#### *Haleys v. Williams.

March, 1829.

[19 Am. Dec. 743.]

(Absent Brooke, P., and Coajuter, J.)

Judgments — Order of Satisfaction.* — If several creditors by judgments of different dates, resort to a court of equity, for satisfaction out of an equitable interest of their debtor in real estate, they are to have satisfaction out of the fund, according to the order of their judgments in point of time, the elder being entitled to priority over the younger.

Same — On What a Lien.† — In equity, judgments are liens on the whole of the debtor’s equitable estate in lands; so that not a moiety only but the whole fund is first to be applied to satisfy the elder judgment, and not a moiety only but the whole of the residue is then to be applied to satisfy the younger judgment.

Same — Elegit — How Lands Extended — Quaere. — Whether if there be two judgments of different dates, and elegits on each, and a moiety of the debtor’s lands be extended on the elder, the whole instead of half only of the other moiety, be not properly extendible on the younger judgment.

By deed dated June 10, 1823, .Mereday Haley conveyed to his sons Philip and William Haley, in fee, a mill and sixty-five acres of land thereto adjoining, and another tract of sixty acres, lying in Caroline county. The consideration expressed in the deed was 1500 dollars, and a receipt for the money of the same date with the deed, was subjoined to it.

The same Mereday Haley, by deed dated June 18, 1823, conveyed to Samuel Chiles and Timothy Chandler, trustees, a tract of 340 acres of land in Caroline, and the same mill and lands comprised in the deed of June 10, 1823, ten slaves, sundry stock of horses, cows &c. plantation utensils, and household and kitchen furniture, in trust, to secure a debt of 1099 dollars due by M. Haley to F. James & Co. and another debt of 935 dollars due to his son Joseph C. Haley.

And, by deed dated October 1, 1823, Mere-day Haley conveyed to George Martin, 176 acres of land, apparently parcel of the largest tract comprised in the deed of trust of June 18, 1823, for the sum of 1200 dollars, whereof Martin paid 50 dollars, and gave his bond for 1150 dollars, which bond M. Haley transferred to his son Joseph C. Haley.

F. James & Co. shortly after the deed of trust of June 18, 1823, was executed, assigned the debt thereby secured, *and the security, to Philip, William and Joseph C. Haley, sons of Mere-day, for a full and fair consideration. And on the 29th September 1823, the assignees had a sale made under the deed of trust; at which Philip Haley purchased three of the trust slaves, and sundry articles of furniture, at the price of 239 dollars; William Haley purchased four slaves, a horse and some furniture, for 337 dollars; and Joseph C. Haley purchased three slaves, for 105 dollars. These sales were so conducted as to prevent competition, and the prices shew that there was none.

After all these transactions, James Williams and- Richard Williams, recovered judgments against Mereday Haley, for debts contracted before any of the deeds above mentioned had been executed; and sued out executions, which were unavailing. James’s judgment was the eldest.

And then they exhibited their bill, in the superiour court of chancery of Fredericksburg, against Mereday Haley, Philip, William and Joseph C. Haley, Martin and F. James & Co. charging that the deed of June 10, 1823, was altogether voluntary and fraudulent; that the deed of trust of June 18, 1823, though fair so far as it secured the debt to F. James & Co. was fraudulent so far as it secured the debt of 935 dollars to Joseph C. Haley, no such debt having been *57due; that the sales under the deed of trust of September 29, 1823, were fraudulent; and that though the sale of October 1, 1823, of 176 acres of laud to Marlin, was fair so far as he was concerned, the transfer of his bond for 1150 dollars of the purchase money, by M. Haley, the father, to Joseph C. Haley, the son, was fraudulent: And praying, that all the transactions, thus impeached as fraudulent might be .set aside, and the property subjected to their judgments. The defendants filed their answers; and a volume of depositions in relation to the frauds charged in the bill, were taken and filed by both parties. The chancellor held that the charges of fraud were fully proved, and pronounced an interlocutory decree according with the prayer of the bill. The Haleys appealed to this court.

*The cause was argued by Stanard for the appellants, and Johnson for the appellees.

The argument turned chiefly on the questions of fact touching the imputed ■frauds; but in the course of it, two points of law were suggested. 1. The chancellor’s decree directed, that R. 'Williams, the junior judgment creditor, should participate equally with J. Williams, who had the elder judgment, in the distribution of the funds held liable to the judgments, whether those funds should be sufficient to satisfy both judgments or not; and the question was whether the elder judgment was not entitled to priority of satisfaction to its full amount? 2. Whether the whole of the real subject was bound by the judgments, or only three-fourths thereof, that is, a moiety by the elder, and a moiety of the other moiety by the junior?

*

 Judgments — Order of Satisfaction. — Amongst incumbrancers, where all having nothing but equities, and none the legal title, their equities being equal, they are entitled to satisfaction according to the priority of their incumbrances in point of time, upon the maxim *am prior est in*tempore, *potior est in jure.*Coutts v. Walker, 2 Leigh 280, citing *Haleys v. Williams,*1 *Leigh*140. To the same effect the principal case is cited in Michaux v. Brown, 10 Gratt. 619; Hale v. Horne, 21 Gratt. 122; Findlay v. Toncray, 2 Rob. 377.

†

Decrees — On What a Lien. — A decree creates a lien on the debtor’s equity of redemption under his deed of trust; for though the equity of redemption could not be sold under a *ft. fa.*and was not extendible, yet the decree constituted an equitable lien thereon, entitled to priority over subsequent liens by judgment or otherwise. Findlay v. Toncray, 2 Rob. 377, citing *Haleys v. Williams,*1 *Leigh*140; Coutts v. Walker, 2 Leigh 268. The principal case is also cited in Nickell v. Handly. 10 Gratt. 339, and in McClung v. Beirne, 10 Leigh 405, citing the principal case, it is said, the equity of redemption in land conveyed in trust should have been first sold out and out, — not a *moiety*only, but the whole.

But where a creditor, standing on the lien of his judgment alone, comes into a court of equity to remove an obstruction interposed by a fraudulent conveyance in the way of his remedy at law against the legal estate of his debtor, a court of equity cannot enlarge his rights so as to reach property not liable at law; the most it has done in such cases, is to expedite his remedy by decreeing a sale of the *moiety.*McNew v. Smith, 5 Gratt. 88, citing principal case. See also, citing principal case, *foot-note*to McClung v. Beirne, 10 Leigh 394. To the same effect the principal case is cited in Buchanan v. Clark, 10 Gratt. 177.

In Cronie v. Hart, 18 Gratt. 745, it is said, in respect to the third and last inquiry suggested, it will be seen that the language of the Code is very clear. After declaring, that “the lien of a judgment may always be enforced in the court of equity,” it does not authorize such court to decree a sale of real estate, or any part thereof, unless “it appear to such court that the rents and profits of the real estate, subject to the lien, will not satisfy the judgment in five years.” This enactment was doubtless designed to clear up the difficulties arising under the decisions of *Haleys*v. *Williams,*1 *Leigh*140, Blow v. Maynard, 2 Leigh 29, Tennent v. Pattons, 6 Leigh 196, McClung v. Beirne, 10 Leigh 394, and McNew v. Smith, 5 Gratt. 84, cited by counsel for defendants in error; and to fix the grounds and extent of equitable jurisdiction in the enforcement of judgment liens. These cases left in doubt as to what was the precise limit of the discretion to be exercised in decreeing satisfaction of the rents and profits; so that it was peculiarly fit for the assembly to regulate the matter by positive enactment. This is done in language clear enough to comprehend all cases; nor does it seem that there is any ground to suppose from the report of the revisors as was ingeniously contended for, that the case of original equitable jurisdiction to set aside a fraudulent conveyance was not designed to be embraced by these terms. See monographic *notes*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425, and “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

GREEN, J.

The transactions impeached in this case, are so palpably fraudulent, that it would be a waste of time to discuss the proofs in detail. The decree subjecting the property in question to the satisfaction of the plaintiffs’ judgments, is, therefore, right in principle, but it is erroneous in its details in several particulars. (Here the judge pointed out several errors in the details of the decree, and indicated the proper corrections thereof: they involved no principle. )

The decree directs, that Richard Williams shall participate equally with James Williams, in the distribution of the funds held liable to their demands, whether they be sufficient to pay them in full or not; whereas the latter having obtained the first judgment and placed the first execution in the sheriff’s hands, is entitled to priority, both in respect to the real and personal property, the judgment binding the former, and the execution delivered, the latter, in equity. It is a settled rule in respect to the satisfaction of judgments, and other liens upon an equitable fund, where neither has the legal title, that all are to be paid according to their priority in point of time, upon the maxim, in equali jure, qui prior est in tempore, potior est in jure. Symmes v. *Symonds, 4 Bro. P. C. 328; (Tomlin’s edi.); Brace v. The Dutchess of Marlborough, 2 P. Wms. 495. And in this case the fund is equitable, so far as the judgment creditors are concerned, the legal title being in the trustees for the security of the debt due to E. James & Co. which has a priority over the judgments.

This leads us to a more particular examination of the questions, suggested in the argument, as to .the extent to which the plaintiffs’ judgments, and the proceedings under them, operated as an equitable lien upon the trust property. As to which, it was insisted, on the part of the apxjellants, that only three-fourths of the land was bound, a moiety by the first judgment and a moiety only of the remaining moiety by the second. This question might be very properly raised, if the subject upon which the judgments operated, was lands, of which the debtor was seised, and which might be extended at law. And, even in that case, I should strongly incline to the oxfinion, that two judgments at different times, would, under all circumstances, and no matter when elegits were taken upon them and executed, bind the whole of the debtor’s land, each a full moiety. The words of the writ command, that a moiety of the lands of which the defendant was seised at the time of the judgment, or at any time after, shall be delivered to the plaintiff. If, therefore, an elegit upon the second be executed before one upon the first judgment, a moiety would be taken: for, the debtor in that case, would continue seised of the whole, and no injury would be done to the creditor who had the prior judgment, as a moiety would be left to satisfy his elegit; and as to the effect of two elegits under those circumstances, there does not appear ever to have been any doubt. So, if an elegit were executed on the prior judgment, and afterwards an elegit taken upon the latter, it seems to me that the remaining moiety might be taken; for, notwithstanding the extent under the first elegit, the debtor continues seised of the land extended, since the tenant by elegit has no freehold, but only a chattel interest which goes to his executor, and is extend-i ble only *as a chattel. 2 Inst. 396; 10 Vin. Abr. 543; Execution, M. pl. 1, and the notes there; 11 Id. 173, 5, Executors ; Z. 2, pl. 6, 23, 30, 34. Accordingly, it was held, that the whole of the land might be taken by two successive elegits, tinder these circumstances; 10 Ed. 2; Execution, cited at the end of the case of Huit v. Cogan, Cro. Eliz. 483. In this last case, however, the court held, that the second elegit should only take a moiety of the remaining moiety, but advised the sheriff to return the special matter: the point, therefore, does not appear to have been adjudged. Again, in the case of The Attorney General v. Andrew, Hardr. 23-27, in which it was held, that upon two contemporary judgments, the whole might be taken, a moiety under each, it was said in argument, that upon a second elegit only a moiety of the remaining moiety could be taken; for which was cited Huit v. Cogan, before notice, and Burnham v. Bayne, 2 Brownl. 96, in which that point was agreed by all the judges. And in Pullen v. Burbeck, 12 Mod. 357, Holt, C. J., said, that although, in such a case, only a moiety of the remaining moiety ought to be taken, yet if the whole of the remaining moiety be in fact taken, this is well, and no audita querela would lie. Although, then, there *58is no adjudged case, contradicting that of the 10 Ed. 2, yet these repeated and imposing dicta would induce me to pause, if it were necessary to decide that point in this cause, though upon the whole, I should probably follow the ‘ ancient- decision, as conforming to the literal effect of the writ, and the true spirit of the law.

It is, however, unnecessary to decide that point here, since if the lien of a judgment upon an equitable subject, was in all respects analogous to its lien upon lands of which the debtor had a legal seisin, upon the principle that equity follows the law; yet no elegit being in fact executed or capable of being executed, a court of equity upon the familiar principle of marshaling securities, according to which, when several have-liens upon the same subject, they will be so arranged in equity, that he who has the prior securitj', shall use it in such a way as not to affect the interest of the ^others, if that can be done without injury to himself, would postpone the effect of James Williams’s elder to that of Richard Williams’s junior judgment, so as to make the case analogous to that at law, where an elegit upon a posterior judgment is executed before one is taken out on a prior judgment, in which case each would take a full moiety. (See the cases referred to in 1 Mad. Chan. 202, upon the subject of marshaling securities.) The rights, how'ever, of judgment creditors, in respect to an equitable fund, are not analogous of their rights at law, but stand, particularly in respect to property in mortgage, upon an intirely different foundation. A judgment creditor acquires an equitable lien upon the equity of redemption in the debtor’s property subject to mortgage. And a court of equity, upon the principle that equity follows the law, would, if it were practicable, only give the same effect to the equitable lien, as would be given to it at law, if the subject of the lien was a legal title; that is, would only subject a moiety. But that is impracticable; since the only means by which a court of equity can enable the creditor to reach the equity of redemption, is to allow him to redeem; which cannot be done, with a proper regard to the rights of the mortgagee, without requiring him to redeem in toto, and not for a moiety only. The consequence of which is, that, acquiring by that means the legal title to the whole, the creditor cannot be redeemed by the debtor, without paying not only the whole of the mortgage debt, but also the whole of the judgment, upon another principle of equity, that he that asks equity must do it. An example of this is to be found in the case of Stileman v. Ashdown, as reported in Ambler, p. 13. See also Bacon v. Ashby, Finch. Rep. 366; Morret v. Westerne, 2 Vern. 663. To the purposes of this case, the deed of trust has the same effect as a mortgage.

In strictness, R. Williams’s judgment, upon which no execution had been put into the sheriff’s hands, at the time of the filing of the bill, was no lietj in equity, upon that portion of the trust property which was personal, nor could he rightfully *resort to a court of equity as to that subject. Shirley v. Watts, 3 Atk. 200. Yet he was right in court, as to the lien of his judgment on the equity of redemption in the land, as was James Williams, in respect both to the real and personal subject. And R. Williams having placed an execution in the hands of the sheriff, pending the suit, which has been returned nulla bona, he might reach the personal fund, by filing a supplemental bill, if that were necessary. But it is not: he, like any other creditor who had acquired a lien upon the personal property in question, by judgment and execution delivered to the sheriff, may exhibit his claijn before a commissioner without a bill, and have satisfaction out of the fund, according to his rights in respect to priority. Burroughs v. Elton, 11 Ves. 29.

The result is, that the defendants Joseph, Philip and William Haley are entitled, first, to satisfaction out of the trust fund, for the balance of the debt due originally to F. James & Co. secured b3,i the deed of trust, and transferred to them, after deducting whatever they may be found to have received, from the hires of the slaves and the rents and profits of the mill and lands, or for the disposition of any of the slaves, and the value of the personal property which they acquired under colour o± the sale of September 29, 1823; and James Williams next, and then Richards Williams, are entitled to satisfaction of their judgments, or of so much of Richard Williams’s as may be due, out of the residue. And any surplus should be paid over to such of the defendants, as may shew that he or they are best entitled to it.

CARR, J.

With respect to the remarks of my brother Green, on the subject of the elegit, viz. that if the elegit of A. be levied on the half of B.’s land to-day, and to-morrow C. get a judgment against B., C. by his elegit can take the other half of the debtor’s land; I do not mean to say that I am against it: my impression has been otherwise; but I have not examined the subject, nor does it arise in this case. I mean merely to say, that I have no opinion with respect to it.

*CABELL, J.

I wish it to be understood, that I give no opinion on the question, how far two elegits-may, under all circumstances, be made to reach the whole land of the debtor. That question is not necessars- to be decided in this case.

The whole court concurred in a decree approving the principles of the chancellor’s decree, but correcting several of its details, and conforming with the results stated in the opinion of judge Green.