#### *Stout v. Vause and Others.*

August, 1842,

Lewisburg.

(Absent Allen and Baldwin,† J.)

Principal and Surety—Who is a Cosurety Entitled to Contribution.‡—A j oint and several single bill being executed in the country by a. principal and seven sureties, to enable the principal to borrow money from a bank, and the principal, upon coming to town, finding that the rules of the bank require a town surety, application is made by him to a citizen to become such surety. This citizen having adopted a rule not to put his name on bank paper for any person, but being willing to accommodate the principal, applies to a friend to become bound on the paper, with an assurance that if the principal does not páy it off when it becomes due, he will pay it off for him. Under this assurance, that friend puts his name on the paper as a co-obligor with the other sureties, without their knowledge. And thereupon the paper is discounted by the batik. The principal makes default when the bill becomes due, and soon afterwards the citizen pays it off. Held by two j udges (Brooke and Stanard) that the citizen is to be considered one of the eight sureties, having become such in the name of his friend, and that he is entitled to contribution from all except that friend: dissen tiente Cabell, P.

Same—What Suit Pending against Absent Surety Does Not Affect Purchaser of His Land.§—The facts being as above stated, a suit iu equity was brought by the nominal surety against the cosureties, one of whom was an absent defendant owning land in the commonwealth. The suit -was resisted on the. ground that no payment had been made by the plaintiff. Subsequently, by an amendment of the bill, the surety who paid was united in the suit as a coplaintiff. In the interval between the commencement of the suit and the amendment of the bill, the absent defendant returned to the commonwealth, and conveyed the land to a purchaser for valuable consideration. Held, no lien Is created upon the land in the hands of the purchaser by these proceedings; not by the proceedings in the name of the nominal surety, because, no payment having been made by him, no decree conld be rendered in his'favour; and not by the proceedings in the name of the surety who paid, because the conveyance to the purchaser was before those proceedings.

This suit was *commenced in the*superior court of chancery formerly holden at 0 Clarksburg. The subpoena *was issued the 23d of July 1822, returnable to August rules; at which time the bill was. filed in the name of William Vause. It set forth, that Jacob Heiskell of Harrison county was indebted to the Northwestern bank of Virginia in the sum of 600 dollars, and by the request of Heiskell the following persons, to wit, Jedediah W. GofE, David Newton, John Davisson, Christian Geigley, William Hake junior, Jacob Coplin, Absalom Robinson and the complainant, became the sureties of Heiskell for the payment of the debt at the end of 60 days, and joined him in executing a joint and several single bill for such payment: that payment not being made by any of the other obligors, and the complainant being called on by the officers of the bank, he, to save his credit, and to save himself from a suit, was forced to pay and did pay to the bank the said sum of 600 dollars, with a further sum of 19 dollars 20 cents for interest chargeable thereon: that Heiskell and Newton are insolvent, and Robertson resides without the commonwealth, and has no moneys, credits or personal property within the same, but is seized of a tract of land in the county of Harrison, which ought to be made liable for his share of the debt. Heiskell and the cosureties with the 1 complainant were made defendants. And the prayer was, that such of them as were able might be compelled to pay their proportions, by dividing the loss arising from the insolvency of the others; and for general relief.

There was no endorsement on the subpoena explaining the object of the suit. Affidavit being made, at August rules 1822, of the nonresidence of Robinson, an order of publication was then entered, requiring him to appear on the first day of the following term; which order was’duly published. And Robinson failing to appear at October term 1822, an order was then entered, stating that the court would proceed to take such proof in support of the bill as the plaintiff should offer.

*The other defendants answered the bill. Heiskell admitted that he executed the obligation, and received the amount from the bank; but he did not admit that the complainant paid the debt, and he called for proof thereof. He stated that he (Heiskell) had paid into the bank, on account of the obligation, 400 dollars, for which he ought to have credit. Goff, Geigley, and Coplin admitted the execution of the obligation, and that they were sureties therein, but stated that they did not know whether the same had been paid or not. Newton, Davisson and Hake admitted the execution by them of the obligation, *117but called for proof that the complainant had paid the same.

The obligation was filed as an exhibit with the bill, with an endorsement thereon in these words: “N. W. Bank of Virg’a. Received the amount of the within bond from Noah Zane, Heiskell having failed to pay it. T. Woods cash’r.”

On the 25th of October 1823, leave was given the plaintiff to amend his bill. An amended bill was filed in the names of William Vause and Noah Zane, stating Zane to be admitted a party complainant in the cause, and setting forth, that when the obligation became payable to the bank, Zane, who had agreed with Vause to stand in his shoes and situation in all respects as regarded said obligation, paid the full amount thereof to the bank, so as to prevent a suit thereon. And the complainants prayed that the money might be refunded to them for the benefit of Zane. Whether this amended bill was filed soon after the 25th of October 1823, or not until after the order •of the 18th of May 1826, herein after mentioned, did not clearly appear from the transcript of the record sent to the court of appeals. It was copied immediately after the order of the 25th of October 1823. And yet, according to the entry of the 22d of May 1826, it would seem to have been filed at that time.

*On the 19th of October 1824, an order was entered, stating, that on *the*motion of Benjamin Stout, and *by-consent*of parties, he was made a party defendant in the cause. And on the 22d of the same month, on the motion of the plaintiff, he had leave to amend his bill for the purpose of making Stout a party. At February rules 1825, Stout filed his answer, stating, that he had purchased from Robinson the tract of land in the bill mentioned; that at the time of his purchase, he had no knowledge of the alleged liability of Robinson, as the surety for Heiskell, to the plaintiff; and that, being a purchaser for valuable consideration, and having paid the purchase money, he conceives he ought not to be disturbed in his purchase. He alleges that Heiskell procured Zane to make the payment for him, and contends that if the principal debtor, without the knowledge or consent of the sureties, has procured a third person to make payment, such third person cannot, either by an agreement with one surety, or by any other means, charge the other sureties, but the obligation is as to them ■extinguished. The fact he states to be, ■“that the complainant Vause has merely lent his name to the said Zane, in order to prosecute a suit by which it shall appear that the money was paid by a cosurety; and that any recovery that can be obtained is to be for the exclusive benefit of the said Zane.”

According to the record sent to the court ■of appeals, an entry was made on the 18th of May 1826, on motion of the plaintiff, giving him leave to amend his bill by making Zane a party plaintiff; and another entry was made the 22d of May 1826, of the filing of such amended bill. By agreement of the parties, the answers previously filed were received as answers to the amended bill; and the following facts were also agreed:

“Isaac Heiskell wished to borrow money from the Wheeling bank. By the rule of the bank, an indorser *in Wheeling was required from their borrowers. Heiskell applied to Noah Zane to become such indorser. Zane, having adopted as a rule for his government in relation to the bank, not to become indorser for any person, but being willing to accommodate Heiskell, applied to the plaintiff Vause to become such indorser, with an assurance to the said Vause, that if the said Heiskell did not pay off the said note when it arrived at maturity, he Zane would pay it off for him. Under this assurance by Zane, Vause indorsed the note, and it was discounted by the bank. When the note became due, Heiskell failed to pay it off, and thereupon Zane paid it off. The foregoing arrangements were made without the knowledge or agreement of the other sureties.”

The note mentioned in this agreement of facts was the joint and several single bill before mentioned. Before the application to Zane, it had been executed by Heiskell and seven sureties as co-obligors, payable to the Northwestern bank. Vause became an additional obligor.

The cause coming on to be heard the 25th of October 1828, the chancellor was of opinion that the plaintiff Zane had, by an original arrangement with the plaintiff Vause, who executed the single bill at his request, bound himself, if Heiskell did not pay off the same, to pay it for him; and that Zane was invested with all the liability, and all the rights and indemnities, of Vause: and it being admitted that Heiskell was insolvent, and the death of Goff being suggested, the court decreed that the plaintiffs recover of each of the defendants Newton, Davisson, Geigley, Bake, Coplin and Robinson, the sum of 75 dollars with interest from the 21st of March 1822 until payment, and that the defendants pay to the plaintiffs their costs. And there being no personal fund of Robinson within the power or jurisdiction of the court, commissioners were appointed *to go upon the land mentioned in the bill as the property of Robinson, *and now in*the tenure of Stout, and value and appraise the same. And the cause was continued, with leave to the plaintiff Zane, in case any one or more of the defendants against whom the decree was rendered should prove to be insolvent, to apply to the court by petition for further contribution against such as should be solvent.

The commissioners valued the tract of land,-which was said to contain 480 acres, at 7 dollars per acre, making the total value of the tract 3360 dollars. Under the reservation in the decree, Zane filed a petition, setting forth, that executions had is*118sued upon the decree, under which Geigley, Lake and Coplin had taken the oath of insolvency, and Newton and Davisson had been returned no inhabitants of the commonwealth ; that previous to the decree, however, the last two named defendants had taken the oath of insolvency in other cases ; and that Goff had, in his lifetime, taken the oath of insolvency, and died insolvent. The petition therefore prayed a decree against Robinson for one half the amount decreed against the other sureties, and that the land be decreed to be sold for the same. The facts stated in the petition were proved by depositions and exhibits.

Stout filed a petition for a rehearing of the decree, for reasons set forth in a cross bill.

By the cross bill, and the evidence in'support thereof, it appeared, that there were suits in equity against Robinson as an absent defendant, to subject the land, prior to that of Vause; that Robinson returned to Virginia, and requested Stout to become his surety, to enable- him to appear and defend those suits; that Stout became such surety, upon Robinson’s making a deed of trust on the land to indemnify and save him harmless on account of his suretyship, and also to secure a debt which Robinson owed him; that afterwards Stout agreed to pay the said ’’creditors of Robinson, other than Vause and Zane; and that Robinson, in consideration thereof, and of the previous debt which he owed Stout, convéyed the land absolutely to Stout. This conveyance bore date the 26th of February 1823, and was admitted to record in the office of Harrison county court on the same day.

The cause was farther heard before the circuit court of Harrison county on the 17th of May 1832. The court denied the petition for a rehearing, and decreed against Robinson the further sum asked by Zane’s ' petition; and there being no personal fund in the power of the court belonging to Robinson, and bond with security being filed by the complainant Zane, conditioned according to law, the court thereupon decreed a sale of the land-

On the petition of Stout, an appeal was allowed. Among the errors assigned in the petition, were the following:

1. That no privity existing between Zane and the cosureties, the payment by Zane ought to be regarded as having been made for Heiskell, and his recourse should be against Heiskell alone, and not against the sureties, who were discharged by the payment.

2. That the proceedings of Vause created no lien upon the land in favour of Zane, the introduction of whom into the cause placed him upon the same footing merely, as if he had then brought an original suit, after a dismission of the one improperly instituted by Vause.

G. N. Johnson for the appellant.

Neither Zane nor Vause became a party to the obligation at the same time with the other sureties. Zane’s not putting his name on the bill is proof that he did not mean to be bound with the others. And though Vause put his name on the paper, it was not at the same time with the others, but subsequently, at the instance of Heiskell, and upon the agreement of Zane to indemnify. This being the nature of the contract, it might be maintained with great reason, even if Vause had paid the-*debt, that he had no right to call on the other sureties. For the claim to contribution depends on a contract, express or implied, to share equally the burthen. And it is not perceived how such contract could be implied here, when there was no privity whatever between Vause and the others. But the case is much stronger. Zane claims to be substituted in the place of Vause, who has made no payment, and has no right of contribution to which Zane can be substituted. The principle of Hopewell & al. v. Bank of Cumberland, 10 Leigh 206, is therefore applicable. Nor can Zane make out his case independently of the doctrine of substitution. If he claims in his own right, he does not shew equality with the other sureties in the time or in any of the circumstances of the suretyship. He is not therefore upon the same footing with them, and upon the principle of Givens & al. v. Nelson’s ex’or & al., 10 Leigh 383, and Douglass v. Fagg, 8 Leigh 588, cannot claim contribution from them.

II. The original bill, and all the proceedings before Zane became a party, amounted to nothing. They were by a person who had no right. Stout’s title was therefore acquired before there was any valid lien upon the land, and must be held good.

George H. Lee for the appellees.

The rights of Zane arises out of the original contract. The agreement was not that Zane should stand between Heiskell and dishonour, but between Vause and dishonour. Zane’s agreement was to pay the money for Vause. Though there is no decision of this court exactly in point, the opinion of Carr, J., in Rnders &c. v. Bruñe, 4 Rand. 438,, may be referred to for the equitable principles which govern in such cases.

II. The suit might have been maintained in the name of Vause, without making Zane a party. And if such suit there had been a decree, Zane could not have maintained a suit af.terwards for the same money. There was such privity between Vause and Zane, that Zane *would have been bound although not a party. If this be so, it is an answer to the second point. And if it be not so, the doctrine of lis pendens does not require that every person who appears to be a necessary partjr should have been before the com-t at the time of suit brought. On the contrary the doctrine is, that a purchaser is bound by the decree which may be made in the suit, whether the proceedings be regular or irregular. And though it may be necessary to amend the bill and suggest new matter, the lis pendens is not brought down to the time of *119the amendment. Walker v. Smalwood, 2 Amb. 676; Murray &c. v. Ballou &c., 1 Johns. Ch. Rep. 566; Bishop of Winchester v. Paine, 11 Ves. 194; Style v. Martin, 1 Ch. Ca. 150; Garth v. Ward, 2 Atk. 174; Sorrell v. Carpenter, 2 P. Wms. 482. The only modificati on of the principle is where there is great and unnecessary delay. In the present case, the application for leave to amend was not resisted, but the bill was filed without objection, and asserted a claim for the same money that was sought to be recovered by the original bill.

Price, on the same side. Though the name of Vause was used, Zane was the real surety. After Zane paid, if a motion had been made in the name of Vause for the money so paid, though Vause had been unwilling, a court of law would have compelled him to let his name be used. But here we are in a court of equity. And this court will surely regard Zane as the real surety, having the right to call on his cosureties.

II. The proposition seems clear, that when a suit is once instituted, a purchaser of the subject in controversy is bound by all the consequences of the suit. And the introduction of a new party cannot prevent its having this effect.

C. Johnson in reply.

The rights of co-sureties against each other are rights of indemnity; and when one claims contribution as a cosurety, he must shew that he is such, *and has paid. The sureties need not be bound by the same agreement, or at the same time; but it must in some way be ascertained that they are cosureties. Here it does not appear that there was any privity of contract. It does not appear that any of the sureties except Vause knew what Zane was doing, or that Zane knew what any of them except Vause was doing. Zane did not agree to be surety, but to indemnify a man who would become surety. He never said to Robinson that he would indemnify him if he had to pay more than his share. A co-surety can claim indemnity upon no ground except that the principal is unable to pay. If Vause had paid the money, he could not have proceeded against Robinson until he ascertained that Zane was unable to pay. Suppose that after the bill was executed, the agreement had been made to indemnify, and Zane had then deposited money in bank, which was used, when the bill became payable, to take it up; could Zane have had contribution? If he could not, what difference is there between a prior and a subsequent agreement; between an agreement without, and an agreement with a deposit? When a bill of exchange is taken up, for the credit of the acceptor, by another, that other has no claim against any one but the acceptor. And here, if Zane had paid at maturity, the payment must have enured to the benefit of all the sureties. Every indemnity given to one I surety enures to the benefit of all. And this principle applies, whether the indemnity proceeds from the principal debtor or from a third person. All must be common sufferers. One must not be under guise arid free from danger, while there is risk upon all the others. And the contract must be one of equality. A party who could not have been subjected as cosurety, can have no right to recover as such. Here there were no means of resorting to Zane. If Vause had become insolvent before payment, a cosurety could not have obtained indemnity either from him or Zane.

*11. What is Stout to be charged with notice of, upon the doctrine of lis pendens? It must be of that which appeared in the cause that was pending; to wit, that Vause claimed as creditor, and had attached to satisfy that claim. And if Vause had turned out to be creditor, the purchaser would have been subordinate to his claim. Eor the title which the purchaser gets is subject to such claim as the plaintiff has asserted against his vendor, provided a decree be rendered for the claim in that suit. But here no decree has been rendered for the claim asserted by Vause. If the suit had been proceeded in upon his bill, he could not have shewn that he was the creditor of Robinson, and his bill must have been dismissed with costs. It was error to permit Zane to be united with Vause, for the purpose of showing that Vause had not title, and that Zane had. The case of Sorrell v. Carpenter, cited on the other side, shews that the court ought to have refused leave to the plaintiff to amend his bill for any such purpose. At all events the claim must be regarded as a new claim of Zane, not asserted until the amended bill was filed. And the case of French v. Loyal Company, 5 Leigh 627, shews that the doctrine of lis pendens is confined to one who purchases, from a party to the suit, a right which the plaintiff has asserted in his bill, and which is successfully prosecuted by him in that suit. Here the purchase by Stout cannot be considered as made pending the suit of Zane. Moreover, at the time Zane commenced his proceedings, Robinson could not have been proceeded against as an absent debtor; and the amended bill alleges no facts to shew that he was liable then to be proceeded against as such. The doctrine of lis pen-dens has in truth nothing to do with the case. It rests upon the foreign attachment law, under which the creditor suing out the attachment, and claiming a lien by it, must shew himself to be a creditor. A plaintiff who has attached for £100. would not be allowed to amend *his bill and make his case an attachment for £1000. to the prejudice of an intervening purchaser; surely not, if, at the time of the amendment, no new attachment could be commenced.

*

For monographic note on Lis Pendens, see end of case.

†

They had each of them been counsel for the appellant.

‡

 Sureties—Contribution.—See *foot-note*to Preston v. Preston, 4 Gratt. 88. The principal case Is cited in Stovall v. Border Grange Bank, 78 Va. *193;*Sherman v. Shaver, 75 Va. 10; Hansberger v. Yancy, 33 Gratt. 527.

The principal case is cited in Rosenbaum v. Goodman, 78 Va. 127, to the point that the right of mutual contribution exists only amongst those who are cosecurities, that is, sureties for- the same thing, and bound for the discharge of the same duty, whether by the same or different instruments at the same or different times, and with orwithoutthe knowledge of one another. See also, Harrison v. Lane, 5 Leigh 4(4, and monographic *note on*“Subrogation” appended to Janney v. Stephens, 2 Pat. & H. 11.

§

 What Suit Pending against Absent Surety Does Not Affect Purchaser of His Land.—The principal case is cited in Osborn v. Glasscock, 39 W. Va. 760, 20 S. E. Rep. 706; 5 Va. Law Reg. 412.

STANARD, J.

The first question to bo solved in this case is, does the record shew any valid claim in any one subject to the defendants, seven of the sureties of Isaac Heiskell in the bill discounted , at' bank, to contribution for the payment made (on the *120default of the principal) to taken up that bill? This depends on the enquiry, whether the bill was taken up by a suret3' under circumstances to authorize the sureties against whom the claim of contribution is preferred, to make the payment subservient to their indemnity, in exoneration of the duty to contribute; or under circumstances to leave them subject to that duty. If the obligation of suretyship, by virtue of which the payment was made, be not, in its substance and nature, that of one of several original sureties, then, according to the circumstances under which the obligation may have been incurred, the original sureties may be exempt from the duty of contribution altogether, and the new surety, on the other hand, be liable to indemnify them; or they may be bound to make full indemnity to such new surety paying the debt. Thus if the creditor, in the pursuit of his remedy against the principal debtor, obtains an additional security, as bail on the writ, or surety in the forthcoming or prison bounds bond, and such bail or surety pays the debt, he has no claim to contribution against the original sureties, and those sureties have the right, if they pay, to enforce his obligation for their indemnity. Examples of the application of this principle are furnished by the cases of Parsons v. Briddock, 2 Vern. 608, and Givens & al. v. Nelson’s ex’or & al., 10 Leigh 382, and many others that might be cited. If, on the contrary, the case be that of a creditor who, having the obligation *of the principal debtor and sureties, and desiring additional security, obtains the undertaking of a third party to pay the debt if the obligors do not, the discharge of the debt by this *hird party, under the obligation of this undertaking, entitles him to full indemnity from the sureties in the original obligation. If the suretyship be substantially and in its nature that of one of several original sureties, on the payment under its obligation, the duty of contribution attaches to the other sureties. Was the payment in this case made by a party whose obligation was of this nature?

Coupled with the facts agreed by the parties, the following are shewn by the record. Before the application of Heiskell to Zane, he and the seven sureties (defendants) had made their single bill payable to the Northwestern bank. This bill he proposed to discount at the bank, for which purpose it was necessary that he should have an “endorser” (that is, a surety in the bill) living in Wheeling: and accordingly, under the arrangement made with Zane, Vause became a cosurety.

The rights and obligations of the parties depend on the facts so agreed and shewn. It is contended by the appellant that the just conclusion from them is, that Zane undertook to pay the money for Heiskell if he failed, that is, to assume the obligation of Heiskell on his failure, and by performing for him, to' relieve and save harmless the surety Vause; and that such obligation, or at least the performance of it, enured to the benefit of all the sureties. It seems to me that this conclusion does not result from the facts, and is manifestly at war with any intention that can be rationally ascribed to Zane or Vause, the parties to the arrangement from which the conclusion is deduced. All that was asked of Zane was to become one of eight sureties. All that he was willing or intended to do was to incur such responsibility. This being most manifest, if not uncontested, the arrangement with Vause was but a substitution *of Vause’s responsibility for that which Zane was willing to incur, and as between Zane and Vause, made Zane liable for that suretyship which to the bank and the cosureties had been incurred by Vause. As between these parties, it was a suretyship of Zane in the name of Vause. The conclusion which converts the intended responsibility of Zane, from that of one of eight sureties, into one of indemnity to all the sureties for the whole debt, is drawn from a technical or rather a literal adherence to the terms in which the arrangement between Vause and Zane is stated in the agreed facts. That written statement should be expounded in reference to the ascertained intent and object of the parties to it, and the occasion that caused it. Vause had no possible motive to obtain from Zane an engagement that would enure to the indemnity of the other sureties, and Zane clearly did not intend to make such a one; and a construction of the terms of the arrangement deducing an engagement which the one did not seek, and the other neither intended nor was even asked to incur, is, in my estimation, hostile to the clearest principles of justice and of law. Eor this construction there is no col-our, unless the letter of that part of the agreed facts which professes to state the engagement of Zane to Vause, be insulated from the considerations that led to it, and then interpreted without regard to its object and the intent of the parties. The engagement so extracted from the statement of facts is the assurance of Zane to Vause, when he became endorser (or co-surety), “that if Heiskell did not pay off the note when it arrived at maturity, he Zane would pay it off for him.” Detached from the circumstances which led to the assurance, and from the position of the parties, such an engagement might justly involve the responsibility which the argument of the appellant has ascribed to it. Had Vause been one of many sureties to an existing obligation of Heiskell, seeking indemnity from his principal, and had *Heiskell given the indemnity, either by a lien on property, or in such an engagement of a third person, the indemnity in either form, certainly in the first, might enure to the benefit of all the sureties. But such is not the case in question. Adhering to the letter of the extracted engagement, it is argued that Zane engaged to pay the note for Heiskell. But how pay it? as the substitute of Heiskell? or in’place *121of Vause? It is the one or the other, according to the intent and object of the parties Zane and Vause. Had Zane not procured Vause to be the surety, and made no engagement with him, then, on the default of Heiskell, Vause would have been bound to pay the note; and if he paid it, he would pay for Heiskell, and such payment would subject the other sureties to the duty of contribution. Vause was the surety substituted for Zane, with the engagement of Zane to discharge the obligation Vause had incurred at his instance. The stipulation to pay for Heiskell cannot be interpreted so as to place Zane in the position of Heiskell the principal, with his obligations. According to the just interpretation, Zane stipulated to pay for Heiskell as Vause had bound himself to pay for Heiskell, that is, as one of eight sureties; and the payment made in pursuance of that engagement, by necessary intendment, would be in discharge of the obligation that Vause had assumed for him. The payment was the fruit of the obligation of one of eight sureties (all bound in the same obligation), and being made under an engagement which cast on the person making it the duty of one of eight sureties, has thereby imparted to it the qualit}' of a payment, by one surety in discharge of the obligation of all; and the duty of contribution from those who did not pay, is its legal and equitable offspring.

The seven sureties defendants, then, were liable to the claim for contribution for the payment made* in discharge of the bill, and this suit was brought to enforce that liability. It was brought in the name of Vause, *and was resisted on the ground that the payment was not made by Vause. Subsequently, Zane was united in the suit as a coplaintiff; and having ascertained that the defendant sureties were liable to contribute, the difficulty in the way of a decree on that liability was removed, as it would certainly be enforced in the name of Vause or Zane.

But the material question in this case is, what is the effect of the lis pendens? or rather, what is the time to which it ought to relate? the liability of the land in the hands of the appellant as purchaser, depending on the date from which the lis pendens takes effect. If the suit can be supported in the name of Vause alone, then there was an effectual lis pendens before Stout purchased, and his title as purchaser is overreached. Zane became a coplaintiff long after the purchase of Stout: and if the ciaim to contribution could be asserted by and in the name of Zane only, then it is argued with great force, that the suit in the name of Vause was nugatory as a lis pendens, as no decree could be rendered in that suit.

That a suit could not be sustained in the name of Vause for Vause’s benefit, I have no doubt. The beneficial interest in the claim for contribution was in Zane. It is only by regarding the suit In the name of Vause as one brought for Zane’s benefit, that title can be shewn to a decree in that suit. Could the suit be brought for Zane in the name of Vause, and was it so brought? My first impression was very strong in favour of a negative answer to the first branch of this enquiry. The general rule of the court of equity requires the person having the beneficial interest to be a party, and, if the recovery of that interest be sought, a party plaintiff asserting that right, and asking a decree to enforce it: and unless he be such party, the rule forbids a decree in respect to such interest. There were views of this case presented in the conference with one of my brethren, and in the course of my own reflections on it, that weakened this *first impression, and furnished at least plausible reasons to extricate the case from the operation of the general rule. But the first impression has not been removed, and I conclude that Zane was a necessary party plaintiff; and if so, there was no lis pen-dens in respect to the only party interested in its operation, until he became a coplaintiff. I adopt this conclusion with the less hesitation in this case, because, had I reached a different one, a difficulty in sustaining the suit in the name of Vause would still be presented by the second branch of the enquiry, to wit, was the suit in the name of Vause so brought by Zane for his benefit? The accession of Zane to the suit as a coplaintiff, long after Stout had been admitted a defendant, and had resisted the claim in the name of Vause, and claimed protections as a purchaser for value, is the only ground for the implication that the suit in the name of Vause was instituted by Zane for his benefit. The propriety of an implication having so large an effect on the interest of the parties, is at least most doubtful.

On the whole, I am of ' opinion that the decrees in this case, so far as they subjected the sureties to contribution, and required the defendant Robinson to contribute in respect to the insolvent sureties, are right; but that the same are erroneous so far as they charged the land in the hands of the appellant (who purchased it before there was a claim asserted by a party entitled to a decree, and consequently before there was an effectual lis pendens) with the amount decreed to be paid by Robinson; and that the bill, as to Stout the purchaser, ought to have been dismissed.

CABELL, P., held, not only that the proceedings created no lien upon the land in the hands of the purchaser, but also that Zane had no right to contribution. He was of opinion that the decree should be reversed and the bills dismissed in toto.

But

*BROOKE, J.,

concurring with Stanard, J., the decree of the court of appeals declared, that the decree of the court below, so far as it subjects the land claimed by the appellant to the amount decreed to be paid by Robinson to Vause and Zane, be reversed and annulled; that the bills of Vause and Vause & Zane be dismissed as to *122the appellant; that the appellant recover his costs expended, as well in his defence in the court below, as in the prosecution of his appeal here; and that, in all other respects, the decree of the court below be affirmed.