1877. said John P. Vinson had complied with the conditions, July Term. in whole or in part, under which the said lands were devised to him, and so whether he had a good title to said lands or not, and to what extent, if at all, the said lands were now encumbered by the charges under the will aforesaid. ́

Horton

& als.

V.

Bond.

Without ascertaining these facts, it is hardly possible that the lands of the said John P. Vinson could be sold except at a great sacrifice, if, indeed, they could be sold at any price.

It moreover appears by the answer of the appellant, Hartwell Alderman, to the complainant's bill, that while he claims to be the owner of the whole one hundred and three acres of land which he had conveyed in the trust deed to Wm. H. Sutherland, trustee, to secure the payment of the debts therein described, the legal title to at least one half of said land is outstanding in one Henry M. Key, who is not a party to the suit; and as to the other half, while he holds the legal title thereto jointly with himself and his daughter, Thurza Alderman, it is rather intimated than positively asserted in his answer that she is the sole beneficial owner thereof. A sale of this land, under this condition of the title, could not reasonably be expected to be made without sacrifice; and before it is sold by decree, the complainant should be required to amend his bill and make said Key a party defendant, with such statements in the bill and references to the title disclosed in the answer aforesaid of the said Hartwell Alderman as will enable the court on further hearing to remove any impediment to a fair sale of the land on account of the doubt and uncertainty as to the title. It would be improper and illegal for a trustee in pais to make sale of lands with clouds resting on the title; and if he attempted it, a court of equity, on

a bill filed by the debtor or any other party having an interest, would restrain him. A fortiori, a court, having full possession of the subject in a pending suit, should not decree sale until every impediment to a fair sale is by its aid removed as far as practicable. Rossett v. Fisher, 11 Gratt. 492, 499, and cases there cited; to which may be added Lane v. Tidball, Va. Rep. (Gilmer) 130.

The court is further of opinion that if a sale was proper at all, the said decree of the county court is also erroneous in ordering a sale of all the lands of the sureties uno flatu, and in vesting the commissioner with discretionary power as to the order in which said lands should be sold. While it is true that the sureties as well as their principal are all bound by the complainant's judgment, and he has the undoubted right to resort for satisfaction to the property of each and all of them, yet, in equity, in a suit in which all the parties are alive and before the court, the court will respect the equities of the parties inter sese, and administer them upon the principles peculiar to the forum, as far as that can be done without too great delay and without prejudice to the rights of the creditor. The principal debtor's lands should be first subjected to the exoneration of the lands of the sureties. That has been done in this case by prior decree. The sureties, however, are not only sureties of the principal debtor for the whole debt; but, as amongst themselves, they are each surety for the other to the extent of the excess of the whole debt beyond his proportionate part thereof; and each, therefore, has an equity to have the lands of the other subjected, to the exoneration of his own, for such other's share of the debt. The court, therefore, in directing a sale, when ascertained to be proper, should have apportioned the balVOL. XXVIII-104

1877.

July Term.

Horton

& als.

V.

Bond.

1877. ance of the complainant's judgment, after crediting July Term. the nett amount of the sales of the principal's land,

Horton & als.

V.

Bond.

equally amongst the sureties, and have ordered a sale of the lands of each, or so much thereof as might be necessary to pay his proportionate part of the judg ment; and if either should make default in the payment of his part, aud his lands when sold should prove insufficient to pay such part, the lands of the others should be subjected proportionately for such part unpaid; and so on proportionately, upon further default of any party, until the lands of all have been sold, if the sale of all be necessary for the complete satisfaction of said judgment. See Mayo v. Tomkies, 6 Munf. 520; Dickey v. Gentry's ex'or & als., not reported.

Upon examination it will be found that the decision in Lacy v. Stamper & als., 27 Gratt. 42, cited by appellee's counsel, is not at all in conflict with what has been herein before stated. In that case the bill was filed by a legatee against the personal representative of the executor of a decedent and the sureties of said executor, and against succeeding administrators de bonis non of said decedent and their sureties, for accounts and settlement of their several administrations; and the court held, under the circumstances of the case, that the legatee should not be required to proceed further than she had gone before resorting personally to the sureties. The president, in delivering the opinion of the court in that case, said, "We do not mean to decide that in no case will a creditor or legatee be compelled to exhaust his remedy against the personal representative and heirs of the executor before resorting to the sureties, or to lay down any general rule on the subject; but merely to say that there are cases in which he will not be so required (as authorities before cited plainly show),

and this is one of them." The object of the bill in the present case is to enforce the lien of a judgment against the lands of all the parties, and all the parties being convened for that purpose by the bill, it is but equitable that each party should be required to bear his part of the common burden. The creditor has been already and may be further subjected to some delay in the pursuit of his remedy; but this delay is incident to his remedy, and cannot be avoided.

The court is further of opinion, for the reasons. stated, that the said decree of the circuit court of Carroll county dismissing the petition of the appellants for rehearing of the decree aforesaid of the county court of Carroll, is erroneous and should be reversed and annulled; and that the said decree of the said county court, in so so far as the same is hereinbefore declared to be erroneous, should also be reversed and annulled, and the residue thereof be affirmed; and that this cause be remanded to the said circuit court to be further proceeded in to final decree in conformity with this opinion and the principles herein declared.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said circuit court of Carroll county erred in its said decree in dismissing the petition of the appellants filed for a rehearing and reversal of the decree of the county court of said county, rendered in this cause on the 21st day of January 1873, and in not reversing said decree of

1877. July Term.

Horton &als.

V.

Bond.

the said county court for the following errors apparent on the record:

1. The said decree of the county court was premature, and is erroneous in ordering a sale of the lands of the defendants therein mentioned, without the fact being made to appear to the said court that the rents and profits of said lands would not discharge the complainant's judgment in five years. Before any sale could have been properly ordered, that fact should have been made to appear in some way, and as it did not in any way appear, an inquiry should have been ordered and made to ascertain the annual rental value of said lands.

2. The said decree of the county court was also premature, and is therefore further erroneous in ordering a sale of said lands, if a sale had been shown to be proper, before it had been ascertained and determined by the decree of the court, on an account ordered and taken, what were the unsatisfied liens and incumbrances on said lands respectively, the several amounts thereof, by whom held, and the order in which they are chargeable on said lands. The liens and incumbrances on the lands of the several defendants, except John P. Vinson (one of the appellants here), seem to be sufficiently, although not very accurately, ascertained by the said decree of the county court. As to the lands of the said John P. Vinson, an enquiry should have been ordered to ascertain the respective ages of the widow of Daniel A. Vinson, deceased, and the eight grandchildren named in his will; a copy of which is filed as an exhibit in the cause, and further to ascertain the amounts charged upon said lands of said John P. Vinson by the will of said decedent in favor of the said grandchildren, whether said amounts have all, or any of them, become payable,