#### *Smith v. Browne’s Adm’r and Morton’s Adm’r.

March, 1838,

Richmond.

(Absent Brookr, J.)

Lis Pendens — Waiver of Claim against Purchaser Pendente Lite* — Case at Bar. — If, pending a suit in chancery for recovery of slaves and their profits, one of the slaves is sold by the defendant, and the plaintiffs ask and obtain a decree against the defendant for the value of the slave sold, they thereby waive their claim against the purchaser pendente lite for the specific property.

In September 1817, an interlocutory decree was made by the superiour court of chancery of Fredericksburg, in a suit wherein the appellees and others were plaintiffs, and John Fox administrator of one Threikeld and husband of Threlkeld’s daughter was defendant ; by which decree the court declared, that the plaintiffs were entitled to a female slave named Kate and her increase, and that the defendant should deliver to them all the descendants of Kate that were in his possession or power, and should render an account of the profits of the slaves &c. The defendant appealed from that decree to this court; by which, on the 1st April 1828, the decree was affirmed, with some modifications.

Immediately after the cause got back to the court of chancery, namely, on the 26th April 1828, upon a, suggestion of the plaintiffs, that, since the decree of September 1817, and while the cause was pending in the court of appeals, a slave named James, one of the descendants of the woman Kate, had been given by the defendant John Fox to his son Elijah Fox, subject to the claim of the plaintiffs, and that slave had come to and was now in the possession of Yeatmans Smith (the now appellant), — the court made a rule upon Smith to deliver the slave James to the marshal of the court to be by him delivered to the plaintiffs, unless he should shew *cause to the contrary at the next term. This rule was served on Smith : but it appeared that no further proceedings were had on it.

The order for the account directed by the decree of 1817, was then put into the hands of a commissioner of the court to be executed. The commissioner made a report in February 1829, by which it appeared, that there was a large amount of profits of the slaves in question for which the defendant Fox was accountable, and that some of the slaves had been sold, among whom were the above mentioned slave James and another named Henry, and the proceeds of the sales, exclusive of the proceeds of the sale of Henry, amounted to 1326 dollars. And the cause coming on for hearing on the report, in May 1829, the court decreed, that the defendant should pay one moiety of the sum due for profits, and one moiety of the 1326 dollars, proceeds of the sales of slaves exclusive of Henry, to the administrator of Browne, and the other moieties to the administrator of Morton ; (that is, the court decreed, that Fox should pay those parties the proceeds of the sale of the slave James, but not those of the slave Henry); “the plaintiffs waiving any decree against Fox for the value of the slave Henry, and reserving liberty to apply for further relief against Fox as to that slave.”

In June 1835, the circuit superiour court of Spotsylvania, (to which the execution of the decrees of the former court of chancery of Fredericksburg appertained), — on the motion of the administrators of Browne and Morton, the now appellees, suggesting that since the decree of September 1817, the two slaves James and Henry, descendants of the slave Kate, had been transferred from the possession of the defendant John Fox to his son Elijah Eox, and had since come to the possession of Yeatmans Smith the now appellant, — made a rule upon Smith to show cause at the next term of the court, why he should not be ordered to deliver the slaves James and *Henry to the appellees, and to account for the profits thereof since they came to his hands, or submit to such other order in the premises as the court should think proper.

The facts of the case appearing on this rule, collected from the answer of Smith thereto, and the evidence of witnesses, were as follows —The slave James was taken by the sheriff and sold under an execution against Elijah Eox, in 1827, and was purchased at the sheriff’s sale, by Smith, who had ever since and still held possession of him. As to the other slave Henry, he was conveyed by a deed of trust in January 1827, to a trustee, to secure a debt due to Smith : and afterwards, during the same year, this slave was in Smith’s possession for one or two days, and Smith desired and intended to purchase him ; but it appeared he did not ; for the slave was taken sick, declared he would not live with Smith, ran off, and returned to the farm of Eox; and then Fox *112sold him to one Alsop, and Smith had him carried from Eox’s farm and delivered to Alsop, who, by Eox’s directions, paid the purchase money to Smith. Smith had no actual notice of the decree of September 1817, whereby these slaves were declared to be the property of the appellees, or that they had any claim to them.

The circuit superiour court was of opinion, that Smith was liable for the slaves James and Henry, as the purchaser thereof pendente lite, and therefore made the rule absolute, and directed Smith to deliver the slave James to the appellees, and to pay them 350 dollars the purchase money of the slave Henry, which he had received from Alsop ; but the court refused to make Smith account for the profits of James, or for interest on the purchase money he had received for Henry. From which order, this court, upon the petition of Smith, allowed him an appeal.

Stanard, for the appellant.

Moncure and Harrison, for the appellees

*

Lis Pendens. — The principal case was cited in Osborn v. Glasscock, 39 W. Va. 760, 761, 20 S. E. Rep. 706. On this subject, see generally, monographic *note*on “Lis Pendens.”

«TUCKER, P.

The plaintiffs in equity, by proceeding to take a decree against Fox for the value of the slave James, abandoned their proceeding in rem, and could not afterwards proceed for the specific property against the purchaser pendente lite, as the title of the slave was changed by a decree for his value. As to Henry, he was sold by Fox to Alsop ; and as Smith was in the transaction neither buyer nor seller, he is not liable to refund the proceeds, though the same may have been paid over to him in satisfaction of his claim against Fox.

The order is to be reversed, and the rule discharged, with costs.