knew the lands, one of whom valued them at $3,000, and the other at $4,000. 1877. July Term. Barger & als. Under the operation of the act of April 2d, 1873, these causes were removed to the circuit court of V. Tazewell county, and came on to be heard on the 5th Buckland day of September 1873; when the court overruled the exceptions of Barger to the commissioners' report and confirmed it, and disposed of the cash received in payment of the expenses and costs. At the September term of the court for 1874, Barger upon notice to the parties, moved the court to review and reverse as erroneous the decrees by default of May 29th, 1873, and of September 5th, 1873. And in his notice he sets out the grounds upon which he proposed to found his motion. These are substantially the same relied upon in the petition for appeal, and which are stated in Judge Moncure's opinion. The plaintiffs in the suits filed a plea in answer to the motion, in which they state that Barger had, on the 1st of September, 1873, been adjudged a bankrupt upon his own petition; and that the commissioners acting under the authority of the decree of 29th May, 1873, in these causes, were, by an order of restraint from the said Federal court, enjoined from proceeding in any further manner upon the duties imposed on them by the court under which they acted. By reason whereof the defendants say that the said Barger has been and is divested of all right, title and interest in and to the matters and things set forth in said notice, and has wholly incapacitated himself from maintaining the same. On the hearing of the motion, the court, after referring to the order of the United States court prohibiting any further proceedings in these causes in this court, on consideration thereof declined to hear the 1877. July said motion until the said Barger should dismiss the Term. said restraining order. And time was given him until the next term of the court to have the said restraining order dismissed. Barger V. Buckland & als. The order referred to in the plea of the defendants to the said motion was made upon the petition of Barger, filed in the United States court, which, after setting out that he had been declared a bankrupt, and also setting out the debts secured by the deeds of trust on his land, and his judgment creditors, the suits brought by them for the sale of the land, and the sale at the price of $1,700, and claiming that the proceedings of any other court affecting his rights or property, after filing his petition in bankruptcy, were illegal and void, he insists upon his rights both under the state and bankrupt laws, to claim his homestead exemption. He states that the fund arising from the sale of his land is undistributed, and he prays that C. D. and H. W. Straley, the purchasers, be enjoined from paying the purchase money, and that the judgment creditors be enjoined and prohibited from taking steps in the state court towards a distribution of the fund; and that the surplus of the $1,700 purchase money, after satisfying the deeds of trust, be set aside as his homestead, and for general relief. In October, 1873, upon the motion of Jacob Barger the restraining order herein before referred to was dissolved, and leave was given to the creditors of Barger and to Barger (or his assignee John Walsh for him) to litigate in the circuit court of Tazewell, and such other state court as may have jurisdiction, including the court of appeals of Virginia, the matters in controversy between said Barger and his creditors, and their respective rights as to the liabilities and property of said Barger. 1877. July Term. Barger V. & als. The cause came on to be finally heard on the 17th of May 1875, upon the papers formerly read, and the motion of Barger to reverse the decrees of the 29th of May 1873, and of the 5th of September 1873, and the plea of the defendants to said motion, and the record Buckland of the said bankruptcy proceedings. Upon consideration whereof, the court was of opinion that the decree of the 5th of September 1873 was not a decree by default, it appearing that said Barger appeared at that time in said cause and made defence, and hence that said cause could not be corrected in that court upon the said motion of said Barger; and it was decreed that the motion be dismissed with costs. And it appearing to the court that the bonds executed for the purchase money of the land, sold under the decree of the court, had matured, and then amounted to $1,707.63, the court after stating the amount due at that date to each of the said parties, showing that all of them might be paid out of the fund, leaving a balance of $56.50, directed the commissioners to assign to each of said creditors the amount due him. And it further appearing that C. D. and H. W. Straley had not had possession of the land since their purchase, they were directed to be credited upon their bonds with the said balance of $56.50; and a writ of possession was directed to issue, and a commissioner was appointed to convey to the said Straleys all the right, title and interest of the defendants, Jacob Barger and Evan H. Brown, in and to the said land, with covenants of special warranty, &c. Jacob Barger thereupon applied to a judge of this court for an appeal; which was allowed. Sheffey and Williams, for the appellant. Graham and French, for the appellees. 1877. July Term. Barger V. & als. MONCURE, P., delivered the opinion of the court. The court is of opinion that the appellant has a right to prosecute this appeal; for although pending the Buckland suit, in which the decrees appealed from were rendered, he became a bankrupt, whereby his estate generally was vested in his assignee in bankruptcy; yet he still had, and continues to have, such an interest in his estate, on account of his claim to exemptions and homestead of the same, as entitles him to prosecute this appeal, which therefore ought not to be dismissed on the ground of his want of such an interest. The court is further of opinion that there is no error in the decree of the 29th day of May 1873, "because it decrees sale of land, the legal title to which is outstanding in Hercules Scott, who was no party to any of the suits, and was not in any way brought before the court." The said legal title became vested in Hercules Scott, if at all, under and by virtue of a deed of trust bearing date the 5th day of April 1861, which was about that time duly recorded in the clerk's offices of Mercer and Tazewell counties, both of which were then in Virginia, and which adjoin each other. The land conveyed by the said deed is therein described as "a certain tract or parcel of land lying partly in Tazewell county, and the remaining part in Mercer county, the tract containing about three hundred and eighty acres, being the land whereon I now reside, containing all the land I own on the waters of the Brush Fork of Bluestone, the same composed of two surveys, be the same more or less, in trust to secure C. D. and H. W. Straley in the sum of $625, for which there is a bond this day executed, bearing date the 5th April 1861, and due twelve months after date, with interest from date." Since the date of that deed Mercer county has be 1877. July Term. V. & als. come a part of West Virginia, while Tazewell county, in which the mansion house on the said tract of land is situate, and in which the appellant always has reBarger sided, and yet resides, still remains in Virginia. The deed was executed only by Jacob Barger, the appel- Buckland lant. Hercules Scott did not execute the deed, and it does not appear that he ever acted under it, or accepted it, or its terms, or had any knowledge of its execution by the grantor. All the other parties having any interest in, or title to the land, resided and continue to reside in Virginia, except the said Scott and the Straleys, who, it seems, reside in West Virginia. The Straleys have filed their answer, and thus submitted themselves and their interest in the said land to the jurisdiction of the court in which the decrees appealed from were rendered. Under these circumstances, the circuit court of Tazewell county had jurisdiction to make the said decree of the 29th of May 1873, notwithstanding the said Hercules Scott was not a party to the suits in which it was rendered. Penn v. Lord Baltimore, 1 Vez. Sr. R. 444; Massie v. Watts, 6 Cranch 148; Dickinson v. Hoomes' adm'r &c., 8 Gratt. 353, 410-428, and cases therein cited. The court is further of opinion, that there is no error in the said decree, "because it decrees substitution in favor of Austin Mullins to the lien of a debt which was a liability incurred prior to the 10th day of April 1865, and then, without any waiver on the part of Jacob Barger, orders sale of the land on six, twelve and eighteen months, instead of one, two and three years credit. Code of 1873, ch. 174, § 3." The liability of Austin Mullins as surety for Jacob Barger was incurred by a bond bearing date the 16th day of December 1870, payable twelve months after date, and executed in pursuance of an act approved May 28, |