#### *Mutual Assurance Society v. Stanard and Others.

Argued January 21st, 1815.

1. Judgment — Lien—Relation.*—The lien of a judgment upon the lands of the party relates hack to the commencement of the term at which it is obtained.

2. Chancery Practice — Enforcement of Judgment-Personalty — Priority of Judgment over Trust Deed.† —If a judgment creditor (without suing out execution,) file a bill in chancery, to get satisfaction out-of the real and personal property of the debtor; *263tiie whole ‘being1 conveyed "by a deed of trust, executed during the term in which the judgment was obtained, and providing that the property conveyed may be sold by the trustees to answer the purposes of the trust; Jhe court ought to dismiss the bill as to the personal property; without prejudice to the plaintiff’s right, if any, to the residuary money resulting to the debtor, from the sale of that property, after satisfying the deed; but should direct the trustees to sell the lands, and, out of the proceeds thereof, to satisfy the judgment in the first place, and afterwards to perform the trusts reposed in them by the deed.

The Mutual Assurance Society ag-ainst fire on buildings, in the state of Virginia, filed a bill in the Superior Court of Chancery for the Richmond District, against Larkin Stanard, and Beverley C. Stanard and Robert S. Chew, trustees in a deed executed by the said Larkin, for the benefit of sundry creditors of his, who were also made defendants.

The object of the bill was to obtain satisfaction of a judgment, rendered by the District Court of Fredericksburg, in favour of the complainants, against the defendant, Larkin Stanard, at April term, vii$. on the 6th of May 1808, by subjecting for that purpose a tract of land, and sundry slaves and other personal property, (“being all his estate, real and personal,”) which he had conveyed by that deed, bearing date the 28th of April, and recorded on the 9th of May 1808.(1)

The plaintiffs endeavoured to set aside the deed on the ground of fraud ; alleging that, in fact, it was not executed until the 9th of May, (the day of admitting it to record,) but was antedated for the purpose of over-reaching the lien which attached on the property by virtue of the judgment. They also prayed, that, if the charge of fraud should not be established, the court would direct an account to be taken, a sale to be made of the property conveyed, and the plaintiffs to participate in the product thereof.

Larkin Stanard, by his answer, denied the charge of fraud, but admitted, that the date which the deed purported to bear, was not the date of its execution ; that it was written a *day or two before it was executed, and was filled up at the time it was written ; denying’, however, its being executed the day it was recorded.

Beverly C. Stanard and Robert S. Chew also answered, denying all fraud. The former said, that “he, as a trustee, executed the deed one or two days after it was written, and previous to the day on which it was admitted to record the latter, that he executed the said deed of trust “some short time after the day on which the same is dated ; but that the said deed was previously executed by the other parties thereto.”

The other defendants appeared to be just creditors, and by their answers stated their claims, to satisfy which the deed was given.

It did not appear that the plaintiffs had sued out any execution upon their judgment; and no depositions were taken in support of the charges in the bill.

Chancellor Taylor was “of opinion, that, before a judgment creditor can come into this court to set aside a deed, upon the ground of fraud, or for a redemption of the property thereby conveyed, he must, upon the general principles of the court, show that his judgment at law is unavailing, by a return of the proper writs of execution ; and then, notwithstanding he might fail, upon the ground of fraud, to set the deed aside, yet he might be allowed to redeem ; for this reason, that no one can redeem, who has not an interest or a lien upon the property conveyed ; and not then, in the case of a judgment, if execution can be satisfied without any obstruction ; which can only be ascertained by a proper return thereupon ; and so this court understands the law as settled by the chancellor in England, as long since as 1744.” (a) He therefore dismissed the bill, with costs ; from which decree the plaintiffs appealed.

Wickham for the appellants.

Beigh for the appellees.

*Monday, December 4th, 1815,

*

Judgment — Doctrine of Relation. — This subject has been exhaustively treated in previous notes in this series of reports. See *foot-note*to Coutts v. Walker, 2 Leigh 276; *foot-note*to Skipwith v. Cunningham, 8 Leigh 271; *foot-note*to Jones v. Myrick, 8 Gratt. 179; *foot-note*to Withers v. Carter, 4 Gratt. 407; mono-graphic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425. The principal case was cited with approval on the subject in Coutts v. Walker, 12 Leigh 276, 279; Skipwith v. Cunningham, 8 Leigh 278; Yates v. Robertson, 80 Va. 477; Buchanan v. Clark, 10 Gratt. 176; Hockman v. Hockman, 93 Va. 456, 25 S. E. Rep. 534. *S&efoot-note*to Jones v. Myrick, 8 Gratt. 179, containing extracts from Hockman v. Hockman, 93 Va. 456, 25 S. E. Rep. 534; Dunn v. Renick, 40 W. Va. 360, 22 S. E. Rep. 70; Smith v. Parkersburg, etc,, Ass’n, 48 W. Va. 232, 37 S. E. Rep. 653; Womer v. R. Co., 37 W. Va. 291, 16 S. E. Rep. 489. (See *foot-note*to Coutts v. Walker, 2 Leigh 268, containing excerpt from Womer v. R. Co.); Lane v. Ludlow, 14 Fed. Cas. 1082.

†

Chancery Practice — Enforcement of Judgment— Satisfaction from Ail the Land. — In Buchanan v. Clark, 10 Gratt. 176, Allen, J., who delivered the opinion of the court said: “It has been supposed that the case of *jMutual Assurance Society v. Stanard,*4 *Munf.*539, decides that where after a judgment, the debtor conveys the whole of his land, and the deed provides for the saleithereof, the judgment is a charge *263upon the whole proceeds, and must be first satisfied. In that case no such question seems to have been considered by the court. It may have been known that a moiety of the property would be sufficient to discharge the judgment; and-therefore the point may not have been made. The main question in the cause was -whether the judgment could relate to the first day of the term so as to overreach the intermediate incumbrances. Having decided that the trustees took in subordination to the judgment, it became necessary to determine what effect this would have upon the rights of the parties; and the court, without deciding the general question whether the court of chancery could in all cases decree a sale of the land out and out, at the instance of the judgment creditor, directed that as the deed in that case had provided for a sale for the purposes of the trust, the whole should be sold by the trustees, who should in the first place pay the judgment out of the proceeds, and then proceed to the execution of the trust. The question as to the power of a court of chancery in such cases to sell out and out was not free from difficulty, as will appear from the remarks of Green, J.. in Blow v. Maynard, *2*Leigh 29, 57, and the case of the *Mutual Assurance Society v. Stanard*is an authority for the exercise of the power where a subsequent deed has been executed providing for the sale; but cannot be considered an authority for the other proposition, because it does not appear that it was necessary to decide it. or that it was considered.” See further, monographic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.

(1)

 Note. The deed (though not so expressed.) appeared to be a conveyance of all the property, real and personal, of the grantor. It was so charged in the bill; which allegation was not denied in any of the answers. — Note in Original Edition. 1

(a)

3 Aik. 200.

JUDGE ROANE

pronounced the court’s opinion, as follows :

The court is of opinion, that, as it appears in evidence, in this cause, that the deed of trust in the proceedings mentioned, was executed on or after the first day of the term in which the appellants’ judgment was obtained, and as that judgment relates to the said first day, inclusively, the said deed of trust could not vacate or affect the lien on the land created by the judgment; that, consequently, it was incompetent to exclude the claim of the appellants upon the land thereby conveyed ; and that the right of the trustees under the same ought to be taken in subordination thereto ; that, as the said deed provided, that the said land should be sold to answer the purposes of the said trust, the court is of opinion, that, the trustees therein named, should have been decreed to sell the same, and pay, in the first place, the principal sum, interest and costs, due to the appellants by the said judgment, out of the proceeds thereof, after which they should be held at liberty to proceed in the execution of their trust'; and that there is error in so much of the said decree as dismisses the bill in toto, instead of making the provision respecting the land.

With respect to the personal estate conveyed by the said deed, the court is of opinion, that, as it is competent to a debtor to *264prefer one bona fide creditor to another not having a lien thereupon, which lien only arises by the delivery of the execution to the sheriff; and as no execution was taken out by the appellants in this case, the court is of opinion, that the appellants have no lien or ground to stand on, either for the purpose of vacating the deed aforesaid, or of being permitted to redeem the said personal property, according to the doctrine established in the case of Shirley v. Watts, 3 Atk. 200 : but this opinion, *on*this point, is not to bar or affect the right of the appellants, if any, to the residuary money, resulting to the grantor, Stanard, from the sale of the personal estate thereby conveyed.

The court is of opinion, therefore, that, so far as the decree dismisses the bill as to the personal propérty, it is correct; *but that it was erroneously dismissed as to the land, for the reason before assigned ; and that, instead thereof, it should have made the provision herein before mentioned, in favour of the appellants.

Decree reversed, and cause remanded to the Court of Chancery, to be reformed pursuant to the principles of this decree.