1851. July Term. Lewis & als. V. Caperton's ex'or & als. to be applied first to the payment of the purchase money payable to the said Thomas P. Lewis and his assignees. And in applying the proceeds aforesaid to the payment of the purchase money, the proceeds arising from the sale of said Thomas P. Lewis's interest in the real estate, other than the tract of 159 acres, known by the name of the Sweet springs, embraced in the mort gage to William E. Haskell of the 9th February 1837, to be first appropriated for that purpose; and if any thing remains unpaid, the balance so remaining to be satisfied out of the proceeds arising from the sale of the moiety of said tract of 159 acres, sold by Thomas to John B. Lewis; the court being of opinion that as Haskell's lien extends to but part of the subject, he has a right to require the application of the proceeds in the manner aforesaid, so as to enlarge the fund out of which he alone can look for satisfaction. 8. After the payment of the purchase money, the residue of the fund arising from the sale of the entire tract of 159 acres, known by the name of the Sweet springs, to be applied to the payment of the debt secured by the mortgage to Haskell. 9. After the satisfaction of the purchase money and the Haskell debt, the residue of the fund arising from the sale of the lands aforesaid, and all the real estate described in the deed of John B. Lewis to James L. Woodville for the Bank of Virginia, of the 16th March 1842, to be applied to the payment of the balance of the debt due to said bank, after crediting the amount ap plied thereto arising from the rents as aforesaid, and the debt of William B. Phillips, secured by the deed to H. Massie for the benefit of Phillips, of the 16th March 1842; and should the fund be insufficient to discharge both debts, the proceeds to be ratably divided between the debt of Phillips and the balance due to the bank after deducting the credit for rents. . 10. The residue of the proceeds arising from the sale of said real estate to be applied, next after the debts due the Bank of Virginia and Phillips are satisfied, to the satisfaction of the debt secured by the deed to H. Massie for J. L. Woodville, of the 4th April 1842, or the balance unpaid after crediting the same with the rents and proceeds of the sale of the furniture as aforesaid. 11. The general creditors secured by the deed to H. Massie of the 5th April 1842, except the said Price and Damron, who are to be paid out of the rents as aforesaid, will be next entitled to come in, the fund to be distributed pro rata among them, if insufficient to pay all the debts; and if any of such debts have been discharged by any security, he is to be entitled to stand in the shoes of the creditor paid. 12. Next the judgment creditors, Caperton and Henning, will be entitled to payment of any balance due on their judgments, after crediting the same with the proceeds arising from the sales of negroes, hires, personal property and rents, as aforesaid. 13. And the residue, if any remain, after satisfying all the other creditors, to be applied to the debt due William L. Lewis in his own right, and the debt due to him as trustee of C. S. Lewis, secured by his mortgages, which, though void as against subsequent incumbrancers of the whole subject and creditors, is good as between the parties. 14. And lastly, if any surplus should remain after the payment of all of said incumbrances and judgments, the same, or so much thereof as may be equal in value to the price of the slaves and their increase, to be settled and secured upon C. S. Lewis, the wife of John B. Lewis, to be held according to the terms and stipulations of the deed of the 5th of April 1842, as explained by the deed of the 18th August 1842. 1851. July Term. Lewis & als. V. Caperton's ex'or & als. 1851. July Term. Lewis & ais. V. Caperton's ex'or & als. But before any distribution is made, the sums heretofore allowed under interlocutory orders are to be deducted, and all the costs incurred in the prosecution of these suits in said Circuit court are to be paid out of the funds arising and to arise from sales and rent of real estate, the sales and rent of perishable property, and sales and hires of negroes; the three funds to contribute ratably to the payment of the costs in the Circuit court. It is therefore adjudged and ordered that said decree, so far as it conflicts with the principles herein above declared, is erroneous, and that the same be reversed and annulled; and that the appellees in the case of Lewis and wife and others against Caperton and others, as the parties substantially prevailing, recover of the appellants their costs here expended, and that the appellants in the other cases recover of the appellees their costs here expended. And this cause is remanded, with instructions to direct an account to ascertain the proportions of rent to be credited to the real and personal fund as aforesaid; and also to ascertain the whole amount of funds in hand, and arising from the sales to be directed, which will remain for distribution after deducting the sums heretofore allowed by the court, and all costs; and the amount of the several debts towards which the same is to be applied; that a proper conveyance be executed by the said Thomas P. Lewis, or a commissioner, to the said John B., and acknowledged and filed, so that when a sale is made and confirmed, the same may be withdrawn and recorded; and that in the meantime commissioners to be appointed by the court be decreed to make sale of the real property embraced in the several mortgages and deeds of trust herein declared to be valid, and after allowing a proper time to redeem the property by payment of the debts charged thereon, and also to make sale of the perishable property unsold, the fur niture, and the slaves named in the deeds of January 11, 1839, and of April 5, 1842, together with their increase; the slaves and personal property to be sold for cash, and the real estate to be sold in the following order: first, the tract of 159 acres, known as the Sweet springs tract; second, the residue of the tracts of which said Thomas P. and John B. Lewis were joint owners, dividing such residue in such mode as will be best calculated to enhance the price; third,any other lands of John B. Lewis embraced in the deed of trust to secure the Bank of Virginia; the sales of the real estate to be on a credit of 1, 2, 3 and 4 years, the purchasers giving bond and good security for the amount of the purchase money, and a lien being retained on the lands sold for the security thereof; and that said commissioner report, &c. ran. DANIEL, J. Concurred in all respects in the opinion of the court, except as to the deed of trust of the 11th day of March 1842, made to secure the debt of CochThe want of a schedule, the vague manner in which the property is described, the perishable character of said property, the long time given before a sale could be made, and the circumstances under which the deed was executed, rendered it, in his opinion, fraudulent and void as a security for the payment of the debt to secure which it purports to have been made. BALDWIN, J. dissented from so much of the opinion. of the court as avoids the mortgage security given by J. B. Lewis, of the 24th day of February 1842, in regard to the debt due to William L. Lewis. 1851. July Term. Lewis & als. V. Caperton's ex'or & als. 1851. October Term. Richmond. WADSWORTH & als. v. ALLEN, &c. (Absent Cabell, P.) November 10th. 1. A letter of credit addressed to W & W may be proved to have 2. A guarantor may specify in the letter of credit which he gives 4. What is reasonable notice of the failure of the principal to 5. The fact that the principal gave his bond for the goods he purchased did not release the guarantor. This was an action brought in the Circuit court of Cumberland county by John E. Wadsworth, Daniel B. Turner and George S Palmer, surviving partners of themselves and Orren Williams, late merchants and partners doing business under the name of Wadsworth, Williams & Co., against Charles B. Allen and William. Phaup. The declaration counted on the following letter of credit: |