V. & als. 1877. 1870, entitled "an act to prevent the sacrifice of perJuly Term. sonal property at forced sales"-Acts of Assembly, 1869-'70, chapter 120, page 162; which bond by said Barger act was required to be returned in the same manner Buchland as a forthcoming bond is required to be returned, and was declared, from and after its return, to have, as against the obligors therein then living, the force of a judgment. The surety in this bond, Mullins, was entitled by substitution to the lien thereby created under the said act; which lien certainly was to secure a debt contracted, or liability incurred, after the 10th day of April 1865. Id., ch. 277, p. 426; Code, ch. 174, § 3, p. 1123. In fact, all the judgments on account of which the land was decreed to be sold in these cases, were obtained after that day; and the deed of trust in the proceedings mentioned, of the 14th day of December 1871, from said Barger to Evan H. Brown, conveying the said land and other property to secure a debt therein mentioned, due by said Barger to C. D. and H. W. Straley, to satisfy which, as well as the said judgment, the said sales was decreed to be made, expressly authorized a sale under the said deed to be made for cash. It was not error, therefore, to decree a sale of the said land on a credit of six, twelve and eighteen months; as was done in the said decree of the 29th day of May 1873. The court is further of opinion, that there is no error in the said decree, "because it decrees a sale of the land in the bill mentioned, which was three hundred and eighty acres, lying partly in Virginia and partly in West Virginia, thus going beyond the power and jurisdiction of the court." The reasons and authorities against this third assignment of error are the same as those already stated and cited in regard to the first assignment of error. The court is further of opinion, that there is no error in the said decree, “because it did not specify in exact terms the land to be sold, but used such vague and indefinite terms with regard to it, that it was within the power or caprice of the commissioners to sell all the lands mentioned in the Brown trust deed." The decree was for the sale of the land in the bill and proceedings mentioned, or so much thereof as might suffice to satisfy the purposes of the decree. The land is described with sufficient certainty in the bills, and the decree could be made certain by reference to the bills. "That is certain which may be made certain," applies to the case. The court is further of opinion that there is no error in the said decree, "because it did not dismiss the Marrs and Buckland bills and the Buckland petition, when the charges of fraud so freely made therein were ascertained and decreed to be false." The judgment creditors of Barger had a right to subject to the liens of their judgments respectively such real estate, or such interest in such real estate, as was liable thereto. If he had conveyed any of his real estate by a deed fraudulent as to his creditors, they had a right to impeach such deed for fraud, and, if proved to be fraudulent, to have it set aside and the land entirely subjected to the payment of the debts due by him to them. Or, if the deed supposed and charged by the judgment creditors to be fraudulent as to them should turn out on investigation and enquiry to be fair and bona fide and intended to secure an honest debtor, and anything should remain after satisfying such debt, they would have a right to subject such residue to the payment of the debts due to them, and VOL. XXVIII-109 1877. July Term. Barger V. Buckland & als. V. &als. 1877. to do so in the same suit brought by them to impeach July Term. and set aside the deed, without the necessity of dismissing that suit and bringing another. They may Barger bring one suit in equity with a double aspect, and Buckland claim, in the alternative, to subject the whole estate. conveyed by the supposed fraudulent deed, if it turn out to be fraudulent, or the surplus which may remain after satisfying any incumbrance on the estate which may turn out to be valid against creditors. This is common practice, both convenient and economical, well sustained by authority. The court is further of opinion that there is no error in the said decree, "because it decreed large debts against Jacob Barger in favor of C. D. and H. W. Straley, his co-defendants, when, first, there was nothing in the pleadings to justify such a decree between co-defendants; second, they had not been required to account for the thousands of dollars worth of property conveyed to their trustees for their benefit; aud, third, they had been freely charged in two of the bills and the Buckland petition with guilty knowledge and participation in the frauds alleged against Jacob Barger." First. There was enough in the pleadings to justify such a decree between co-defendants. The claims in the bills are of judgment liens upon the land conveyed by the judgment debtor to secure a debt alleged by him to be due to his co-defendant, but alleged by the judgment creditors to be a fraudulent contrivance as to them, or not to be due, or not to be due in so large an amount as to absorb the whole value of the land. In such a case it is manifest that there would be amply enough in the pleadings to warrant any decree between co-defendants which justice might require. Such a decree would, in effect, be a part of the relief to which the judgment creditors 1877. July Term. Barger V. & als. would be entitled against their debtor. They would have a right to have the prior lien in favor of the codefendant discharged, in order that the residue may be applied to the payment of their judgments. Second. It is not alleged that they (the Straleys) Buckland have ever received any of the property conveyed to their trustees, or either of them for their benefit. No such allegation has been made, either by Barger or any of the other parties. No motion has been made by any party for any enquiry on the subject. If such an enquiry had been asked for, it would no doubt, as it should, have been, ordered. Probably it was not asked for, because it was known that none of the property had come to the hands of the trust creditors or their trustees, and because it was desired to avoid unnecessary expense. It may be asked for hereafter if desired. The deeds of trust were not executed by the trustees nor the trust creditors. Third. As the proofs did not sustain the charges made in two of the bills, and the Buckland petition against the trust creditors of guilty knowledge and participation in the frauds alleged against Jacob Barger, they were entitled to decrees against him for the debts due them by lien and secured by the deeds of trust, in order that the surplus might be ascertained and paid to the judgment creditors. The court is of opinion that there is no error in the said decree for the grounds assigned on the seventh, eighth, ninth and tenth assignments of error as follows, to wit: "7th. Because it permitted the parties to an angry controversy based upon charges of fraud, plaintiffs and defendants, to combine together against the other defendant for the purpose of dividing his property among them. If the charges of fraud were true, then 1877. the Straleys were particeps criminis, and entitled to no July Term. favor from the court. If they were false, then the plaintiffs who made them deserved no countenance in Barger V. Buckland & als. a forum of conscience." This has been already answered. "8th. Because it decreed in favor of J. W. Buckland for Tabor, without requiring process to be properly executed on Jacob Barger in that cause." Whether properly executed on him in that cause or not, it was properly executed on him in the other causes which came on to be heard together with that cause. He appeared and made defence to all the causes, without objecting that process had not been properly executed on him in that cause. He therefore waived the objection on that ground, if he had any. "9th. Because the court had no right to sell to pay inferior debts, lands conveyed in trust, without either setting aside the deeds and divesting the trustees of the title, or else compelling a full settlement of the trusts, and requiring all the property conveyed in trust to be brought before it or accounted for." This has already been sufficiently answered. "10th. The causes having been consolidated, and two of them having been brought in the same court with knowledge of the pendency of the first therein, it was error to decree separate costs against the defendant, Barger, in each case, especially when the charges of fraud were not sustained." The plaintiffs in the several suits had a right to bring them severally and to recover several costs; and it is doubtful whether they could have been consolidated without their consent. Claiborne v. Gross &c., 7 Leigh 331. The case is different from that of Stephenson v. Taverners, 9 Gratt. 398, which was a creditors' suit for the administration of assets, in which all the |