must come in time, and not after the property has been sold under the authority of the deed to a bona fide purchaser, who has paid his money and received his title, and thereby extinguished, quoad that property, the incumbrancer on the one hand, and the creditors at large on the other. The property is thenceforth his, and he may defy them all. In this case, it is true, the whole of the purchase money has not been paid by Ragland, the purchaser under the trust deed, and this action is brought to recover the balance due; but, as already shewn, it does not appear that Oliver Cross is exclusively entitled to it. The payment above mentioned by Ragland in 1816, of the judgment against him and Cross on the forthcoming bond, in which Cross was the principal and he was the surety, thereby created a simple contract debt from Cross to Ragland, recoverable in assumpsit, which was barred when this action was brought in 1825 on Ragland's bond to Glazebrook; and so, for that reason also, was not a good set-off against that bond. Ragland by that payment did not acquire the right of being substituted at law to the judgment creditor. The doctrine of substitution is the mere creature of equity, and if introduced into the courts of common law, must carry with it the marshalling of assets, and other kindred doctrines, and so tend to a confusion of jurisdictions. Of these subtle and pervading equities, the common law is ignorant. They have been devised by courts of equity for their own purposes of justice, and are administered by means of their own peculiar pow ers, by which all parties in interest may be convened before them, all matters of account and trust adjusted, and new life infused into extinguished securities. To such purposes and means the common law forum, by reason of its forms, its technicalities and its modes of trial, is but ill adapted. 1851. October Term. Glazebrook's adm'r V. Ragland's adm'r. 1851. October Term. Glazebrook's adm'r V. adm'r. These views of the merits dispense with the neces sity of considering the formal errors assigned by the plaintiff in error. It seems to me, therefore, that the Circuit court erred Ragland's in permitting the evidence of set-off in the bills of exception mentioned to go to the jury; and that its judg ment is therefore erroneous. ALLEN, J. concurred in the opinion of Judge Mon cure. DANIEL, J. concurred in the opinion of Judge Bald Prior to 1819 a testator devises to his three daughters by name his estate, "both real and personal," "to them and their heirs lawfully begotten of their bodies." "And in case either of my daughters should die without heir or heirs as above mentioned, the surviving ones to enjoy their equal part." This is an estate tail, which by the statute is converted into a fee. And the limitation over is after an indefinite failure of issue, and void. This was an action of detinue brought in 1845 in the Circuit court of Halifax county, by Hopkins Nowlin and Cloe Irby, his wife, against Matthew Winfree, to recover a number of slaves. On the trial the jury found a special verdict, which presented the case as follows: Benjamin Hall died in the year 1803, leaving a will which was duly admitted to probat in the County court of Halifax. After directing his debts to be paid, and giving to his wife for her life certain real estate, slaves and other property, he gave to each of his three sons, by separate clauses of his will, certain parts of his estate, in fee, including in the gift to one of them the land given to his wife for life; and he declared that they were not to have any further interest in his estate. Then comes the two following clauses: "I give and bequeath to my three daughters, to-wit, Caty Miller, Sally Hall and Cloe Irby Hall, all that part of my estate not herein before mentioned, both real and personal, after the payment of my debts before mentioned, to them and their heirs lawfully begotten of their bodies: The above mentioned Caty Miller to account for all that part of my estate which she hath heretofore had in possession when a division is made." "Also it is my will and desire that all that part of my estate which I have lent to my wife, and not herein otherwise given, should after her death be divided as above mentioned; and in case either of my daughters should die without heir or heirs as above mentioned, the surviving ones to enjoy their equal part.” Of the three daughters of the testator, Caty Miller died first, leaving children. Sally Hall married the defendant Winfree, and died before the institution of this suit, leaving no child or other descendant; and Cloe Irby married the plaintiff Nowlin, and is yet living. The slaves claimed in the action are either the slaves received by Mrs. Winfree from her father's estate or their descendants. Upon the special verdict the court rendered a judgment for the defendant. Whereupon the plaintiffs applied to this court for a supersedeas, which was granted. i852. January Term. Nowlin & wife V. Winfree. 1852. January Term. Nowlin & wife V. Winfree. The cause was elaborately argued by Stanard and Bouldin, for the appellants, and Robinson, for the appellee; but the authorities have been given in two late cases, and the question has almost ceased to be of any practical importance. ALLEN, J. delivered the opinion of the court. The question presented by the special verdict, as to the proper construction of the will of Benjamin Hall deceased, has been frequently under consideration in this court. The case of Bells v. Gillespie, 5 Rand. 273, presented precisely the same question, and the principle there settled rules this case. That case conformed to the earlier decisions of this court, giving a construction to the laws docking entails; and it has been recognized and followed in the subsequent cases of Broaddus & wife v. Turner, 5 Rand. 308; Griffith v. Thomson, 1 Leigh 321; Callava v. Pope, 3 Leigh 103; and Deane v. Hansford, 9 Leigh 253. The principle thus firmly established by a series of adjudications has become a rule of property in the construction of wills made prior to 1819, and ought not now to be questioned, the more especially as but few cases are likely to occur hereafter in which the question can arise. According to these authorities the will in this case created an estate tail in the first taker by express words; and the bequest over after the death of the daughter without heirs was an executory limitation after an indefinite failure of issue, and therefore void, and the daughters took the slaves in absolute property. Judgment affirmed with costs. BALDWIN, J. dissented. Richmond. LENOWS v. LENOW. (Absent Cabell, P.) February 2d. A proceeding by foreign attachment is instituted against two persons, as jointly indebted to the plaintiff. One of them appears and answers the bill; but the other is regularly proceeded against as an absent debtor, and there is a joint decree against both defendants. HELD: 1st. That the absent defendant who did not appear can not appeal. 2d. But the decree being a joint decree, and being erro- This was a case of foreign attachment, brought in the Circuit court of Southampton county, by Jacob Lenow against Joseph and James Lenow as absent debtors, and Frances Lenow as a home defendant having effects of Joseph Lenow in her hands. The bill charged that Joseph and James Lenow were indebted to the plaintiff by a bond in which they were both bound for 1600 dollars. Frances Lenow answered the bill, admitting that she had in her hands effects of Joseph Lenow. Joseph Lenow appeared and was permitted to file his answer, in which he denied that he or James owed the plaintiff anything. He admitted that the bond for 1600 dollars had existed, but that upon a settlement it had been delivered up and a bond for 700 dollars, the balance due, was executed by James Lenow, who was the principal debtor; and that this bond had been afterwards discharged by him. James Lenow was proceeded against as an absent defendant, and the bill was taken for confessed as to him. 1852. January Term. |