacity to take out an execution; and that consequently the plaintiff lost his lien on the lands of Epes when the forthcoming bond was executed, which, although it is declared by the statute that it shall have the force of a judgment, was nevertheless a judgment on which an execution could not issue until it was awarded by the Court: And before that time the deed conveying the eight hundred acres of land for the indemnity of the respondent had been executed and recorded.
    In June 1832, the plaintiff Myrick died, and the cause was revived in the name of his executors: And on their motion the case was transferred to the Superior court of Nottoway county. In April 1833, the cause ‘came on to be heard in that Court, when a commissioner was directed to ascertain and report the yearly value of the lands in which William D. Epes was interested at the date of the delivery bond referred to in the bill; and also at the time the original judgment was obtained.
    The case seems to have slept from that time until April 1839, when it was again heard, and the Court being of opinion that the delivery bond and judgment thereon operated as a lien on the lands owned and unincumbered by William D. Epes, at the date of the forfeiture of the bond, directed a commissioner to enquire into and report the amount of the sales of the real estate of Epes, owned by him and not incumbered at the date of the forfeiture of the bond, the time when the said lands were sold, to whom sold and conveyed, and the prices at which each tract was sold, to whom the purchase money thereof was paid, and the proportion paid to each. A report was made by a commissioner in obedience to this order, but it-is not in the record.
    Before a final decree was made in this case, the record of a cause which had been finally decided in the same Court, was filed. This was a case in which Francis Epes in his own right, and as administrator of Thomas R. Epes, and Samuel Scott, as executor of John F. Epes, were plaintiffs, and William D. Epes and the- trustees and creditors in his several deeds, were defendants. The plaintiffs claimed as sureties, or representing sureties, of William D. Epes, in a bond which had been transferred to Joseph Cooper, one of the creditors at whose suit William D. Epes had taken the oath of insolvency; and they alleged that Francis Epes, and Scott as executor of John F. Epes, had been compelled to pay the debt; and asked to be substituted to Cooper’s rights. The defendants among whom was John Myrick, answered and contested their right to be substituted to the rights of Cooper: And Myrick stated *the fact that he had obtained two judgments against William D. Epes at the same term at which he had taken the oath of insolvency ; and he also stated the facts as to the issue of the executions, and the return of the sheriff thereon. And he claimed to have decreed to him the amount arising from the sale of the slaves made by the sheriff of Nottoway, after satisfying the claims which had preference to his under the assignment of William D. Epes on taking the oath of insolvency.
    This case was finally decided in 1834, when the Court distributed the proceeds of the Dinwiddie land, 753 dollars 75 cents, and of the slaves sold by the sheriff of Not-toway, 1099 dollars 86 cents, among the creditors at whose suit William D. Epes had taken the oath of an insolvent debtor.
    The record of this suit also shewed that all the lands conveyed by William D. Epes, except the Dinwiddie land, had been sold by the trustees, and the proceeds distributed. The Dinwiddie land was sold by the sheriff, and its proceeds distributed as before stated. It appeared that the proceeds of the sale of the tract of eight hundred acres had been paid to D. G. Williams, by the trustee Erancis Epes; that Todd had paid to Archer Jones and to Erancis Epes, the proceeds of the lands conveyed for their benefit, except the Dinwiddie land.
    The cause came on to be finally heard in October 1845, when the , Court being of opinion that the Dinwiddie land, having been sold by the sheriff of said county, under the schedule of said William D. Epes, before the institution of this suit, and the purchaser thereof not having been made a party, no recovery could be had for the said land, or the proceeds thereof in this cause. And being of opinion also, that the plaintiff had waived his right to the sum of 753 dollars 75 the of said land, and had no right to *call upon the defendants to pay said amount, on account of the lands sold for their benefit under the deeds of trust exhibited with the bill; and the Court being further of opinion, that the defendants Archer Jones and Erancis Epes were liable on account of the lands purchased by them under the deeds made by William D. Epes for their benefit, before the defendant D. G. Williams could be called upon on account of the land sold under the deed of trust for his benefit; the deeds of said Jones and Erancis Epes being of posterior dates, decreed that the defendant Jones should pay to the plaintiffs the sum of 906 dollars 68 cents, with interest on 426 dollars IS cents, part thereof, from the 2d day of October 1845, until paid; and that the defendant Erancis Epes should pay to the plaintiffs the sum of 217 dollars 3 cents, with interest on 116 dollars 25 cents, part thereof, from the same date; and that they should pay to the plaintiffs their costs, provided Erancis Epes should not be required to pay more than 17 dollars 81 cents, or Jones more than 67 dollars 9 cents, which sums remained in their hands after paying the amounts above decreed to the plaintiffs. Erom this decree, both the plaintiffs and Jones and Erancis Epes applied to this Court for an appeal, which was allowed.
    The case was argued in writing by' Gholson and James Alfred Jones, for Jones and Epes, and by Spooner, for Myrick’s executors.
    Eor Jones and Epes.
    Eirst. If Myrick’s executors succeed at all, it must be by force of the lien of the forfeited forthcoming bond.
    They do not claim any lien under the original judgment. On the contrary they found their claim entirely on the bond: which they do not object to as faulty, but set up as good. They set forth in their bill, that, x'on the original judgment, a fi. fa. was issued, and “duly levied,” that “a forthcoming bond was duly executed by W. D. Epes, Joseph G. Williams and Samuel G. Williams, and the said bond was duly forfeited, on the first Thursday in December 1827;” and they exhibit copies of the fi. fa. delivery bond, and judgment on the bond, which, they say, was obtained at April term of the Superior court in 1828. They set forth the amount of the judgment on “the delivery bond,” and insist that for this amount they have a lien on the lands of W. D. Epes, by reason of their “judgmentaforesaid” (i. e. on the delivery bond); which has priority, they say, over the deeds of trust.
    The very main object of the suit was to get the benefit of the forthcoming bond. The plaintiff was not content to take merely the amount of the original judgment. It is very clear, then, that in this suit the Court cannot proceed to quash the forthcoming bond as faulty, and enforce the lien of the original judgment.
    In the Court below, the plaintiffs did not ask it; — it was inconsistent with their bill to ask it; the defendants had no notice that any such thing would be asked, that they might come forward and resist it; and the Court not pretending to quash the bond, enforced the lien claimed under it, and gave a decree for the full amount of the bond.
    The forthcoming bond then remaining unquashed, the original judgment is so far satisfied that no new execution could issue on it. Taylor v. Dundas, 1 Wash. 92; Downman v. Chinn, 2 Wash. 189; Garland v. Eynch, 1 Rob. R. 545. And no lien can be claimed by virtue of it, since the lien of a judgment is a mere consequence of the right to sue out an elegit. United States v. Morrison, 4 Peters’ R. 124. The executors then are remitted to, and must depend entirely on the lien of the bond.
    *In the bill it is alleged that the bond was forfeited on 1st Thursday in December 1847, but not that it was returned to the clerk’s office. They set forth the judgment on the forthcoming bond, which appears to have been rendered on the 28th day of April 1828.
    But where the bond was in the meantime, whether in the clerk’s office, or with the sheriff or the plaintiff who had the right to demand it of him, 1 Rev. Code 531, (j 17, is not alleged and does not appear. It is argued by the counsel of Myrick’s executors that the fact of the return of the forthcoming bond to the clerk’s office before the recordation of the deeds of trust sufficiently appeared on the record, and the reasons given to'prove it, are that the sheriff was bound under a penalty to return the bond on the return day of the execution; that in fact it was in Court on the first day of April term 1828, that a copy of it was made by the clerk and filed in this cause; and that no objection was made in the Court below that the bond was not returned to the clerk’s office according to law.
    These reasons are quite unsatisfactory.
    In the first place, the sheriff is not bound to return the bond to the clerk’s office. He may deliver it to the “creditor; his agent or attorney, or other legal representative,” 1 Rev. Code S31, 'i 17, and whatever may be his duty, it is known to the practitioner in Virginia, that the habit of many sheriffs is to retain the forthcoming bonds until Court, that they may give the notices of the motion for award of execution.
    In the next place, the fact that the bond was in Court on the first day of the April term 1848, does not shew where it was before that time. Nor does the fact that a copy was made by the clerk, and filed in this cause, shew anything more than that, at the time when the copy was made, which was long since these transactions took place, the bond was in the office.
    *Nor can anything be inferred from the failure of the appellants to appear in the Court below and object that the bond was not returned to the office before their deeds were delivered there. It was not for them to deny what the plaintiff in his bill did not allege. They had no notice that it was pretended that the bond was returned to the clerk’s office before Court, or that any benefit was claimed therefrom. The plaintiff can claim the benefit of the admission of the facts alleged, and none other. It is submitted then, that it by no means appears in the record that the forfeited forthcoming bond was returned to the clerk’s office before the deeds were recorded.
    But, suppose it did, it is admitted by the counsel that there is not an allegation in the bill that the bond was so returned; and this is plain enough on the face of the bill.
    If the fact be material, the omission of the averment in the bill is fatal and cannot be supplied by proof.
    Is it then a material fact in this cause that the forfeited forthcoming bond should have been returned to the clerk’s office before the deeds of trust were recorded.
    And this turns on the enquiry when a forthcoming bond creates a lien on the land of the obligors. Is it as soon as forfeited, or is it only after being forfeited and also returned to the clerk’s office? Or is it even then until execution has been awarded on it?
    If the lien is created as soon as the bond is forfeited, then the fact of the return to the clerk’s office is not material, and need not be averred; otherwise it is.
    The lien of a judgment is a mere consequence of the right to sue out an elegit on it and extend the debtor’s lands.
    When may an elegit be sued out on a forthcoming bond? Only after award of execution by the Court, made upon motion after notice. Can the lien, which is the mere consequence of the right to sue the elegit, *exist before the right to sue the elegit exists? It is submitted not. And that if it were conceded that the forthcoming bond had the force of a judgment as soon as forfeited, yet it lacks the quality of a judgment essential to create a lien on lands.
    In the language of Tucker, J., in Lipscomb’s adm’r v. Davis’s adm’r, 4 Leigh 303: “Admitting, however, that the bond has to some intents the force of a judgment as soon as it is filed, I think it obvious it has not all the effect of a judgment until there has been an award of execution. No execution can be sued out at the mere will of the party; the authority of the Court must first be obtained by motion.”
    But has the bond the force of a judgment to any intent until it has been returned forfeited to the clerk’s office? Neither the terms nor the objects nor the policy of the law favour such a conclusion.
    The sheriff is to return 1 ‘the bond to the office of the clerk of the Court, whence the execution issued, to be there safely kept, and to have the force of a judgment,” i. e. in order to be there safely kept and have the force of a judgment; for the purpose of being there safety kept and having the force of a judgment. To the argument that the provision as to the return is merely directory to the sheriff, the reply is that the whole proceeding is the proceeding of the sheriff, and for it to have the effect given to it by the law, he must proceed according to law. It is a summary extraordinary proceeding given by statute, and all the provisions of the statute should be complied with to make it valid. If it had been elsewhere declared that the bond should, when forfeited, have the force of a judgment, and then been added that the sheriff should return it to be safely kept and have the force of a judgment, there would be more reason to contend that the provision as' to the return and safe keeping was merely directory. But the only words of the law giving . the character of a judgment *to the bond are those quoted. They follow the provision requiring the return; and there exists between them the relation of an act and its consequence.
    And the object of the law was not merely to give the effect of a judgment to the bond.
    If the creditor preferred it, the law provided that he might take the bond himself, 1 Rev. Code 531, 1 17, that he might use it as he pleased. That, if he pleased, he might treat it as a common law bond, and sue on it and hold the obligors to bail and have the other privileges of a bond creditor, that do not belong to a judgment creditor. This was the object, and not to convert the bond into a judgment the moment it was forfeited.
    The policj' of the law too in respect to third persons, is averse to creating judgments with their unknown liens and preferences out of these private bonds. Read the remarks of Tucker, J., in Lipscomb’s adm’r v. Davis’s adm’r, 4 Leigh 303. Hence our recording acts and our act for •docketing judgments, which are in striking contrast with this rule of construction giving a bond in the pocket of the sheriff or creditor the full effect of a docketed judgment.
    The counsel of Myrick’s executors has cited the law, as it now is, under the new Code, to shew that the opinion of the re-visors as to the import of this provision was in support of their proposition. But it seems to be clearly against it.
    By the new Code, “the clerk shall endorse on the bond the date of its return, and against such of the obligors therein, as may be alive, when it is forfeited and so returned, it shall have the force of a judgment.” Under the law, as it is in the Code, the bond is not to have the force of a judgment, even after forfeiture, and return, unless the obligor is alive at the return. If he dies after the forfeiture, and before the return, the bond has not the force of a judgment. How then can it be *said, that from the forfeiture the bond has the force of a judgment?
    The apprehension expressed by counsel, ■“that judgment debtors and securities in forthcoming bonds might play a deep and ruinous game by making and recording deeds in the interval between the forfeiture and return of the bond,” is quite unwarranted ; since the creditor has the right to demand the bond of the sheriff and majT return it himself.
    This view of the statute leads to the conclusion that a forfeited bond has not the force of a judgment in any respect until returned to the clerk’s office; nor even then the force of a lien until there is an award of execution. And therefore that the averment was material, that the bond had been returned when the deeds were lodged for recordation, and also that there had been an award of execution on it: neither of which averments having been made the bill is materially defective and should be dismissed.
    Secondly. There have been some fluctuations in the decisions, as to the question, whether alienees of land under the lien of a judgment shall contribute pro rata, or in the order of their purchases. If they contribute pro rata, the preference to Williams was wrong.
    But, if it be conceded that the land last sold is to be first applied to the satisfaction of the judgment, the rule does not justify the preference given to Williams over Jones and Epes.
    When the contest is between several deeds of trust, it isa misapplication of it to refer for the preference to the dates of the deeds. Applying the rule, with just regard to the | recording acts, we are to look, in determining the question of preference, to the time of the delivery of the bonds to the clerk to be recorded, after due acknowledgment, proof or certificate.
    The act declares that “all deeds of trust and mortgages, whensoever they shall be delivered to the clerk *10 be recorded, and all other conveyances, &c., shall take effect and be valid, as to all subsequent purchasers for valuable consideration without notice, and as to all creditors, from the time when such deed of trust or mortgage or such other conveyance shall have been so acknowledged, proved or certified and delivered to the clerk of the proper Court to be recorded, and from that time only.”
    Now, under the act, the deed of trust first recorded, is the first to “take effect” and become “valid” as to the creditors, that is, the deed first recorded first passes the property of the debtor as against the creditor. And the land embraced by the deed first recorded, is really the land first aliened; and the land embraced by the deed last recorded, is last aliened, and therefore under the rule to be first applied to the satisfaction of the judgment.
    The statute fixes the date of the alienation. Equity requires the alienees to pay successively, in the order of their respective alienations.
    The rule of equity is thus preserved without frustrating the policy of the statute.
    This too is in analogy to the law of executions. Suppose the creditor should choose to proceed by ca. sa. to make his debt instead of suing his elegit. The land embraced by a deed recorded would be exempt. That embraced by a deed unrecorded, though prior in execution, would go to satisfy the debt.
    But if, without reference to the recording of the deeds, the deed last executed must satisfy a judgment lien before one first executed, why does not equity force the last alienee to exonerate the first from the judgment debt, notwithstanding the creditor has chosen to make it by ca. sa.? It is certainly a very ill defined and unsatisfactory equity, as between the several alienees, which depends entirely on the caprice of the judgment creditor, in the choice of his execution: so that if he *'sues his elegit one alienee pays, if he sue his ca. sa. another pays.
    Very inconsistent consequences will flow from disregarding entirely the recording acts in enforcing the lien of judgments on several alienees.
    This case furnishes an illustration. The Court held that the proceeds of the Din-widdie land, 753 dollars 75 cents, were first of all liable to Myrick’s lien. Why? Because those proceeds were from lands acquired by the sheriff under the assignment in insolvency, subsequent to the alienation of the other land. He was the last alienee, having no privity with the vendee under the unrecorded deed, but taking in despite of his deed, immediately under the debtor.
    
      It was right that his land should be first subjected. But suppose the deed of trust embracing this Dinwiddie land had been antecedent to the other in date. According to the principle proceeded on by the Court, this deed being antecedent, would shift the lien from this land on the other lands. The lien attached to the other land to the relief of this.
    Then when the sheriff took it, he would take it with the lien shifted off. And it would be wrong to hold that the proceeds of the land in his hands, were first of all, liable to the lien. They in fact would not be liable at all, until the other lands were exhausted. And thus, although last aliened, his land would be relieved from the lien, by the lands previously aliened.
    This violation of the rule of equity results from holding the unrecorded deed valid against the judgment lien, while it is void as to a ca. sa. execution.
    It would have been a striking result, in this case, if, when William Dandridge Upes took the oath of an insolvent debtor, the deed of trust, made for the benefit of Williams, had, like the deed embracing the Dinwiddie land, been unrecorded. The land embraced by it would have passed to the sheriff and Williams would have lost it.
    *Then would the judgment lien have been satisfied first, out of this land, together with the Dinwiddie land, or first, out of the land conveyed to Jones and Upes?
    The Court below would have held and held properly, that the land in the sheriff’s hands must first be applied to satisfy the lien, because he would be the last alienee. But if as between Williams on the one hand, and Jones and Upes on the other, their relative responsibility for the lien in consequence of the land they took, was settled at the date of their deeds, so that the land of Jones and Upes was bound to pay before Williams’s land, how could their land be relieved of this obligation and the same be shifted on Williams’s land by the mere act of third persons? So that the rule of equity would require the judgment creditor to extend the land conveyed for Williams’s benefit, or the lands conveyed for Jones and Upes, not as his deed or their deeds might be first recorded, in conformity with law, but as the judgment debtor might chance to be driven to the oath of insolvency or not.
    These inconveniences are easily obviated if, in the application of the rule, Courts of equity shall consider no land aliened by deed of trust quoad creditors, until the alienee has used the means prescribed by law to make his deed take effect and be valid as to creditors, but remaining in the same plight as to their rights and liens as if the vendor still held it.
    If then the rule be that the land last sold is to be first applied to the satisfaction of the judgment, it is submitted that it is to the time when delivered to the clerk to be recorded and not their date, that we must look to determine when lands are aliened by deed .of trust; and in this case, as the deeds were delivered on the same day to the clerk, that the beneficiaries under them ought to contribute in proportion to what they severally received.
    *MYRICK’S EX’ORS v. JONES & EPES.
    Thirdly. That portion of the decree which relieves these lands conveyed in trust for Williams and Jones and Upes, from 753 dollars 75 cents of Myrick’s debt, seems to be quite defensible.
    It is enough to know that, in .the case of Upes and Scott v. Upes and als., in which Myrick was a party, the question of the disposition of the proceeds of this land was decided, that Myrick appeared, and, without pleading in abatement the pendency of this suit, insisted on his right to those proceeds, by reason of his two judgments, and that a decree was made disposing of those proceeds, which remains unreversed.
    So far as the disposition of those proceeds is concerned, it is too late now for Myrick’s executors to complain of it or seek to change it.
    Nor can they ask, with any propriety, to set aside the sale to Jones. They acquiesced in that sale ■ in the suit of Upes and Scott v. Upes and als. and claimed the benefit of it¡ insisting on a share of the proceeds. And, in this suit, they set forth that sale; and, instead of making the purchaser a party as purchaser, and seeking to set aside the sale, they omit to do it, and again claim the benefit of the sale; praying that they may be allowed a proper amount “of the proceeds of the sales of said land,” in part of another judgment of theirs, which they affirm operated a lien on the Dinwiddie land.
    It is too late then to have the sale set aside.
    The enquiry then remains, whether My-rick’s executors had a right to charge the 753 dollars 75 cents, or any part of it, on the lands conveyed in trust for Williams and Jones and Upes. And this question depends on another, whether the Dinwiddie land, the proceeds of which amounted to 753 dollars 75 cents, was first liable. If so, a Court of equity will turn them over to it. *Clowes v. Dickenson, 5 John. Ch. R. 235. ’ That land was conveyed by William Dandridge Upes in trust for the benefit of certain creditors; but the deed was not recorded in Dinwiddie, where the land lay, until he took the benefit of the insolvent debtor’s oath. The deed then never took effect as to creditors.
    Nor did the sheriff claim under it, but paramount to it,' and by virtue of the assignment in insolvency. This assignment in insolvency to the sheriff was posterior to the execution and recording of the several deeds in trust for WTilliams and Jones and Upes. If then alienees are to pay in the order of their deeds, this Dinwiddie land being last assigned must be first applied to the satisfaction of Myrick’s judgment; and the Court did right to turn his executors off from the lands first aliened, to the extent of the value of this land, 753 dollars 75 cents.
    Whether or not as between other alienees, the rule obtains that the elder is preferred to the junior, it would hardly seem questionable that, as between a prior alienee and a subsequent assignee in insolvency, the alienee would be preferred. For the assignee stands precisely in the shoes of the debtor; taking his property exactly in the plight he held it. And the land in the hands of the debtor, is always to be extended in satisfaction of the judgment before the land he has aliened.
    For Myrick’s executors.
    As Jones and Epes obtained the first appeal, it seems proper to notice first, the objections to the decree in the cause, from which both parties have appealed, made by Jones and Epes.
    1. The first point made by the appellants, Jones and Epes, is, as to the nature of the lien on the land produced by the execution, and forfeiture &c. of a forthcoming bond. There is no question as to the original lien on all the lands of William D. Epes, by virtue of 'x'the original judgment.
    When did that lien cease or expire? The execution and forfeiture of the forthcoming bond did not amount to a pajrment or satisfaction of the original judgment. The cases of Taylor v. Dundas, 1 Wash. 92, and Downman v. Chinn, 2 Wash. 189, do not oppose this view. “The only effect of those decisions is, that a replevin or forthcoming bond, even if defective, is a bar to any further proceedings on the original judgment until quashed.” Randolph v. Randolph, 3 Rand. 490; Garland v. Eynch, 1 Rob. R. 545.
    The original judgment was obtained at September term 1827. The forthcoming bond taken by virtue of the fi. fa. which issued under that judgment, was dated the 25th of October 1827, and was forfeited the first Thursday in December 1827.
    The execution aforesaid was returnable to the first Monday in December 1827. If it was returned by the sheriff to the clerk’s office on the return day, or before the record of the first deed of trust, April 26th, 1828, even the appellants, in effect, admit the lien of the forthcoming bond would be preferable to the trust deed. Does not the fact of such return sufficiently appear on the record? The sheriff was bound by law under a penalty to return the fi. fa. on the first Monday in December 1827. He certainly made the return, although he did not date it. There is nowhere in the record an allegation or intimation that the sheriff did not strictly comply with the law and return the forthcoming bond and fi. fa. the first Monday in December 1827. It was in Court the first day of the April term. D. G. Williams one of the main defendants alone answered the bill. He makes no such objection that the bond had not been returned in due time, but relies on a different point, and as far as any inference as to this point could be drawn from the answer, it would be that the forthcoming bond was duly returned and filed. It is true there is not in the bill a special allegation, that the 'x'bond was returned before the month of April 1828. But it was in the clerk’s office and a copy was duly made by and obtained from the clerk, and filed in the cause, and no objection was made, or intimation given in the Court below, that the law had not been strictly complied with. No proof was called for as to this point, and no objection made till the case comes here. The counsel is aware that there were some dicta in relation to this point in Eipscomb’s adm’r v. Davis’ adm’r, 4 Leigh 303. The point was not discussed by counsel in that case, and the remarks of the judge were obiter dicta. It is humbly submitted, that the reasons for the opinion expressed by the Judge will not bear examination. How could executors or administrators be injured or entrapped? Could it have been possible in a case like this? And as to purchasers, suppose the parties for whose benefit the deeds of trust were executed, had gone to the clerk’s office in April 1828, when the first deed was recorded, to enquire and ascertain what liens existed on the lands of William D. Epes. Was it possible for them to be entrapped or deceived? They must have ascertained that the original judgment existed and was rendered seven months previously. Surely that would have been notice enough to them. But if more was wanted, they had but to apply to the sheriff, if the execution and forthcoming bond had not been returned. In all such cases the original judgment would be ample notice, and if a case should happen, which would be very rarely, of a forthcoming bond being not returned for 12 months, the same rule perhaps might apply to such bond as would to a common judgment, where no execution was issued within the year. It is true that as to a security in the forthcoming bond the original judgment might not be considered as any notice, but it is generally but a short time between the forfeiting of a forthcoming bond and the judgment on it, and it is believed that rarely if ever, are the forthcoming *bonds in a clerk’s office examined by any body for the purpose of ascertaining whether there be any lien on a particular person’s land. The counsel in this case has never heard of a single instance of such examination.
    It is submitted, however, that in this case the Court should not, under the circumstances, require any farther evidence than what appears, that the forthcoming bond was returned with the fi. fa. on the first Monday in December 1827.
    No objection was made, which if made, might have enabled the appellees to have proved when the bond was actually returned, if the fact was important. The point made in the answer was not of that character to lead the appellees to believe that any such objection would be made as is now made.
    
      But was the lien of the original judgment in this case suspended after the forfeiture of the forthcoming bond till it was returned to the office, if it was not returned till Court so as to let in the deed of trust executed before the Court in April, according to the true meaning of the act of assembly? Could it have been intended that a creditor’s lien by judgment should be vacillating and uncertain and depend at all on the strict compliance of the sheriff with the law? The lien to be good if the sheriff did his duty, but lost if he did not. It does not seem reasonable that such should have been the meaning of the legislature, and certainly they have never said so in plain terms. They have said the forthcoming bond shall be returned, and shall have the force of a judgment. The execution of a forthcoming bond is a favour granted the debtor: It is for his accommodation. 'Banded is generally better than personal security, and it is not reasonable to suppose that the legislature intended to deprive the creditor of his lien without some good cause and by the use of plain terms. The counsel submits with confidence *in this case, that whatever might have been the effect of the forthcoming bond while in the hands of the sheriff after forfeiture, till returned, that when returned, it had the force of a judgment from the time it was forfeited. If the lien in such cases under the then law did not relate back to the forfeiture, then how easy might this favour to a creditor have been made an instrument of injustice. In large counties and in other places where sales were fixed to take place at points remote from the clerk’s office, and frequently fixed to take place after the return day of the execution, it might be very difficult, if not impossible, for the sheriff to return the forthcoming bond to the office for some days after the forfeiture, and creditors then upon the watch had nothing to do but in the interval between the forfeiture and the return of the bond, to obtain conveyances and have them recorded. According to the doctrine contended for by the appellants Jones and Epes, deeds recorded in such intervals, even the next day after the forfeiture, would overreach the lien of the original judgment, and of the forthcoming bonds forfeited, but still in the sheriff’s hands. Judgment debtors and securities in forthcoming bonds might in this way play a deep and ruinous game: The security might have been taken in consequence of his landed estate, and putting a deed upon record during the interval, the security might become worthless.
    The following extract from Judge Roane’s opinion in Busk v. Ramsey, 3 Munf. 454, seems not to be inappropriate here: “I entirely concur in opinion with one of the Judges in the case of Cook v. Piles, 2 Munf. 153, that a forthcoming bond is no satisfaction of a judgment, until the forfeiture: and I think it follows that, until such satisfaction has taken place, the lien created under the judgment is not extinguished. The old right does not cease until the new one is authorized to succeed it. No chasm between the two is *to-be created by implication or construction.” The old law says that a forfeited forthcoming bond shall have the' force of a judgment, but it does not say it shall not have that force till returned. Such a meaning can only be made out by implication or construction, and then it is submitted against the principles of justice.
    Under the law in the new Code, the forthcoming bond is to have the force of a judgment against the obligors who were alive when the bond was forfeited and returned, and the clerk is to note the date of the return of the bond. By the law the sheriff is allowed thirty days to return the bond after it is forfeited. It is evident that the legislature has not given any sanction to the doctrine contended for, by fixing the day of the return of the bond as the commencement of the lien. All the new law requires is, that the obligors shall be alive at the forfeiture and return, to have their lands affected by the lien. The meaning seems clear that the lien relates back to the forfeiture, if the obligors are alive at the return of the bonds.
    This record shews that, when the judgment was rendered on the forthcoming bond taken in October 1827, only six months before, all the parties to the bond had become insolvent. It was then in the power of the Court on motion to have quashed the bond, on account of the insolvency of the obligors, and if the bond had been quashed, it would have restored to the appellees the lien of their original judgment. Garland v. Lynch, 1 Rob. R. 545. This suit was brought within nine months after the date of the original judgment, and if the forthcoming bond had been then quashed, as it might legally have been, the appellants Jones and Bpes could not have complained. It is then submitted, that the Court below sitting as a Court of equity, if justice to the appellees required it, had a right to consider the bond as if actually quashed, and as a mere nullity, in a case where all the parties interested were before the Court, *in accordance with the maxim, that a Court of equity will frequently consider that as done which could legally have been done, and ought to have been done.-
    In leaving this point, the counsel submits with confidence to this Court, that it is not the true meaning of the act of assembly, taking the plain import of the words, that forthcoming bonds should not have the force of judgments till returned to the clerk’s office. The law directs the bonds to be returned with the executions to the office, and says they shall have the force of judgments. If the legislature had intended to restrict the meaning of the words as contended for, by using the word “there” before the words “force of a judgment,” there might have been some ground for the meaning contended for: But such word is wanting. Again, by sec. 17, p. 531, 1 Rev. Code, 1819, the sheriff was ordered to deliver the forthcoming bond to the creditor if demanded. If delivered to him, was it not to have thé force of a judgment while in his hands, by relation back to the forfeiture, when it should be actually returned to the office? Could the legislature have intended when they made such a provision, that the bond should have no force of a judgment till actually in the office? The words directing forthcoming bonds to be returned and to be there kept, seem to be merely directory to the sheriff and clerk, and not intended to restrict the commencement of the lien, or the right to award execution.
    The effect of the decision in Epes’s ex’or v. Colley, 2 Munf. 523, cannot be got rid of by saying the motion is a mere remedy. If the word “thereupon” should be taken in a restrictive sense, and as a sort of precedent condition, the Court would not have decided as it did in that case. The Court of appeals by their decision in that case, shewed that the words directing the forthcoming bond to be returned &c. should be construed liberally for the creditor; not in a restrictive sense.
    *MYRICK’S EX’ORS v. EPES &c.
    The main question of dispute relates to the course pursued by the Court in reference to the disposition of the proceeds of the sales of the tract of land in Dinwiddie. When the judgment was obtained against Epes in September 1827, and when this suit was instituted in June 1828, that tract of land, in which Epes had but a life estate, was unsold. William D. Epes took the insolvent oath in April 1828, and as no deed of trust had been recorded in Dinwid-die, the whole remaining interest of Epes vested in the sheriff of Dinwiddie for the benefit of certain judgment creditors. One-half of Epes’s interest was subject to the lien of the judgment obtained by Myrick’s executor in September 1827, and the forthcoming bond taken under it. All the interest which vested in the sheriff of Din-widdie by virtue of William D. Epes’s insolvent assignment, was sold by the sheriff in July after this suit was brought, and was bought by Archer Jones one of the then defendants in this cause. But the bill in this cause was not filed till after said sale. It states the fact of that sale, and submits to the Court, in express terms to decide whether that tract of land, as far as Epes’s interest extended and was affected by their judgment and forthcoming bond, should be made liable to help to pay the judgment relied on and set forth in the bill. The deed to Archer Jones for said Dinwid-die land was filed as an exhibit in this cause, and although he was a pendente lite purchaser, yet he was at the time also a party in this cause.
    It does not appear that an}' notice was given at the sale of the Dinwiddie land, of the lien of the judgment of Myrick’s executors, and as far as appears it may be that those present at the sale supposed that the sheriff sold all William D. Epes’s life estate in the land. It is *true this could not injure the interest of Myrick’s executors so far,as to cause them any loss, but how far such a sale and con-vej'ance would operate to bring that land within one of the points decided in McClung v. Beirne, 10 Leigh 394, is submitted to the decision of the Court. It is the fifth point in that cause to which reference is made.
    It seems to the counsel, that there can be no question that at least one-half of Epes’s interest in that land was legally sold and conveyed by the sheriff, and that Myrick’s executors had no lien on or claim to more than half, at the time of the sale. And it seems difficult to understand how the Court could come to the conclusion that Myrick’s executors were entitled to more than half the sales of the Dinwiddie land, if to any part, except by losing sight of the fact that there was no lien on that land but the judgment, when the insolvent oath was taken.
    The sale made by the sheriff of Dinwid-die could not legally have been of any right, title or interest which had vested in My-rick’s executors under the judgment of September 1827, or the forthcoming bond. Their interest had not been sold because the sheriff was not called on to sell it, nor was he authorized to sell it, nor did he offer or attempt to sell it. It seems then difficult to comprehend on what ground Myrick’s executors could claim or be entitled to one-cent of the amount of that sale, 800 dollars, net amount 753 dollars 55 cents.
    The Court decided that Myrick’s executors had waived their right to the said sum of 753 dollars 75 cents, the proceeds of the sale of the Dinwiddie land aforesaid. If they had no right to any part of that sum, they could waive nothing But let us look at the case under the supposition that the executors were entitled to some part or the whole of that sum of 753 dollars 75 cents.
    *It will not surely be contended that any right to said money was waived in this cause. The question in relation to that land was expressly submitted to the Court for decision by the bill, the purchaser was a party and his title deed was an exhibit, and all the exhibits necessary to shew the nature of the interest sold were filed in the cause. If any right then was waived by Myrick or his executors it must have been done in the case of Epes & Scott v. Epes &c. That suit was brought in August 1828. It will be seen on examination that the parties in the two cases are the same, except J. D. Royall sheriff of Nottoway, and E- Watkins sheriff of Din-widdie. All the parties interested in that money being parties in both causes, knew or ought to have known that Myrick had submitted the question about the Dinwiddie land to the decision of the Court. The two cases were depending at the same time and were in the same Court. Myrick was made a party in the case of Scott and Epes, merely because he was a party in one of the trust deeds. No claim is set up or intimated against his rights b.y virtue of the lien of the first judgment in 1827 and the forthcoming bond. Was it then a fatal error in Myrick that he did not in Scott and Epes’s case volunteer to state again what he had already done in the suit first brought? If he erred in this it was certainly not done with any bad intention. In his answer in that cause he expressly refers to his two executions, one on the forthcoming bond and one on the judgment obtained at April term 1828. He did not suppose nor did his counsel suppose that any part of the land sales under the insolvent assignment was applicable to the payment of his judgment in 1827, or the forthcoming bond taken under it. If he was mistaken as to this matter why was he more to blame than Archer Jones the purchaser and also a creditor under the trust deeds, and X). G. Williams and Francis Epes, all parties in both causes who remained wholly *silent. Myrick did not obtain a decree, for a dollar in Scott’s case, and what he did and did not do cannot be construed into an attempt or desire to obtain an undue advantage. Ho injury was done to any party by the course he pursued.
    But if Myrick was entitled to the 753 dollars 75 cents or any part of it towards the payment-of his forthcoming bond, did not the Court commit a grave error in not taking hold of the amount and decreeing it accordingly in this case? True it had been decreed to particular parties in the case of Scott and Epes, but those parties were all before the Court -in this cause. Surely then if they had received moneys to which they were not entitled, and by a decree in a cause brought after this, if that money ought to have been appropriated towards Myrick’s forthcoming bond, it was clearly the duty of the Court in this cause which first assumed the control of that fund as far as it could, to have decreed those parties to do justice, to pay back the sums thus received by them and to'which they were not entitled according to the expressed opinion of the Court. It was in the full power of the Court in this cause to have reached that money and to have had it appropriated in pursuance of its opinion. No part of it was lost, and all might have been still decreed as the Court thought it was equitably and legally applicable. It does not seem that any right obtained under that decree in Scott and Epes’s case could be a bar in a Court of equity to reclaiming the fund thus said to have been waived or abandoned.
    It is finally submitted that there is no good ground for deciding in this case that Myrick waived or abandoned his lien on the Dinwiddle land by not urging a claim to the fund of 753 dollars 75 cents, or to one-half of it more strenuously in Scott & Epes v. Epes. That money is not lost and can •even now be reached by a future decree in this cause, if indeed any part of it *ought to be applied towards the judgment in question. The counsel has not been able to find any authority tending to sanction the doctrine of waiver or abandonment such as was relied on by the Court. This is not a case where a party was present at the sale and stood by among persons ignorant of his claim, and suffered them innocently and without notice to purchase or in any manner to be injured by his silence. The whole matter was transacted among those who were perfectly informed of all the circumstances attending the matter. Ho loss was or can be sustained, for if some have to refund it will be only refunding what they are not and never were entitled to.
    
      
      Forfeited Forthcoming Bonds — From What Time a Lien upon Land. — For the proposition that a forfeited forthcoming bond is a lien upon land from the date of its return to the clerk’s office, see the principal case cited in Terry v. Wooding, 2 P. & H. 188; Cabell v. Given, 30 W. Va. 770, 5 S. E. Rep. 447, 448. Por all matter pertaining to forthcoming bonds, see monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
      (Judgments — Relation Back. — In Hockman v. Hockman, 93 Va. 457, 25 S. E. Rep. 534, it is said: “At common law, all judgments were, by legal fiction, it is said, supposed to be entered on the first day of the term of the court at vihich they were recovered. This rule has always prevailed in this state whenever the action, in which the judgment was rendered, was in such condition that it might have been then tried, if it had happened to occupy the first place on the docket. And the law, not regarding fractions of a day, the lien of a judgment began by relation at the first moment of the first day of the term. The Mutual Assurance Society v. Stanard, 4 Munf. 539; Coutts v. walker, 2 Leigh 268; Skipwith v. Cunningham, 8 Leigh 271; Horsley v. Garth, 2 Gratt. 474; Withers v. Carter, 4 Gratt. 407; Jones v. Murick's Ex’or, 8 Gratt. 179; Brockenbrough v. Brockenbrough, 31 Gratt. 580; Yates and Ayers v. Robertson & Berkeley, 80 Va. 475; and Janney’s Ex’or v. Stephen’s Adm’r, 2 Pat. & H. 11.”
      The principal case was also cited on this point in Yates v. Robertson, 80 Va. 477. See also, foot-note to Brockenbrough v. Brockenbrough, 31 Gratt. 580.
      As to j udgments by confession, see monographic note on “Judgments by Confession” appended to Richardson v. Jones, 12 Gratt. 53.
    
    
      
      (Equity Practice — Forfeited Forthcoming Bonds— Obligors Insolvent. — Burks, J., in delivering the opinion of the court in Rhea v. Preston, 75 Va. 774, said: “A forfeited forthcoming bond stood as a security for the debt, and though, while in force, no execution can be taken out or other proceedings be had at law to enforce the original judgment; yet the bond is not an absolute satisfaction. For if it be faulty on its face, or the security when taken be insufficient, or the obligors, though solvent when the bond is taken, become insolvent afterwards, the plaintiff may, for these or other good reasons, on his motion, have the bond quashed and be restored to his original judgment. And though the bond be not quashed, if it appear that it may properly be, a court of equity, which looks to substance rather than form, and, when occasion requires, treats that as done which ought to be done, will regard the bond as a nullity, aud the original judgment in full force. Garland and Others v. Lynch, 1 Rob. Rep. 545 ; Jones, etc., v. Murick's Ex'ors, 8 Gratt. 179, 211, 212." See also, Cooper v. Daugherty, 85 Va. 351, 7 S. E. Rep. 387, citing the principal case.
    
    
      
       SaIe of Lands Subject to Lien — Order of Liability between the Alienees. — In McClaskey v. O’Brien, 16 W. Va. 839, the principal case was cited to the point that, where land, which is subject to the lien of a mortgage or other paramount encumbrance, is sold in parcels successively to different persons, the buyers are prima facie chargeable in the inverse order of alienation. Again, in Gracey v. Myers, 15 W. Va. 202, it is said : “In Henkle’s Ex’or, etc., v. Allstadt et al., 4 Gratt. 284, it was held, that where a tract of land is subject to a mortgage, and the owner of the land sells a part thereof, and conveys it with general warranty, and then sells the remainder of the tract, ‘the part last sold is primarily liable for the satisfaction of the mortgage debt.’ See also, Jones, etc., v. Murick's Ex'ors, 8 Gratt. 179." The principal case was also cited as authority on this point in Kelly v. Hamblen, 98 Va. 390, 36 S. E. Rep. 491.
      
        See further on this subject, foot-note to Alley v. Rogers, 19 Gratt. 366, and cases there cited.
    
    
      
       Degrees — Conclusiveness.—See principal case cited and approved in Tilson v. Davis, 33 Gratt. 104, 105. See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
   BAIyDWIN, J.,

delivered the opinion of the Court.

The statute concerning executions, 1 Rev. Code 1819, p. 530, § 16, prescribed in regard to-forthcoming bonds, that in the event of the failure to deliver the property according to the condition of the bond, the sheriff should return it to the office from whence the execution issued, to be there safely kept and to have the force of a judgment; and thereupon it should be lawful for the clerk of the Court, where such bond should be lodged, upon motion &c., to award execution &c. And by the amendatory act of 1822, Supp. Rev. Code, p. 270, § 1, the authority of the clerk to award execution upon the bond was transferred from him to the Court. By the true construction of the act of 1819, the forfeited forthcoming bond was to have the force of a judgment, so as to give a lien upon the lands of the obligors, not from the time of the forfeiture, but from the time of the- return of the bond to the clerk’s office; from which time last mentioned there was a capacity to sue out execution, and whether the same should be awarded by the clerk or the Court, was immaterial. This construction is warranted by the terms of the statute, and is consonant to its spirit. *The quasi judgment was, like other judgments, to be deposited in the clerk’s office, where it could be seen and inspected by all persons interested in the subject; whereas if it took its force as a judgment lien from the time of the forfeiture, it might be held up to the great prejudice of creditors and purchasers for many years, and that by the act of the plaintiff himself, for by the 17th section of the same statute it was made the duty of the sheriff to deliver the bond to the plaintiff if required, and there was no period of limitation to the award of execution.

In the present case, the execution of My-rick, the testator of the appellants who are first above mentioned, against William D. Epes, upon which the forthcoming bond was taken, issued .on the 2d of October 1827, upon a judgment of the Superior court of Nottoway, for 1160 dollars 1 cent, with interest thereon from the 12th of May 1827, and 7 dollars 51 cents costs, and was returnable on the first Monday in December next following. It was levied and the forthcoming bond taken on the 25th of October in the same year; and the bond forfeited on the first Thursday in December 1827, and execution thereupon awarded by the Court on the 28th of April 1828. The forthcoming- bond mast be regarded as returned on the 28th of April 1828, when the motion for award of execution was made upon it, there being no evidence that it was returned at an earlier day. But prior to the 28th of April 1828, the said William D. Epes, by several deeds of trust conveyed his real estate to secure some of his creditors, which deeds of trust were admitted to record in the 'county of Nottoway on the 26th of April 1828; one of which deeds however embraces a tract of land situate in the county of Dinwiddie, in which county the same was not recorded. And on the 28th of April 1828, the said William D. Epes, in the Superior court of Nottoway county, confessed various judgments, and *being in custody thereupon by the surrender of his special bail on that day in open Court, took the oath of an insolvent debtor, and by his schedule surrendered and transferred to the sheriff all his estate in the property real and personal embraced in the deeds of trust aforesaid.

The said deeds of trust therefore, except in regard to the Dinwiddie land, had priority over the lien of the forthcoming bond, and with the sa.me exception over the assignment of the insolvent for the benefit of his schedule creditors; and the latter must be preferred in regard to the Dinwiddie land over the lien of the forthcoming bond, inasmuch as the judgments confessed in open Court, and the proceeding thereupon and therein had relation to the first moment of the first day of the term; whereas the return of the forthcoming ; bond must be treated as an act done in the office and not in the Court, and as having no relation at all, and therefore before it was effectual the estate of the insolvent had been assigned by operation of law for the benefit of the schedule creditors.

But although the lien of Myrick by force of his forthcoming bond had thus proved unavailing, as well in regard to the schedule creditors as the incumbrancers, yet that of his original judgment was in equity still subsisting; and being prior in point of time, paramount to both. The forthcoming bond, it is true, after its forfeiture operated while it continued in force as a discharge of the original judgment; but its purpose was to secure the payment of the debt, and having proved abortive in that respect from the insolvency of the obligors, the Court of law would have quashed it on the motion of the creditor, in order to remit him in all respects to the benefit of his ■original judgment. And a Court of equity looking to the substance of things, and disregarding mere matters of form, will not when it has jurisdiction of the subject require the party sto go through the formality of quashing the bond at law, but treat the security as a nullity, and proceed to give such relief as he was entitled to under his original judgment.

Myrick therefore, by force of his original judgment, had at the institution of this suit a lien upon all the lands of his debtor, William D. Epes, at the time of the recovery thereof, to the extent of the debt, interest and costs thereby recovered, and also for the costs and expenses occasioned by the taking of the forthcoming bond, which was part of the execution, and proved unavailing without any fault of the creditor. This lien, by the rules of equitjq was to be enforced in the first place as amongst alienees and incumbrancers, against the land last aliened or incumbered by the debtor, and if that should be insrifficient, then against the other lands successively .in the inverse order in point of time of the alienations and incumbrances.

This suit was instituted by Myrick on the 21st of June 1828, and his bill filed at the August rules next following. Between those two periods the Dinwiddie land was sold by the sheriff of that county for the benefit of the schedule creditors. The bill sets forth the judgment, execution, forfeited forthcoming bond and award of execution above mentioned. It also sets forth the several deeds of trust executed by the debtor, the judgments confessed by him, his discharge as an- insolvent, and his schedule. It asserts the priority of the plaintiff’s judgment lien, and that it is not affected by the deeds of trust, or the assignment of the debtor on taking the oath of insolvency. It represents that although the plaintiff’s lien upon the Dinwiddie land is prior to that of the schedule creditors, yet he is not disposed to interfere with that land if he can be decreed his money to be raised from the other tracts, as they would produce much more than sufficient for the purpose; and as to this matter submits it to the Court to decide as equity shall dictate.

*The bill further represents that the plaintiff obtained another judgment against William D. Epes in the same Court, on the 30th of April 1828, for 262 dollars 62 cents, with interest thereon from the 14th of February 1828, and 7 dollars IS cents costs; upon which and the forthcoming bond aforesaid, writs of fieri facias issued, directed to the sheriff of Dinwiddie county, and came to his hands, and thereby created a lien upon the Dinwiddie slaves previously embraced in the schedule aforesaid, at least for any balance remaining, after satisfying the schedule creditors, although said writs were never levied upon said slaves, in consequence of their escape from the county of Dinwiddie to the county of Nottoway.

The bill makes defendants the schedule creditors and those secured by the deeds of trust, amongst which defendants are Archer Jones, Francis Epes, in his own right and as administrator of Thomas R. Epes deceased, and Samuel Scott, administrator of John F. Epes deceased, prays satisfaction of the debts due the plaintiff, a sale of the lands and the Dinwiddie slaves, and that if the latter should be applied to the satisfaction of the schedule creditors, then that the plaintiff’s smaller judgment should participate in the proceeds of the sale which had been made of the Dinwiddie land, on the ground that it had been obtained at the April term 1828, and relating back to the first day of the term, operated as a lien upon that land prorata with the judgments of the schedule creditors.

Shortly after the commencement of this suit by Myrick, some of the defendants therein, to wit, Francis Epes in his own right and as administrator of Thomas R. Epes deceased, and Samuel Scott, administrator of John E. Epes deceased, brought their suit in the same Court, in which the bill was filed on the 27th of August 1828. The bill charges that the said Francis Epes,

Thomas R. Epes, and John F. Epes became *bound as sureties for William D. Epes in the bond for 1808 dollars, upon which Cooper, one of the schedule creditors, recovered his judgment; that the judgment to the extent of 1930 dollars 7 cents had been made by execution out of the property of Francis Epes; and that for the small balance still due Cooper was pursuing Samuel Scott as administrator of, John F. Epes. It sets forth the several deeds of trust above mentioned by which William D. Epes conveyed his lands and ' other property to secure some of his creditors, and represents the failure to record any of them in the county of Dinwiddie prior to the debtor’s oath of insolvency, and his assignment for the schedule creditors; and that by this failure they became void as to the Dinwiddie property, which passed to the sheriff for the benefit of the schedule creditors. It states the sale by' the sheriff of Dinwiddie for the benefit of the schedule creditors of the land and some of the other property in that county; the escape of some of the slaves to the county of Nottoway, and their liability to be sold there, under the schedule assignment, by the sheriff of that county. It seeks the application to the debts due the schedule creditors of the proceeds of the sale which had been made by the sheriff of Dinwiddie, and of the sale which should be made by the sheriff of Nottoway of the Dinwiddie slaves that had escaped from the latter to the former county, and the subrogation of the plaintiffs to the interest of said Cooper as one of the schedule creditors in said proceeds : And it makes the proper defendants, and amongst them the said Myrick; but it takes no notice of his suit, nor of his paramount lien upon all the lands of the debtor, and does not mention the judgments which he had recovered.

To that bill, Myrick, with other defendants, filed a joint answer, in which they deny the equity to subrogation asserted by the plaintiffs, and allege that the plaintiff Francis Epes had already received more than *the amount paid on Cooper’s judgment from sales of part of the property conveyed by the trust deeds, one of which provided for his indemnity as security for the debt to Cooper, and embraced the Dinwiddie property; and that its failure as to that property proceeded from his own laches: Myrick stated separately the recovery of his two judgments, and reasserted his claim to a lien upon the Dinwid-die slaves by force of his unlevied writs of fieri facias; but took no notice of his own pending suit, nor of his lien therein asserted, whether paramount or pro rata, upon the Dinwiddie land, or the proceeds of the sheriff’s sale thereof.

Pending Myrick’s suit, sales were made by a trustee of the property embraced in the trust 'deeds, in regard to which they had been duly recorded, and some of it very shortly after the suit was instituted, and before the filing of the bill. In regard to these trust sales, as well those already made as to those contemplated, the bill is silent.

The other suit brought by Francis Epes &c. was finally heard on the 11th of April 1834, when the Court, by its decree, disposed of the trust sales and the schedule sales according to the supposed rights of the parties, substituting the plaintiffs as sureties to the place of Cooper as one of the schedule creditors, and adjusting the equities arising amongst some of the parties ; and the design and effect of the decree was to give distributively as well to the plaintiffs by substitution to the interest of Cooper, as to some of the other schedule creditors, the whole proceeds of the schedule sales made by the sheriffs, including that of the Dinwiddie land.

It appears that in the Dinwiddie land and the other lands conveyed by the deeds of trust, the grantor William D. Epes had but a life estate, except the tract of 800 acres in Nottoway conveyed by the deed for the benefit of David G. Williams, in which he had an estate *in fee. That deed was made on the 14th of February 1828, and the others on the 25th of April next following. It also appears that the proceeds of the trust sales of the lands conveyed for the benefit of Archer Jones and Francis Epes respectively were paid over to them, and that the proceeds of the sale of the 800 acres under the deed of the 14th of Februarj' were paid over to Williams; and that the proceeds so paid to said Jones and Epes were rather more than sufficient to pay off the balance of the larger judgment of Myrick, after deducting from it a sum equal to the proceeds of the Dinwiddie land.

Myrick’s suit was not finally heard until the 14th of October 1845, when the decree appealed from was rendered, by which the Court declining, for reasons stated, to direct a sale of the Dinwiddie land, held that the plaintiff had waived his right to the proceeds of the sheriff’s sale of the Dinwid-die land, and had no right to recover of that amount from the defendants who had received the proceeds of the lands sold for their benefit under the deeds of trust: that the defendants Archer Jones and Francis Epes were liable on account of such proceeds before the defendant Williams could be called upon on account of those received by him: and directed payment by said Jones and Epes respectively to the plaintiff of sums together equal to the balance of his larger judgment, after deducting therefrom the amount of the proceeds of the Din-widdie land.

And só the question arises, whether the appellants who are the executors of Myrick ought to recover in this suit the amount of the proceeds of the Dinwiddie land, against those defendants who as schedule creditors received the benefit thereof, under the decree of 1834, rendered in the suit brought hj Epes and others; and if not, then the further question, whether the executors of Myrick can recover the amount so deducted from his judgment against any of the other defendants.

*There is no evidence, nor is there any pretence from any quarter, that the Dinwiddie land did not produce at the sheriff’s sale thereof under the schedule the full value of the life estate of William D. Epes therein; nor does it ajJpear that it ■was sold subject to Myrick’s paramount judgment lien, or that the purchaser or the sheriff had any knowledge of the existence of that lien. It would therefore have been competent for the Court while the proceeds of the sale were in the hands of the sheriff or otherwise within its control, to have directed the same to be applied towards the discharge of Myrick’s judgment. And that relief would have been required by principles of equity, instead of subjecting the purchaser to the loss of the land ; and would have fallen within the scope of the plaintiff’s bill, though not designated therein, the object of it being to obtain satisfaction of his demand out of the lands of the debtor, and whether by means of sales thereof to be directed by the Court, or of sales already made by competent authority, was immaterial.

It was too late however at the hearing of the present suit in 184S, to subject the proceeds of the sheriff’s sale of the Dinwiddie land, which proceeds were recovered by the schedule creditors by the decree rendered in 1834 in the suit brought by Epes &c. That decree is an insuperable bar to the pretension now made by the executors of Myrick, ■who was a party in that suit, to a recovery against the schedule creditors of the money paid to them under the authority and by the direction of the said decree of 1834. It was a decree not only upon the same matter, the apparent paramount lien and title of the schedule creditors in regard to the Dinwid-die land, which carried with it the negation of a paramount lien or title in all other persons; but it was a recovery of the identical subject, the proceeds of the sale of that land made by the sheriff. Nor was it the less decisive and conclusive that the money was not in the hands of ^Myrick, but in the hands of the sheriff who held it subject to the control and decision of the Court: nor that Myrick in his answer did not deny the lien or title asserted in the bill, and asserted no lien or title in himself, nor that the present suit was then pending and the first brought, for it is not the institution of a suit, but the judgment or decree therein, which concludes the rights of the parties. The pendency of the present suit, however, serves to shew, if that were material, that Myrick was not ignorant of his own paramount lien upon the Dinwiddie land, but chose not to insist upon it, preferring and desiring, as would seem from his own bill, to obtain satisfaction of his larger judgment out of his debt- or’s other lands.

It follows from what has been said, that the Circuit court did not err in failing to decree in the present suit to the plaintiffs therein, payment by the schedule creditors of the proceeds of the sale of the Dinwid-die land which they had recovered by the former decree of 1834, rendered in the suit brought by Epes &c.

Nor did the Circuit court err in refusing to decree against the creditors who had received the proceeds of the sales made under the deeds of trust, so much of the plaintiff’s demand as was equal to the proceeds of the sheriff’s sale of the Dinwiddle laud.

Although Myrick had a paramount judgment lien upon all the lands of his debtor, yet his proper resort was primary as to the Dinwiddie land, secondary as to the Notto-way lands conveyed for the security of Jones & Epes, and ultimate as to the Not-toway land conveyed for the security of Williams; and of these funds he could not subject the second until he had exhausted the first, nor the third until he had exhausted the second. And if by his surrender, waiver, acquiescence or neglect, he lost the power of proceeding in this order, he thereby incurred the consequences himself, and coukl not throw the burthen upon others by whom it '"’ought not to have been borne. The facts already stated serve to shew that, with a full knowledge of the priority of his lien, he suffered the proceeds of the Dinwiddie land to remain in the hands of the sheriff for nearly four years without an effort to secure the application thereof to his judgment, and by his wilful waiver or gross neglect, submitted to the conflicting pretension of the schedule creditors, and so allowed the fund to be appropriated to their benefit, by an urireversed. and irreversible decree in their behalf. And if notwithstanding this, he might still have pursued the perishable life estate in the hands of the purchaser at the sheriff’s sale, he has not made out a case propier for such relief by evidence, nor by pleading, his bill not having even mentioned the name of the purchaser, who did not stand in the position of a purchaser pendente lite, the sale having been made before process served and bill filed.

The Court is therefore of opinion, that there is no error in the decree .of the Circuit court.

Decree affirmed.  