#### *Commonwealth v. Ricks & als.

March, 1845,

Richmond.

(Absent Stahard,* J.)

1. Fraudulent and Voluntary Conveyances—Pursuit of Property.†—A court of equity will, at the suit of a creditor of an insolvent debtor, pursue property, the avails of his labour, in the hands of parties uniting with him to screen the same from his , creditors, or in the hands of volunteer purchasers from such parties.

2. Decree‡—Parties—Trustees—Cestuis Que Trust.§ In a suit claiming under an adverse title, property which has been conveyed to trustees for the payment of debts, to which only the grantor and the trustees are parties defendants, a decree in the cause in favour of the plaintiff, does not bind the *cestuis que trust.*

3. Tenants—Rents—Interest upon.—Tenants holding property which is the subject of controversy in a pending suit, are bound to pay interest upon the rents, though it is not ascertained, who is the party entitled to receive them.

*176This is an information filed by the attorney general of the Commonwealth of Virginia to set aside certain conveyances made by George Winston, a debtor of the commonwealth,, and . to subject certain other property, alleged to have been the proceeds of his labour, to the satisfaction of the claim of the commonwealth against him.

In 1813, Mary W. the daughter of George Winston, married Arnold W. Ricks of the county of Southampton. At this time, George Wins ton was the owner of a large amount of property but was considerably indebted. Among the real estate owned by him in the City of Richmond, were a house and lot on the south side of É street, with a lumber house on the opposite side of the alley. This house and lot, with the lumber house, formed one of the principal subjects of controversy in this suit. Mrs. Ricks claimed that it was given to her by her father on her marriage.

It appears that Arnold W. Ricks received the rents of the house for a part of the years 1814, 1815, and 1816. **In*May 1816, George Winston addressed a notice to the then tenants of the house, in which he says, “Arnold W. Ricks is the owner of the house you now live in. He married my daughter, and they wish to move to Richmond this year, and live in the upper part of the house if they can’t get a place more to their mind. I act for him.” Ricks did move to Richmond and died in August 1817, having made his will by which he gave his estate to his wife for life, and at her death to his infant child Deborah Ann Ricks. In September 1818, George Winston, as the agent of Mrs. Ricks, made a contract with Appleton & Jones for the rent of this house for one year from the 1st of October 1818. This contract is signed by him as agent for Mrs. Ricks.

In the meantime, as early as July 1814, George Winston and his son James executed a deed of trust on a portion of his real estate to secure certain sums of money to William Marshall. George Winston; in December 1817, executed two other deeds upon other portions of his property, one of them to secure to the Bank of - Virginia a debt -of 25,000 dollars, and the other to secure to the United States Bank at Richmond a debt of 35,000 dollars.

In June 1818, the Commonwealth recovered a judgment against Winston, as the security of Campbell, for 17,000 dollars—and in March 1819, he procured an act of assembly giving him time to pay this debt in three equal instalments, at the expiration of five, six, and seven years, upon condition of his giving security; and he accordingly gave his sons Pleasant and James Winston as his sureties.

On the 21st of August 1820, George Winston conveyed the whole of his property, real and personal, to Charles J. Macmurdo and hi's son James Winston, in trust for the payment of his debts. The house and lot before mentioned as claimed by Mrs. Ricks, is conveyed by this deed to the trustees, and Mrs. Ricks is ""not among the creditors specially named therein. This deed describes the property conveyed in parcels, numbering from 1 to 25. Of these, No.. 17 embraces his household and kitchen furniture, horses, wagons, cart, carriage, and cows; No. 18 embraces all the bricks, timber, plank, scantling, and tools, belonging to said Winston ; No. 19 embraces all debts due to him, including a contract by Haley & Sheppards to deliver to him 200,000 bricks; and No. 23 includes the right of said Winston to the labour and services of all the boys who have been -bound to him, or whose time he has bought, as far as he can lawfully assign the same. The trustees are directed to apply the proceeds of the trust property to seven distinct classes of subjects, in succession, the first six of which are specific. The seventh class embraces all Winston’s unenumerated creditors, and there is a proviso added to the deed, by which the trustees are authorized to sell to any of the unenumerated creditors, any portion of the property mentioned in the numbers from 11 inclusive to the end of the list, except 13, 14, and 17, in satisfaction of their claims; who are to hold it released from the operation of the trusts of this deed. The deed then provides that the trustees may appoint agents to manage the property, and that they are not to be responsible for the act of such agents, or for the acts of each other.

Previous to this deed, George Winston had conveyed to his sons Pleasant and James several parcels of his reaL estate, for nominal considerations, and one of the deeds bears date in October 1816, though none of them were recorded until the month in which the general deed was made.

In August 1820, Robert Douthat recovered a judgment in the name of Reuben Burton against George Winston for 9000 dollars, with interest, and in November 1820, the Bank of the United States recovered a judgment against him, the two amounting together to about 20,000, dollars, besides interest, damages and costs.

*In August 1820, Douthat sued out an execution on his judgment against the body of Winston, who was arrested, and on the 29th of August 1820, he took the oath for the relief of insolvent debtors, surrendering no property but that embraced in the deed of August 21st, 1820.

In January 1821, the Bank of the United States instituted a suit in equity in the United States court against George Winston and his trustees, Macmurdo and James •Winston, and others, chargingthat the deed of August 1820, was fraudulent and void, and asking the court .to set-it aside, and to give them satisfaction of their. judgment out of the property thereby conveyed. The trustees filed their answers in May of that year, and at the May term 1824, that court tnade a decree declaring that the deed was void as to the plaintiffs and the other judgment creditors of George Winston, and appointing the marshal of the court a receiver *177to manage the property and to collect the rents.

In June 1821, Mary W. Ricks, and her infant daughter Deborah Ann Ricks, exhibited their bill in the Richmond chancery court, against George Winston, Macmurdo, and James Winston, alleging her intermarriage with Arnold W. Ricks, and that her father George Winston had, in consideration of the marriage, made a parol gift of the house and lot on E street, before mentioned, to herself and her husband, and put them in possession of it; that they were in possession of it by their tenants, till the death of Ricks; and that afterwards the rents of the tenement were received for the plaintiff Mary W. by her father, till he made the deed of trust in August 1820, when he convej’ed the tenement to the trustees. The bill alleged that Arnold W. Ricks by his will gave his estate to his wife for life, with remainder in fee to his daughter Deborah ; and they prayed that the trustees might be compelled to convey the property to the plaintiffs. The notice to the tenant and the agreement with Appleton & Jones, above mentioned, were filed with the bill as exhibits, and were the only evidence in the cause.

*George Winston answered, admitting the parol gift. James Winston in his answer, stated that whilst Ricks lived in Southampton he, Winston, collected some of the rents and remitted them to him. Macmurdo answered that he knew nothing about it.

On these pleadings and exhibits the cause was forthwith brought to a hearing, by consent, and the court, saying that it did not intend to express any opinion on the deed of trust, decreed that the defendants should convey the house and lot to the plaintiff Mary W. for life, with remainder to the plaintiff Deborah Ann in fee: and a deed was accordingly executed by the defendants on the 19th of June 1821, conveying to the plaintiffs the house and lot as directed in the decree.

Sometime after the 1st of April 1821, Mrs. Ricks made out an account against her father as her collector, in which she charged him with the rents of the tenement on E street, on the quarter days on -which they fell due, from the year 1817 to the 21st of August 1820, with interest upon each item from its date on the 1st of April 1821, amounting to the sum of 4579 dollars 82 cents; also with the annual rent of a lot on Church Hill, from the 1st December 1817, to the 1st December 1820, with like interest from the date of each item to the 1st of April 1821, amounting to 1100 dollars—also with three years annual hire of two boys Randal and Simon for the years 1818, 19, and 20, and two j'ears and a half hire of a boy Primus, with interest from the dates when the hires are alleged to have fallen due, till the 1st of April 1821, amounting to .586 dollars 30 cents, and making a grand total of 6266 dollars 12 cents. This account ■was endorsed as correct by George Winston, signing himself agent for Charles J. Macmurdo and James Winston.

This account embraced the whole property of Mrs. Ricks except a farm in Southampton, which, she states in her answer, rented for a part of the time for 140 dollars; *and afterwards for 100 dollars per annum. The personal estate of her husband was applied to the payment of his debts.

Previous to the 8th December 1823, George Winston, who was an experienced builder of houses, and who had on hand when he made his deed of August 1820, a supply of bricks, and an obligation for the supply of 200,000 more, and who had several slaves, mechanics bound to him for a term of years, had built six tenements on Cary street for David Bullock, for the price of 12,255 dollars, of which Bullock had paid 2178 dollars 70 cents, leaving a balance of 10,076 dollars 30 cents due on the 1st of October 1823. On the 8th of December 1823, Mrs. Ricks, by her agent George Winston, and David Bullock entered into an agreement under seal, and put upon record, in which it is recited that this work had been done by Winston as the agent of Mrs. Ricks, and that the balance due, with interest, was to be paid to Mrs. Ricks by a lease of the six tenements at the rent of 1225 dollars 50 cents per year for ten years, and by such additional annual payments as would extinguish the debt in ten years; with a proviso for an earlier discharge of the debt, if Bullock chose; and the further proviso that payments to George Winston were to be as good and the same as paid to Mrs. Ricks.

In 1825, George Winston as the agent of Mrs. Ricks, entered into a contract with David Bullock and James Shiphard, for rebuilding a house for them in Richmond, for which they were to pay him out of the rents after it was finished; the price to be ascertained after the work was done; and by a memorandum of agreement between the same parties, dated April 7th, 1826, it was agreed that the price of building the house was 5879 dollars 95 cents; and it was recited that Bullock had paid his half of that sum, and he was exonerated from any farther claim for the building; and it was agreed that after Bullock had been satisfied for some advances *he had made for the building out of Ship-hard’s moiety of the rents, they should be applied to the satisfaction of Mrs. Ricks’s claim for Shiphard’s moiety of the price of the building.

On the 25th of July 1820, George Winston and his son Pleasant Winston conveyed another tenement on E street to Nathaniel Crenshaw and Benjamin Sheppard, to secure the payment of 3600 dollars to Edmund B. Crenshaw. In 1825, this lot was sold under the deed of trust, and was struck out to Mrs. Ricks at 4065 dollars. On the 30th of April, the trustees conveyed the tenement to her in fee simple; and she on the same day reconveyed it to the same trustees to secure the balance of the purchase money; and by an agreement of the same date, *178bétween herself and Edmund B. Crenshaw, she assigned to him the rents of three of the tenements to which she was entitled under the contract with Bullock, until the balance of the purchase money should be paid; with a stipulation that if the securities given for the payment of the balance of the purchase money should not be sufficient to satisfy it, she was in no way to be personally responsible for it. It appears that the balance of the purchase money was paid out of the rents of the house sold, and the three tenements, without a sale under the trust deed.

In 1821, James Winston as trustee in a deed for Nathaniel Winston, conveyed to Mrs. Ricks a lot on Church Hill. In her answer in this cause, she says, that the lot was purchased for her by her father, and paid for by him at the price of 300 dollars; and that subsequent to the purchase, her father, as a very small reimbursement towards the debt he owed her, built a small dwelling house upon it.

On the 16th of October 1826, Mrs. Ricks executed three deeds, by one of which, in consideration of natural love and affection, she conveyed to her four sisters, Elizabeth Clark, Buey Ann Kyle, Amelia H. Winston, *and Virginia J. Winston, her interest in four of the tenements she held under the contract with Bullock; by another of which she, for the same consideration, conveyed one other of these tenements to her brother Thomas B. Winston; and by the other she, for the same consideration, conveyed to her aforesaid sisters one moiety of the tenement purchased from Crenshaw, reciting in said deed that the other moiety had been conveyed in trust for the separate use of Elizabeth C. Winston, the wife of Pleasant Winston. On the 19th of October, Mrs. Ricks executed another deed, by which she, for the same consideration, conveyed to her four sisters the house and lot on Church Hill.

Upon the bonds executed by George Winston in satisfaction of the judgment against him as security of Campbell, the commonwealth proceeded to obtain judgments in the general court against him and his sureties James and Pleasant Winston, as the instalments fell due in 1824, ’25 and ’26; the last judgment being at the June term 1827, against the sureties only, George Winston being then dead. But partial satisfaction was obtained on these judgments, George Winston’s property being covered with incumbrances, and his sureties proving insolvent. Whereupon in May 1828, the commonwealth, by the attorney general, instituted this suit against George Winston’s representative, his sureties- James and Pleasant Winston, Mrs. Ricks and her daughter, and those claiming under Mrs. Ricks, and others; and in th$ original information filed he charged that’the contracts with Bullock, and Bullock and Shiphard, were entered into in the name of Mrs. Ricks with the fraudulent intent on the part of herself and her father of protecting his property and the profits of his business from his creditors. He charged that the conveyances by Mrs. Ricks to her sisters and brother were without consideration, and asked that they might be set aside, unless she would establish by proof that the property *was acquired by her in good faith ; that she might be required to account for all the moneys received by her under the contracts with Bullock, and Bullock and Shiphard; that these contracts might be held to enure to the benefit of the commonwealth; that all necessary accounts might be ordered; that in the mean time a receiver might be appointed to collect the rents on all the propert3r, and all sums of money to become due for the same; that Bullock and Shiphard be restrained from paying over any moneys due or to become due on said contracts to Mrs. Ricks; that she disclose what consideration she paid for the property conveyed by her to her sisters and brother, and what amount she advanced out of her own funds under the contracts aforesaid; and for general relief.

Mrs. Ricks answered, stating the gift of the house on E street to her husband and herself by her father on her marriage, stating the indebtedness of her father to her on account of the rents of the houses she claimed, and the hire as hereinbefore stated; the purchase by her, as one of the unenumerated creditors of her father in part discharge of the debt he owed her, of the services of three negro men who were bound to service until the age of twenty-five years, of a parcel of bricks then on hand and a debt from Benjamin Haley and Benjamin and John Sheppard for two hundred thousand bricks. That having purchased this property, and being possessed of two servants bound to serve until they should attain the age of twenty-one, she on the 22d of May 1822, entered into a written agreement with her father, bv which she placed in his hands the property above mentioned ; which with 1000 dollars a part of the debt he owed her, was to constitute a fund to be employed by him in his business of house builder, &c. for her use and benefit. That his remuneration was to be such sum as they should agree upon; or if they disagreed as to the amount to be allowed, it was to be fixed by arbitrators *mutually chosen by them. That it was under this agreement that the contracts with Bullock, and Bullock and Shiphard were made and executed. That she purchased the house of Sheppard and Crenshaw for the joint benefit of herself and sister-in-law Elizabeth C. Winston, whose moiety thereof had been conveyed to trustees for her separate use. That said Elizabeth paid 1254 dollars, of the purchase money, she had paid about 820 dollars, and the balance had been paid out of the rents of that house and of three of those of which she had possession under her contract with Bullock.. That the house and lot on Church Hill were acquired by her as hereinbefore stated, and that her conveyance to her sisters and brother were without consideration other than natural love and affection. That *179she has received no part of the rents of the six tenements, except what was applied to satisfy Crenshaw. That she kept no accounts of these moneys, and is unable to give a correct statement of accounts between her and her father.

The claimants of the property under Mrs. Ricks answered, admitting the’conveyances to them were voluntary. The other parties also answered.

In 1830, the attorne3r general filed an amended information, in which he enumerated all the conveyances hereinbefore mentioned ; stated that when the most, if not all these conveyances were made, George Winston was greatly in debt; stated Douthat’s judgment and the proceedings on it. That in November 1820, the United States Bank had recovered a judgment against Winston for 19,999 dollars, exclusive of interest and damages; charged that the house and lot on E street claimed by Mrs. Ricks, were conve3Ted b3r the deed to Macmurdo and James Winston; stated the decree rendered in the suit of Mrs. Ricks and her daughter against George Winston and his trustees, James Winston and Macmurdo; charged that the whole proceeding was fraudulent as to the creditors of George Winston, and asked that they *might be set aside; and the amended bill concluded by praying that such of the deeds recited as might appear to have been made to defraud and defeat creditors might be set aside, that such as were made bona fide to secure creditors might be enforced, that all proper accounts might be taken, and for general relief.

Mrs. Ricks again answered, stating the manner in which the house and lot on E street was given to her by her father, and denying all fraud.

In the progress of the cause, the court appointed Philip B. Jones a receiver of the court, with authority to take possession of all the real estate mentioned in the bill, and to rent it out, and collect the rents. In 1843, the receiver reported that all the property was in the possession of the marshal of the United States court, as receiver in the case of the United States Bank v. Winston & others, with the exception of one warehouse which was in the possession of Rives & Harris as tenants; and that he had received from them 1844 dollars 22 cents, being one half of the rents of the warehouse for part of the year 1834, and for the years 1835, ’36, ’37, ’38, ’39, ’40, ’41 and ’42, inclusive, but that they refused to pay interest thereon, because, as they alleged, they had always been ready to pay the rents to any person legally authorized to receive them.

Mrs. Ricks intermarried with Thomas H. Terrell; and the cause came on in March 1843 to be finally heard, when the court expressed the opinion that there was no proof of fraud between Mrs. Terrell and George Winston; that there was no sufficient ground to impeach the title of Mrs. Terrell to the house and lot on E street; or to the property erected by her for Bullock and, , Shiphard, or her title to any other property mentioned in the information. The court, therefore, confirmed her in her title to said property; and directed the possession of the propert3r to be delivered to Thomas H. Terrell and his wife by the proper officer of the court. The court farther decreed that Rives & Harris should *pay interest upon the rents in arrear, and directed the receiver Jones to pay over the money in his hands to Terrell and wife. Erom this decree, the attorney general obtained an appeal to this court.

Baxter, attorney general, Johnson and Bouldin, for the appellant.

Lyons, for the appellee.

*

He had been counsel in the cause.

†

FrauduIent Conveyances—Rights of Creditor.—It was said in Parr v. Saunders, 1 Va. Dec. 734, that the decision in the unreported case of Elder v. Harris, holding that, in cases of actual fraud, the creditor is entitled to a decree for rents and profits, although he may have no judgment, is fully sustained by the case of *Com. v. Sides, 1 Gratt. 416.*But see Blow v. Maynard, 2 Leigh 29, holding that where the debtor makes a conveyance of real estate to the use of his children, upon a bill by a creditor after debtor’s death against grantee’s children, and the conveyance is declared voluntary and fraudulent, the grantees are not accountable for rents and profits prior to the decree. This decision was placed mainly upon the ground that the heir is entitled to the possession of the lands descended until there is a judgment or decree, and, until the creditor obtains such judgment or decree, he is not entitled to claim rents or profits. It was conceded in that case by the judges that if there had been a judgment against the ancestor in his lifetime, the fraudulent donee, whether a stranger or the heir, would be liable for the rents and profits enjoyed by him, and lost to the creditor by reason of the fraud.

‡

ChancerySuit—Parties.—For the general rule that he whose rights are to be affected by any proceeding should be before the court, and have an opportunity to be heard, in order that the decree may be binding upon him, see *foot-note*to Richardson v. Davis, 21 Gratt. 706. The principal case is cited for the above statement in Simon v. Ellison, 90 Va. 157, 17 S. E. Rep. 836.

§

Same—Same—Cestuis Que Trust.—In Richardson v. Davis, 21 Gratt. 710, the court said: “In Collins v. Lofftus, 10 Leigh 5, and of the *Com. v. Ricks, 1. Gratt. 416,*decided by this court, it was held that *cestuis que trust,*not being parties, are not bound by the decree.”

BALDWIN, J.,

delivered the opinion of the court.

As regards the tenement on the south side of E or main street in the City of Richmond, together with the lumber house on the opposite side of the adjoining alley, in the proceedings mentioned, the court, without deciding under what circumstances, if any, a parol gift of real estate from a father to a child, accompanied by delivery of possession, ought to be enforced or recognized by a court of equit3T, against the creditors of the donor, or subsequent purchasers from him, or against the donor himself, is of opinion that, in the present case, no equitable right to such relief or protection, in respect to said property, has been shewn by the appellee Mary W. Terrell, formerly Mary W. Ricks, and her daughter, the appellee Deborah Ann Ricks, or either of them, under the gift in the proceedings mentioned, asserted by the said Mary W. as having been made by her father George Winston to her and her former husband Arnold W. Ricks. And the court is further of opinion, that the rights of the creditors of the said George Winston, in regard to said property, cannot be affected b3r the decree of the late superior court of chancery for the Richmond district, in the proceedings mentioned, rendered on the 13th of June 1821, in a cause then depending therein, between the said Mary W. Ricks and Deborah Ann Ricks plaintiffs, and the said George Winston and James Winston and Charles James Macmurdo defendants, by which decree the said defendants were directed *to convey to the said Mary W. for her life, with remainder in fee simple to the said Deborah Ann, the property aforesaid; the said creditors not having been parties in that suit. And in regard to the arrangements, contracts and other transactions between the said Mar3T W. Ricks and George Winston in the proceedings mentioned, by which it was, amongst other things, pretended, that the said Mary W. became the creditor of her said father to a large amount; that she acquired certain of the personal property and funds which had been embraced in the general deed of trust of the 21st of August 1820, executed by the said George Winston for the benefit ’ of his creditors ; that said , Winston became engaged and employed in *180her service and as her agent, with her resources and upon her credit, in the business of house building, and that she was entitled to the proceeds thereof, and the property and funds thereby acquired: the court is of opinion, that the sa.id arrangements, contracts and other transactions between the said Mary W. Ricks and George Winston, were fraudulent devices and contrivances for the purpose of defeating the creditors of said Winston, and securing to him and his family .the products of his skill, labour, resources and contracts, against their demands; that the said George Winston was in no wise indebted to the said Mary W. Ricks; that she acquired no right to any of the property or funds embraced in the trust deed aforesaid, as against the creditors of said George Winston, nor as against them to the benefit of the contracts in the proceedings mentioned, made in her name with David Bullock, and with Bullock and Shiphard, nor to the purchase in her name in the proceedings mentioned, of the property sold by the trustees Nathaniel C. Crenshaw and Benjamin Sheppard, under the deed of trust of the 5th of July 1820, executed to them by said George Winston and Pleasant Winstpn, to secure a debt to Edmund B. Crenshaw, and by said trustees conveyed to said Mary *W. Ricks by their deed of the 30th of April 1825; the said contracts and purchase last mentioned having in truth been made by means of the labour, skill and resources of the said George Winston, and for the benefit of him and his family, except so far as an interest in said purchase may have been acquired by Elizabeth C. Winston, wife of Pleasant Winston, in regard to which the court expresses no opinion. And as regards the lot in the answer of said Mary W. Ricks mentioned, as having been purchased for her by said George Winston, from James Winston, trustee of Nathaniel Winston, and conveyed to her by said James Winston 'on the 27th of May 1821, and improved for her by said George Winston ; the court is of opinion, that the same must be treated, in ■ respect to the creditors of said George Winston as his property, the transaction being a fraudulent contrivance, upon a feigned consideration, as between the said George and the said Mary W., for the purpose of defeating said creditors, and securing the benefit of said property to him and his family. And the court is further of opinion, that the conveyance in the proceedings mentioned, from the said Mary W. Ricks to her brother Thomas B. Winston, and the conveyances in the proceedings mentioned, from her to her four sisters, Elizabeth Clark, Eucy Ann Kyle, Amelia H. Winston, and Virginia J. Winston, were as between the grantors and grantees merely voluntary, and as between the said Mary W. Ricks and George Winston, parts of their fraudulent arrangements and transactions aforesaid, contrived for the purpose of defeating the creditors of the said George Winston: and that the property, interest and funds thereby conveyed, are subject to the demands of said creditors. Wherefore the court is of opinion, that the said decree rendered in this cause, by the said superior court of chancery for the Richmond circuit, is erroneous, except so far as it relates to the question, whether interest was chargeable to Rives & ^Harris upon the rents of the lumber house therein mentioned, until collected from them by the receiver of the court. And the court is further of opinion, that though the general deed of trust above mentioned, executed by the said George Winston on the 21st of August 1820, is not impeached as fraudulent by the informations of the attorney general filed in this cause, yet that the fairness and validity of that deed are involved in the question of priorities amongst the creditors of the said George Winston, seeking satisfaction out of the property thereby conveyed, and his other property, under the several incumbrances and liens of said creditors, in the proceedings mentioned; as are also the fairness and validity of the conveyance in the amended information mentioned, made by the said George Winston to his son James Winston, and of the several conveyances in said amended information mentioned, made by the said George Winston to his son Pleasant Winston. And the court is further of opinion, that the attorney general ought to be required to amend his informations, so as to state distinctly the liens, incumbrances and priorities claimed by the commonwealth, and the grounds upon which she impeaches any of the liens, incumbrances, conveyances and priorities claimed by others, and so as to state distinctly the property, funds and effects which she seeks to subject to the satisfaction of her demands against the said George Winston’s representatives and his sureties the said James Winston and Pleasant Winston: and making all proper additional parties not now before the court. And that accounts ought' to be directed before a commissioner, of the property, funds and effects of the said George Winston in the hands of the said Mary W. Terrell, formerly Mary W. Ricks, and others claiming under her; and of the property, funds and effects of the said George Winston, embraced in the aforesaid general deed of trust executed by him on the 21st of August 1820; and of any other property, *funds and effects of his, in whose hands soever they may be, liable to the demands of his creditors; and of the rents, profits and proceeds of all such property, funds or effects; and of the several priorities claimed by and amongst his said creditors: and also such other accounts as in the further progress of the cause may be found necessary to the rendition of a final decree. Wherefore it is decreed and ordered, that so much of the said decree rendered in this cause, as is above declared to be erroneous, be reversed and annulled, with costs to appellant against Terrell and wife, De*181borah A. Ricks, Thomas B. Winston, Elizabeth H. Clark, Amelia H. Winston, Virginia J. Winston, Hazlet Kyle and Mary Ann Kyle his wife, and George Winston’s administrators, and the cause remanded for further proceedings according to the principles herein declared.