
    *Sively, by &c. v. Campbell & al.
    September Term, 1873,
    Staunton.
    Lien of Judgment — Future Assignments — riarriage Settlement. — C, a judgment creditor of S, files bis bill against S, to subject bis lands, consisting of five small tracts, to satisfy bis judgment. S answers and says be bas sold a part of bis land to M, and a part to 6, and a part was settled on bis wife by marriage agreement. And since tbe filing of the bill be bad been adjudged a bankrupt on bis petition. C amends bis bill and makes G, tbe wife, and tbe assignee in bankruptcy, defendants. A commissioner reports tbe plaintiff’s judgment $548.87, and other judgments, in all $1,284,03; all docketed before tbe marriage contract; tbe assessed value of all the lands $1,745.50; tbe annual rental of all $75; the lands sold M and G of one-fifth value of the whole. The assignee has sold 213 acres of the land, not including the wife’s; which was not embraced in S’s schedule. The court decrees sale of wife’s land on a credit, and directs a personal security, tbe obligors to waive the homestead exemption. Head :
    1. Same — Same-Decree for Sale of Wife’s Land. — Tbe commissioner having reported that tbe lands sold M and Gwas one-fifth of tbe value of the land, there Is no necessity for further enquiry as to the lands purchased by them, before the decree for a sale of the wife’s land.
    2. Same — Same —Same—Unessentials.—It was not necessary to show the assessed value of the wife’s land before decreeing tbe sale.
    3. Same — Same—Same—Same.—It was not necessary to have a separate report of tbe number of acres held by the wife, as that sufficiently appears.
    4. Same — Same—Same—Presumption as to Priority. —under the circumstances of this case, the presumption is that M’s deed, thou gb it is not in tbe record, was prior to the marriage contract, and tberelore M was not a necessary party.
    *5. Same — Same—Bankruptcy—Jurisdiction of Court. — The fact that S went into bankruptcy after theTill was filed, could not oust the jurisdiction of the State court as to tbe wife; nor could it as to S; and tbe assignee did not object.
    6. Waiver of Homestead Exemption — Quaere.— Quasbe: If tbe court may require the purchasers under a decree and their sureties, to waive their homestead exemption?
    
      In April 1871 Calvin S. Campbell instituted a suit in equity in the Circuit court of Alleghany county, against Andrew J. Sively, to subject the lands of said Sively to satisfy a judgment which the plaintiff had recovered against him. In his bill he stated that he had recovered a judgment against Sively in the said court on the 7th of May 1867, for $313.66, with interest and costs, as stated in the bill: that on the 14th of May this judgment was docketed in the clerk’s office of the County court of Alleghany; and that in October 1870 he had sued out an execution of fi. fa. upon it; which had been returned no effects.
    The bill further states, that at the time of the rendition of this judgment the said Sively was, and still is, the fee simple owner of the following named tracts of land, viz: One tract of fifty-four acres on Jackson’s river, one tract of fifty-eight acres on Potts creek, another tract of thirteen acres on same creek, another tract of sixty acres on same creek, and another tract of one hundred and eighty-two acres on same creek. And the prayer of the bill is for the sale of the land, and the payment of his judgment, and for general relief.
    The plaintiff filed with his bill a copy of his judgment and of the execution which had issued upon it; and the bill having been taken for confessed, at the June term of the court, the court in vacation made an order, directing a commissioner to take an account of all liens, and their priorities, upon the lands in the bill mentioned, whether by judgment or otherwise, including the plaintiffs, *and also an account of the fee simple and annual rental value of said lands, and report, &c.
    At the August term of the' court Sively filed his answer. He says the proper parties are not before the court: That he sold a portion of the lands sought to be subjected to sale, to Joseph McCaleb, and another portion to James P. Gillaspie; for both which deeds have- been made; and that by a marriage contract with his wife, of record in the clerk’s office of Alleghany County court, she is entitled to another part of said lands: And since the filing of plaintiff’s bill, defendant has filed his petition in the District court of the.U. S. to be declared a bankrupt; and the plaintiff cannot proceed in this cause without making his assignee in bankruptcy a party defendant.
    In October 1871 the plaintiff filed an amended bill making Charlotte E. Sively, wife of Andrew J. Sively, Thomas E. Cobbs, assignee in bankruptcy of said Andrew J. Sively, and James P. Gillaspie defendants. He states in his amended bill that Sively conveyed to Gillaspie by deed bearing date May 1st, 1867,,several tracts of land, being portions of the land in the bill mentioned. He charges that at least one judgment was rendered against Sively long prior to the date of this deed; and he charges that his own judgment of May 3d, 1867, was rendered and docketed before the said deed was executed; it not having been acknowledged until May 29th 1867.
    The amended bill' further states, that on the 1st of May 1868, Sively entered into an article of agreement with Charlotte E. Wolf, in contemplation of matrimony, in which it was stipulated that the said Charlotte should hold and enjoy during her natural life, a considerable portion of the lands mentioned in the original bill, including the mansion house; a copy of which is filed *with the bill. It charges that this agreement was subsequent to the docketing of the plaintiff’s judgment, and that said judgment is a lien upon said lands.
    The bill further states that subsequent to the institution of this suit Sively had filed his petition in bankruptcy, and had been adjudged a bankrupt, and that Thomas E-Cobbs was chosen his assignee. That Cobbs had sold on November 17th, 1871, two hundred and ten acres of the said lands, being all the lands owned at the time by said Sively, except that embraced in the marriage contract; when the plaintiff became the purchaser thereof at $355; of which he had paid $118.33, and had given his bonds at one and two years for the balance of the purchase money.
    The prayer of the bill is, that Cobbs may be required to pay into court the purchase money received by him, and the plaintiff may be authorized to pay into court the balance of said purchase money as it came due; and that the same may be applied to the payment of the liens upon it in their order. That the court may decree a sale of the land embraced in the marriage contract; and that the proceeds may be applied to pay the plaintiff’s debt; and in case of deficiency that the land sold to Gillaspie may be charged with the payment of the same; and for general relief.
    The amended bill was taken for confessed at the February rules, 1872. In March Cobbs filed his answer, in which he says he sold the land as stated in the amended bill, it being the real estate set forth in the schedule of the bankrupt, and that he had reported the sale to the court. He insists that the United States court has sole cognizance of the subject; and that Sively having been finally discharged from all his debts by a decree of the United States court, this suit should be dismissed.
    *The commissioner returned his report; from which it appeared, that there was one judgment against Sively, in favour of N. K. Walker, principal, interest and costs $136.60, docketed September 20th, 1866; the judgment of the plaintiff for $548.83, docketed May 14th, 1867; and three others docketed subsequent to the plaintiffs, but before the-date of the marriage settlement; all the debts, amounting principal, interest and costs, to $1,284 02. The commissioner reported that the assessed value of all the lands in the bill mentioned was $1,745 50. He estimated the annual rental value at seventy-five dollars a year; and he estimated the land conveyed to Gillaspie and McCaleb to be about one-fifth in value of the entire lands. The deeds to these parties are not in the record.
    The cause came on to be heard on the 29th of March 1872, when the court held that the lands embraced in the marriage contract were subject to pay the plaintiff’s judgment, and decreed that if the plaintiff’s judgment remained unsatisfied at the expiration of sixty days from the adjournment of the court, R. B. Parrish, who was appointed a commissioner for the purpose, after such advertising as he might deem best, should sell at public auction the said lands upon the terms, of cash for- enough to pay the costs of suit and the expenses of sale, and as to the residue upon credits of one, two and three years, in equal instal-ments, taking from the purchaser bonds with good personal security, bearing interest from the date, and waiving the homestead exemption.
    From this decree Mrs. Sively, by her next friend, Andrew J. Sively, applied to this court for an appeal; which was allowed.
    Mays, for the appellant.
    R. Li. Parrish, for the appellee.
    
      
       See foot-note to Alley v. Rogers, 19 Gratt. 366.
    
   *BOULDIN, J.,

delivered the opinion of the court.

The proceedings in the Circuit court in this case have been somewhat irregular, but we think there is no substantial error in the record to the prejudice of the appellant.

There is no brief for the appellant and no argument, nor is there any formal assignment of errors in the petition for appeal ; but we gather from the petition, that the appellant relies on the following objections, among others, to the decree of the Circuit court: 1st. That there was no proof of the number of acres of land sold by Sively to McCaleb and Gillaspie, nor any production of the deeds.

It might be enough to say that the allegation that a portion of the Sively lands had been sold to those parties, came from the appellant’s grantor by way of defence to the claim of the appellee; and if it were important that the deeds should be produced and the number of acres shown, it was certainly incumbent on the appellant and not the appellee, to produce the evidence.

But it does in fact appear from the commissioner’s report, that he estimated “the land conveyed to Gillaspie and McCaleb, to be about one-fifth in value of the entire lands.” We think therefore that there is nothing in the objection.

The next objection seems to be that the land of the appellant was decreed to be sold without first ascertaining the exact number of acres claimed by her, and the assessed value thereof.

It is not perceived that it was necessary for either party to show the assessed value of the land, prior to a decree for the sale thereof. It is true that the la-w requires that the commissioner who may make the sale, 'x'shall report to the court the assessed value of the land sold: but that sale has not yet been made ; and it will be time enough to make such objection, when the delinquency shall in fact occur.

As to the other branch of the objection, viz : that the exact number of acres claimed by the appellant was not shown. We think, on the facts of this case, that it was wholly unnecessary to make a separate report of that matter. The entire quantity of the Sively lands, including the land sold to McCaleb and Gillaspie and the Jackson river tract, amounted to 367 acres, valued bj-the commissioner at §1,745.50. Of these lands, the commissioner estimates the lands sold to McCaleb and Gillaspie at one-fifth in value. This one-fifth, if of average value, would be 73 2-5 acres, leaving a residue of only 293 3-5 acres. Of this residue Thomas E. Cobbs, assignee in bankruptcy of Sively, sold 213 acres, which (we are justified in concluding,) embraced all the bankrupt's land, not included in the settlement on the appellant, and would leave to her 80 3-5 acres. The annual value of this settlement is proved to have been only $35; whilst the amount of judgment liens thereon is reported at $1,284.02. This latter amount would be very little if at all reduced by the proceeds of the sale made by the as-signee in bankruptcy; for the gross amount of that sale was only $355, of which we have a right to presume that but little, if any, would be left for creditors. This simple statement of facts, shows, we think, with sufficient certainty both the quantity of land claimed by appellant, and the necessity and propriety of a sale thereof.

It is further objected that it was error to decree the sale in the absence of McCaleb as a party to the suit.

There is nothing in the record to show that McCaleb was a necessary party to the suit. All that we have on *the subject is gathered from the answer of A. J. Sively, the husband, grantor and next friend of the appellant, and he does not say that the sale to McCaleb was subsequent to the settlement. On the contrary he says, “that he sold a portion of the land sought to be subjected to sale, to Joseph McCaleb; another portion to James P. Gillaspie, for both of which deeds have been made, and that by a marriage contract between this respondent and his wife, of record in the clerk’s office of Alleghany County court, she is entitled to another part of said land.” This settlement was made on the 1st of May 1868, and recorded on the 20th of July in the same year; and from the order in which the several aliena-tions are enumerated by Sively in his answer, it would seem to have been the last executed. And this is all we have on the subject, except a statement in the amended bill of the appellee, that the deed to Gillas-pie was dated May 1st, 1867, and acknowledged May 29th, 1867, more than a year before the acknowledgment of the marriage contract. The sale to McCaleb was in all probability, made before that to Gillaspie, as it was the first mentioned by the grantor in his answer; but there is literally no proof on the subject, and we are of opinion, therefore, that it does not appear that Mc-Caleb was a necessary party.

It is further objected that it does not appear that the Jackson river tract of S4 acres was ever sold. No such objection was taken in the court below; and we think it does sufficiently appear from the pleading's and proof that this land was in fact sold by the assignee in bankruptcy. He says, he sold 213 acres of land, ‘ ‘being the real estate set forth in the schedule of the bankrupt;” and as we have already suggested there was no pretension or intimation in the court below, where the matter could at once have *been made plain, that this land had not been embraced in that list and sold. It rests merely on the argumentative suggestion of counsel in this court.

The last objection which we think it necessary to notice, is that the judgment debtor had taken the benefit of the bankrupt law, and that the claim of the appellee should have been asserted in that court: that it was not proper that the debtor should be harrassed before two different tribunals at the same time.

This is an appeal by Charlotte Sively, bjT A. G. Sively her husband and next friend, and not by Sively, the debtor in his own right; and it is not for him to allege in her name, errors to his prejudice, which do not prejudice the appellant. -But if he were appellant, and was before two different tribunals at the same time, he himself was alone to blame for it. The appellee instituted his suit in the Circuit court to enforce his judgment lien against his debtor’s land, prior to the commencement of the proceedings in bankruptcy, and when the jurisdiction of the Circuit court was undoubted. Pending this suit, the debtor himself went voluntarily into the Federal court; and were he an appellant, it would not lie in his mouth to say that he is harrassed in two different courts at the same time. He could not make the objection, and his as-signee in bankruptcy who was before the court, has not made it. He has not appealed from the decree or complained of it. Indeed the latter does not appear to have considered himself entitled to the land decreed to be sold by the court. It was not surrendered to him by the bankrupt, and he does not appear to have instituted any proceeding to recover or subject it; nor has he claimed the proceeds in this court. Under such circumstances there is no reason why the appellee, who does not appear to have proved his judgment in the court of bankruptcy, should be arrested in his proceedings in the Circuit fcourt, and turned over to another tribunal which has not taken cognizance of the subject sought to be subjected. He has an unquestionable lien on the land decreed to be sold, which we think he had a perfect right to enforce in the Circuit court.

There is another objection to the decree which should be noticed. It is that the decree requires the homestead exemption to be waived by the purchaser. We do not see that this is an error to the prejudice of the appellant; but we do not wish to be understood in affirming the decree, as approving that requisition. On the contrary, we express no opinion on the question; but as the irregularity, if it exist, cannot prejudice the appellant, we have not thought proper to correct the decree. We are of opinion that there is no error in the decree complained of to the prejudice of the appellant, and that the same must be affirmed, with costs and damages to the appellee.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stating in writing and filed with the record, that the land in the proceedings mentioned, claimed by the appellant under a marriage contract with her husband, was subject to the lien of the appellee’s judgment, and that there is no error in the decree complained of.

It is therefore decreed and ordered, that the said decree of the 29th day of March 1872, be affirmed; and that the appellant, Charlotte ID. Sively,' and her husband and next friend, Andrew J. Sively, do pay to the appellee, Calvin S. Campbell, his costs by him about his defence *in this behalf expended, and thirtjr dollars damages. And the cause is remanded to the said Circuit court for further proceedings to be had therein.

All which is ordered to be certified to the Circuit court of Alleghany county.

Decree affirmed.  