1877. hundred and five acres, lying in McDowell county, July West Virginia, on Tug and Elk Horn, adjoining the lands of Otis Perdue and others; also two tracts of Term. Barger V. Buckland & als. land on Brush Fork, a branch of Bluestone, both containing by survey three hundred and eighty acres, and the same on which said Barger now lives; part of the said two tracts lying in Tazewell county, Virginia, and the balance in Mercer county, West Virginia; all this to secure a debt of $857.38. He charges that this deed was executed by Barger with intent to delay, hinder and defraud the complainant and other creditors of said Barger, and that Brown and the Straleys knew the fraudulent intent of said Barger. That the property embraced in it was worth at least $8,000, and it conveys everything owned by said Barger, and even embraces his property exempt by law from execution. Complainant further states that about two hundred acres of said land lies in Tazewell county, on which his judgment is a lien. He prays that he may have a decree for his debt; that the property embraced in said deed of trust, or so much as is necessary, that is situated in Tazewell county, be subjected to its payment, and for general relief. Jacob W. Buckland, who sues for the benefit of Russell B. Tabor, sets up a judgment recovered against Barger in the county court of Tazewell, on the 29th of May 1872, which had been docketed. He sets out the deed to Brown, and the property described therein as it is set out in the bill of Marrs, and the amount of the debt purporting to be secured thereby at $857.38. He charges that it was made by said Barger wholly without consideration, and with intent to hinder, delay and defraud the complainant and the other creditors of Barger, and that Brown and the Straleys were cognizant of the intent. 1877. July Term. Barger He charges that his judgment is a lien upon that portion of Barger's lands (about two hundred acres) which lie in the county of Tazewell; and he prays that the property embraced in said deed of trust, or so much thereof as may be necessary, and that situated in this Buckland county, may be subjected to sale for the payment of his said judgment; and for general relief. The process in the first two of the cases were served on Barger and Brown, and the Straleys were returned as absent defendants. In the third case the return of service as to Barger is-"Executed on Jacob Barger by leaving a copy of this summons at his residence with George W. Barger, a white person over the age of sixteen, and explaining its contents to him; Jacob Barger not being found at home." The return as to the other defendants was as in the other cases. On the 28th of November 1872 the county court made a decree to consolidate the three causes and hear them together. And the non-resident defendants having been regularly proceeded against in the manner prescribed by law, the bill was taken for confessed as to all the defendants; and the cause then coming on to be heard, the court held that the plaintiff, Mullins, should be substituted to the lien of John Barger, mentioned in Mullin's bill, and paid by him; and that this lien was prior and superior to the trust deed to secure the Straleys; but the said trust deed, if bona fide and valid, was superior to the liens of Marrs and Buckland. And it was referred to a commissioner of the court to ascertain and report to the court whether or not the debts secured by the said deed of trust were bona fide and valid, and the consideration and amount thereof; and also to report the annual rent or value of the lands of Jacob Barger sought to be subjected. V. & als. V. & als. 1877. At the February term 1873 of the court, Jacob W. July Term. Buckland, by leave of the court, filed his petition in the cause. In it he states, that on the 30th of OctoBarger ber 1872, R. A. Hale recovered a judgment in the Suckland county court of Tazewell against Jacob Barger and the petitioner for the sum of $185, with twelve per cent. interest thereon from the 29th of October 1870, and costs. That petitioner was the surety of Barger, and an execution having issued upon the judgment to prevent a sale of his property he had been compelled to pay it. He claims to be substituted to all the rights of Hale, and that he is entitled to recover the amount from Barger. He sets out the real estate conveyed by Barger to Brown as it is described in the bill he had filed, and charges fraud in the deed as in that bill. And he asks to be admitted as a party plaintiff in the said suits. The process to answer the petition was served on Barger and Brown; and the Straleys filed their answer to the bills, which was agreed to be taken as embracing the petition. They say in their answer, it is not true that the trust deed executed by Barger to secure them was made on no valuable consideration, or for the purpose of hindering, delaying or defrauding the creditors of Barger. It was executed to secure the payment of a note executed the 8th of December 1871 for $857.38, with interest from date at twelve per cent. for money loaned to them by Barger. They state several payments on this note by Barger, leaving due on the 18th of April 1863 $467.08. They state further, that on the 5th day of April 1861 Barger executed to respondents his note for $625, due twelve months after date with interest from date, and executed to Hercules Scott as trustee, a deed conveying to him acres of land lying in Mercer and 1877. July Term. Barger V. & als. Tazewell counties, to secure the payment of said last mentioned note. And they file the deed with their answer. They say this note was executed for money loaned, and cash paper loaned by them to Barger. And they state credits upon this note, leaving a bal- Buckland ance due April 3d, 1873, of $419.63. They deny all fraud, and admit the priority of the claim of Mullins to the deed of December 14th, 1871, but not to the deed of April 5th, 1861. The description of the land conveyed in this last mentioned deed is given in the opinion of the court delivered by Moncure, P. In May 1873 the commissioner returned his report. He reports that the debts of the Straleys secured by the deeds of trust are bona fide and valid, and were given for the loan of money to the amount of the face of the notes. The amount due on the debt secured by the deed of December 8th, 1871, on the 16th of May 1873, was $160.52; that secured by the deed of April 5th, 1861, was at the same date $417.26. Barger's land he reports at $100 a year. The rent of The cause came on to be heard on the 29th of May 1873; when the court confirmed the report of the commissioner, and, fixing the order of priorities among the different creditors, made a decree in their favor for the several amounts due them, including their costs at law, and also each one his costs in this case. And the court considering the lands of the said Barger in the proceedings in these causes mentioned are liable to the payment of the sums above decreed, but it being admitted that the title to said land is vested in Hercules Scott, trustee in the first deed of trust, and that the said Scott is a non-resident of this state and cannot be compelled to act under said trust deed, it is further "decreed that unless the defendant Barger shall pay the amount above decreed on or beVOL. XXVIII-108 July Term. Barger V. 1877 fore the 30th of June next," commissioners named “shall proceed to sell the land in the bill and proceedings mentioned, or so much thereof as may suffice, to the highest bidder," &c., &c., for so much cash as will Buckland defray costs of suit and expenses of sale, and for the residue of purchase money, on a credit of six, twelve and eighteen months, with interest from the day of sale. &als. The commissioners reported, that after advertising, &c., they sold the tract of land in the bill mentioned, known as the home tract, at public outcry, to C. D. and H. W. Straley, for the sum of $1,700, that being the highest bid offered, and they had complied with the terms of sale. After signing their report they add: Your commissioners would further report, that they find from the commissioners' books that the aforesaid lauds, so sold as aforesaid, were assessed at the last assessment made for the purpose of taxation at $1,189.50. See extract made from commissioners' books herewith filed, marked S. H. The land sold for more than its assessed value. The abstract from the commissioners' books states the quantity of land at one hundred and eighty-three acres. Barger excepted to the report of the commissioners: 1st. That they only advertised the lands of said Barger in Tazewell county, and sold the lands lying in Tazewell and Mercer counties, West Virginia. 2d. The decree did not authorize the commissioners to sell the land in Mercer county. 3d. The land sold, as value, or one half of a whole, did not bring half its |