upon the petitioners applied to a judge of this court 1877.

July Term.

for an appeal; which was allowed.

Shelton and Tompkins, for the appellants.

Tipton and Brown, for the appellee.

BURKS, J., delivered the opinion of the court.

The appellee, Stephen Bond, filed his bill in the county court of Carroll, against William R. Horton (principal debtor), and the appellants (except George D. Smith, assignee) and others, his sureties, and their alienees, and others interested in the subject matter of the suit, to enforce a lien of a judgment recovered by said Bond against said principal and his sureties, and to that end, amongst other things, to set aside, as fraudulent, certain deeds of trust and other conveyances made by some of the sureties. At the first hearing of the cause, the said county court, by its decree, ordered a sale of the lands of the principal debtor, which sale was reported and confirmed; and on a further hearing, the court made another decree setting aside as fraudulent several of the deeds of the sureties assailed in the bill; and recognizing others as valid, held the equity of redemption thereof liable to the lien of said judgment and ordered a sale, out and out, of the lands of the sureties to satisfy the judgment and other liens of prior date deemed valid. Before the decree for sale was executed, the cause was removed, by operation of law, into the circuit court of Carroll, in which court the appellants filed their petition, praying a rehearing and a reversal of the last mentioned decree, assigning as errors apparent on the record the following:

Horton &als.

V.

Bond.

1877. July Term.

Horton

& als.

v.

Bond

"The court should not have decreed sale when it appeared affirmatively in the cause that rents and profits would in five years discharge the judgment.

"It was error to decree sale until amounts and priorities of all liens on said real estate had been ascertained and reported.

"It was error to let the commissioner determine whose lands should be first sold and the amount to be made out of each of the defendants. Courts of chancery always decree against the party primarily liable, and the decree should have fixed the amount to be paid by each one of the defendants whose lands were liable, and permitted each one of said parties to protect his land from sale by paying the amount for which he was liable."

Upon a rehearing had on this petition, the circuit court by its decree held that there was no error in the decree of the county court complained of, and dismissed the petition. The appellants were allowed an appeal from this decree of the circuit court by one of the judges of this court.

The court is of opinion, that the said decree of the county court was premature and erroneous, in ordering a sale of the lands therein mentioned, when it had not been made to appear to said court that the rents and profits of said lands would not discharge the complainant's judgment in five years.

Before a court of equity can properly order a sale of the debtor's land to satisfy a judgment lien, it must be made to appear to the court that the rents and profits of the land in five years will not discharge said judgment.-Code of 1873, ch. 182, § 9. And this must be made to appear even against fraudulent alienees.Cronie v. Hart and others, 18 Gratt. 739.

The insufficiency of the rents and profits to satisfy the judgment within the statutory period may be shown by the pleadings, by the admissions of the parties, by evidence taken, or by the report of a commissioner on inquiry ordered. This fact preliminary to the exercise by the court of its jurisdiction to order a sale was in no way made to appear to the court in this case. On the contrary, while the bill alleges that the rents and profits in five years would not discharge the judgment, this allegation is expressly denied by the separate answers of two of the defendants, and was not admitted in the answers of any. No evidence was taken to show it, and no inquiry ordered.

years.

In the case of Ewart v. Saunders, 25 Gratt. 203, in the opinion of the court delivered by Judge Bouldin, it is said that the "statute prescribes no particular mode by which it shall be made to appear that the rents and profits will not pay the judgment in five When there is doubt about the fact, or an inquiry is demanded by either of the parties, the court will generally direct one of its commissioners to ascertain and report the annual rents and profits of the land. But this is not a necessity in every case. If none of the parties ask such an inquiry, there may, in a proper case, be a decree for the sale of the property without it. Citing McClung v. Beirne, 10 Leigh 394; Manns v. Flinn's adm'r, Id. 93.

In that case, while the bill alleged that the rents and profits of the land would not pay the judgment in five years, this allegation was not responded to in the defendant's answer. The only defense set up in the answer was, that the debt was paid; and whether it was paid or not was the whole controversy in the court below. In this case the fact was put directly in issue by the bill and the answers of two of the defendants,

1877.

July

Term.

Horton &als.

V.

Bond.

and it was essential that it should be established in some way before a sale could properly be ordered. Moreover, if it was necessary that an inquiry should have been asked for in the court below, the appellants did ask for it in their petition for a rehearing. If this was the only error in this cause, the decree being interlocutory might, as held in Ewart v. Saunders, supra, be amended so as to secure an inquiry before sale, and as amended be affirmed. But this cannot be done, because the decree must be reversed for other errors hereinafter specified.

The court is further of opinion, that if it had been ascertained that a sale was necessary, the said decree of the county court was still premature and erroneous in ordering said sale before ascertaining, settling and determining what debts were chargeable on the lands, the amounts thereof, to whom payable, and the order in which they were so payable.

This principle was established at an early day in the leading case of Cole's adm'r v. McRae, 6 Rand. 644, where it was held that such a decree as that rendered by the said county court was premature and erroneous, because a sale, without previously ascertaining and determining the liens and incumbrances and the order in which they are chargeable, has a tendency to sacrifice the property sold by discouraging the creditors from bidding, as they probably would, if their right to satisfaction of their debts, &c., had been previously ascertained. This case has been followed by numerous decisions of this court to the same effect. Smith & als. v. Flint & als., 6 Gratt. 40; Buchanan v. Clark & als., 10 Gratt. 164; Iaege v. Boisseaux, 15 Gratt. 83; Lipscombe v. Rogers & als., 20 Gratt. 658; White v. Mech. Building Fund Association, 22 Gratt. 233; Moran v. Brent &als., 25 Gratt. 104.

1877.

The county court by its decree did, perhaps, suffi- July

ciently ascertain the debts chargeable on the lands ordered to be sold, except the lands of the appellant, John P. Vinson. He derived his lands by devise from his father, Daniel A. Vinson. The lands so devised consisted of two parcels, the one containing one hundred acres, and the other eighty acres. These lands were devised to the said John P. Vinson, upon the express condition that he should support and take care of his mother during her natural life, and provide for her, at his own expense, all necessary food, clothing and medical attendance; and upon the further condition that he should pay to eight grandchildren, of the testator named, twenty dollars each as soon as they should attain the age of twenty-one years respectively; and it was further provided by the will, that if the said John P. Vinson should wholly fail to make payment of the sums aforesaid, the said grandchildren should have a certain portion, described by metes and bounds, of the lands so devised to the said John P. Vinson; and if the said John P. Vinson should pay to a part only of the said grandchildren the amounts bequeathed them, and should fail to pay to the others the sums bequeathed to them respectively, such others only were to have a proportionate share of the lands so conditionally devised to them, to wit: each oneeighth part.

Before sale of these lands, thus devised to the said. John P. Vinson, it is obvious an inquiry should have been ordered and made to ascertain the ages of the widow of Daniel A. Vinson, and of the eight grandchildren, whether the charges on said land, under the will of Daniel A. Vinson, had been fully satisfied, and if not, to what extent, if at all, they had been so satisfied, so that it might be made to appear whether the

Term.

Horton

& als.

V.

Bond.