1852. January Term.

Lenows

V

Lenow.

Whether anything was due to the plaintiff from the defendants, Joseph and James Lenow, was a mere question of fact, and this court thought there was nothing. due. The court below directed a commissioner to state an account of the payments made upon the bond, and according to the commissioner's last report there was due the sum of 368 dollars 83 cents, with interest thereon from the 6th of October 1841; and for this sum, with its interest, the court gave to the plaintiff a joint decree against Joseph and James Lenow; and directed the sheriff to sell the interest of Joseph Lenow in the slaves in the possession of Frances Lenow, and out of the proceeds to pay the debt, interest and costs. From this decree Joseph and James Lenow applied to this court for an appeal, which was allowed.

Stanard and Bouldin, for the appellant.

Although the absent defendant, James Lenow, who did not appear in the court below, could not appeal from that decree, as it has been held by this court in Platt v. Howland, 10 Leigh 507, and Barbee v. Pannill, 6 Gratt. 442, yet Joseph Lenow did appear and answer, and his appeal is properly here. The decree appealed from is a joint decree against both Joseph and James Lenow. Joseph Lenow is interested to have the whole decree reversed, because, if affirmed as to James, when he pays the money he may call upon Joseph for contribution. But further, as we have said, the decree is a joint decree against both; and if the court reverses the decree, from the necessity of its nature, the whole decree is reversed: And as James Lenow is not before the court upon this appeal, the court cannot enter another decree against him.

Macfarland, for the appellee, referred to Platt v. Howland, 10 Leigh 507, to shew that if there was error against the absent defendants it could not be cor

The

rected by appeal. He also referred to Heffernan v.
Grymes, 2 Leigh 512, to shew that the home defend-
ant could not correct the decree as to the absent de-
fendants, by appeal to this court. Then the question
is whether one of two absent defendants can come in
and make himself a party and contest the plaintiff's
claim as to both. There is no principle which will au-
thorize him to defend the case for the other absent de-
fendant, that did not equally apply to a defence made
by a home defendant for the absent defendant.
policy of the statute, too, forbids the relief to the one
upon the appearance and defence of the other. It is
enabling one to make defence without giving to the
plaintiff the security to which the law entitles him.
Moreover, although the party appealing is bound if the
decree is affirmed, yet the other absent defendant is
not bound. And he thus plays the safe game, of
heads I win, tails you lose: If the decree is reversed,
he has the full benefit of it; if it is affirmed, and it
may be affirmed by a divided court, he is not bound.

DANIEL, J. delivered the opinion of the court.

The court is satisfied, by the pleadings and proofs in the cause, that the bond of sixteen hundred dollars, in the bill and proceedings mentioned, had been reduced prior to the 1st September 1840, by payments, to about the sum of seven hundred dollars; that on the day last mentioned a new bond (whether executed by James Lenow or Joseph Lenow does not distinctly appear) for the said balance of seven hundred dollars was delivered by the said Joseph to the appellee, Jacob Lenow, and accepted by the latter in satisfaction and discharge of the said balance, and that the said bond of sixteen hundred dollars was thereupon surrendered by the said Jacob to the said Joseph; and that thereafter and prior to the institution of this suit the said bond of seven hundred dollars was fully satisfied, by payments

1852. January Term.

Lenows

V.

Lenow.

1852. January

Term.

Lenows
V.
Lenow.

made by the said James and Joseph. The court is therefore of opinion that the Circuit court erred in adopting the special statement of the commissioner as the basis of its decree, and in rendering a decree against the appellants for the balance reported in said statement, and in ordering a sale of the property attached; and that it ought, instead thereof, to have confirmed the original report of the commissioner, and dismissed the bill. The court is also further of opinion, that notwithstanding James Lenow was regularly proceeded against as an absent defendant, and therefore, according to the decisions of this court in the cases of Platt v. Howland, 10 Leigh 507, and of Barbee v. Pannill, 6 Gratt. 442, had no right to appeal to this court on account of any error in the decree against him; yet that as Joseph Lenow filed his answer under the permission of the court, and thus entitled himself to the privileges of a home defendant, and succeeded, in the opinion of this court, as above indicated, in proving a defence which was in no respect personal, but established the satisfaction and discharge of the joint obligation on which the suit was founded, the appeal of the said Joseph necessarily brings under review the propriety of the whole decree, and devolves upon this court the duty of correcting and reversing it, in favour as well of the said James as of the said Joseph. The court is therefore of opinion to reverse the whole decree, with costs to the appellant, Joseph Lenow. And this court, proceeding to render such decree as the Circuit court ought to have rendered, doth confirm the original report of the commissioner, and dismiss the bill with costs to the said Joseph Lenow.

DECREE REVERSED.

Richmond.

DICKINSON v. HOOMES's adm'r & als.

(Absent Cabell, P)

February 2d.

There is a devise to J, with a limitation over, upon his dying
without issue at his death, to his brother R if he should
survive him, or his representatives, and R dies in the life-
time of J. J sells and conveys the land to A; and R,
though he does not convey the land, is a party to the deed,
and J and R covenant as follows: That the said J, for him-
self and his heirs, and the said R, as contingent devisee
under the will of Col. J, by whom said land was devised
to J, do hereby covenant and agree to and with the said A,
that they will warrant and defend the fee simple estate,
&c., to said land, to him and his heirs forever, against the
claim of themselves and their heirs, and the claim of any
person claiming under them by virtue of the will afore-
said, and do relinquish and fully confirm to said A all the
right they or their heirs now have or may hereafter have
to said land or any part thereof, to him and his heirs, free
from the claim of the said J and R and their heirs, and of
all other persons in the whole world. HELD:

1st. That this covenant of R extends to the claim of his
children to the land, though they claim not as his
heirs, but as devisees under the will of Col. J.
2d. That the covenant of R is a covenant running with
the land, and a purchaser claiming under A, a por-
tion thereof, by a regular chain of conveyances, is
entitled to the benefit of said covenant for his
indemnity against said claims.

3d. That the children of R having inherited from him
lands in Kentucky, and as by the laws of that
State lands descended may be subjected to the
payment of the debts of the ancestor, and the heir
is bound by such a covenant of warranty by the
ancestor, a court of equity in the State of Virginia
may compel the children of R residing within the
jurisdiction to account for any lands in Kentucky
descended to them as his heirs, as a trust subject
for the payment of his debts: And under the cir-
cumstances of this case, the power should be
exerted.

VOL. VIII.-23

1852. January Term.

1852.

January
Term.

Dickinson

V.

Hoomes's adm'r

& als.

4th. Under the circumstances of the case, the heirs held bound to account for only so much of the Kentucky lands as they have actually gotten or may get possession of, with the rents and profits derived therefrom, deducting the cost and expense of recovering the lands.

John Hoomes the elder died in 1805, leaving a will dated in 1804, whereby he gave to each of his sons, John, William, Richard and Armistead, to his daughter Sophia, and grandson John Waller Hoomes, land and slaves in fee simple; but directed that if any of them should die without issue living at his death, his estate should be divided equally between the survivors, or their representatives, according to the principles of the law of descents. All of them survived the testator, and took possession of the estates devised to them. In 1819 John Hoomes the younger sold and conveyed the land devised to him to Samuel A. Apperson; and Richard Hoomes and the other children of John Hoomes the elder united in the covenants contained in the deed.

These covenants are as follows: "And the said John Hoomes, for himself and his heirs, and the said William Hoomes, Richard Hoomes, Armistead Hoomes and Wilson Allen and Sophia, his wife, for themselves and their heirs, as contingent devisees or legatees under the will of Col. John Hoomes, late of the Bowling Green, deceased, by whom said land was devised to John Hoomes, do hereby covenant and agree to and with the said Samuel A. Apperson, that they will warrant and defend the fee simple estate and complete right and title to said two tracts of land, to him and his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming from, by or under them, in virtue of the will aforesaid, and do relinquish and fully confirm to said S. A. Apperson all the right they or their heirs now have, or might or may hereafter have, to said land, or any part thereof, to him and his heirs and assigns forever, free from them, the said