heirs, &c., in the sum of ten thousand dollars, or so much as the said Cabell may be in default to the said bank, to be paid to the said Putney whenever such default shall happen."

The covenant on the part of Cabell with Putney varies from his covenant with Davis only in point of form, except that the former stipulates in the event of Cabell's default with the bank, to make payment thereupon to Putney; and the effect of the two covenants respectively in regard to the real assets of the covenantors, and the consequent equities of the simple contract creditors, is essentially the same. The only difficulty in relation to the covenant with Putney is from the absence of direct evidence to prove that Cabell's note for 5000 dollars, subsequently made, endorsed and discounted, falls within its provision. The presumption, however, is that said note was not made for a new consideration originating after the covenant, but for the renewal of a note of that amount made by Cabell, with Putney as endorser, and discounted at the bank prior to the covenant. It is a matter, however, which can in all probability be reduced to a certainty, one way or the other, upon a reference to a commissioner, and such an enquiry ought to have been directed by the court below.

In proceeding to give relief to the plaintiffs as simple contract creditors entitled to marshal the assets, the court below had competent authority to decree, at the proper time, a sale of the real estate in the hands of the heirs, so far as requisite for that purpose: But it was premature to do so before adjudicating their several demands, and so ascertaining the amount of indebtedness chargeable upon the lands of the decedent. It is true that the sale which the court directed of land in Kanawha was upon the petition of the adult heirs and by consent of the plaintiffs; but no such consent could be given on the part of the infant heirs, and their rights

and interests were under the protection of the court. A sale, however, was had under the decree, which was reported to and confirmed by the court, and an order made for the collection of the proceeds; and although it was competent for the court, these proceedings being interlocutory, to set them aside in the further progress of the cause, upon its appearing that they were prejudicial to the interests of the infants, yet, on the other hand, if appearing to be beneficial to them, there could be no good reason for disturbing them in behalf of any other party. But a bill was filed in the same court by the purchasers at the sale, praying an injunction (which was granted) to judgments recovered on the bonds given by them for the purchase money, and seeking to set aside the decree for sale, and the proceedings under it, on the ground that the same being irregular and unwarranted as against the infant heirs, and subject to future impeachment by them, they (the purchasers) were exposed to the hazard of great loss, if compelled to pay up the purchase money.

To this bill of the purchasers the numerous creditors, the heirs of Cabell as well adults as infants, and other persons, were made defendants. Some of the defendants answered, and evidence was taken pro and con upon the question whether the land was sold at a price prejudicial or advantageous to the heirs, and that case is still pending and undetermined. The proceeding was, however, irregular and improper as a separate suit, and the bill ought to have been treated by the court as a mere adjunct of the original cause, and in the nature of a petition, and to have been brought to hearing therewith. And if so treated, it would have presented to the consideration of the court the enquiry whether the sale made under its decree was advantageous or injurious to the infant heirs.

Instead of taking this course, the original suit was again brought to a separate hearing, and the court,

1852. January Term.

Cralle
& als.
V.
Meem

& als.

1852. January Term.

(ralle

& als.

V. Meem & als.

without adjudicating any of the demands of the creditors, or making any disposition of the proceeds of sale of the Kanawha land, but leaving the injunction which had been granted to the purchasers in full force, and the land itself in their possession, and the objections which had been made to the sale thereof unadjudicated, rendered another interlocutory decree, by which the whole rents and profits of all the other real estate of the decedent were sequestered.

And the court is of opinion that there is no error in so much of the decree of the Circuit court as declares the principles upon which the assets, real and personal, of the intestate ought to be marshalled, but that it is erroneous in not directing the injunction bill of the purchasers of the Kanawha land and the proceedings thereupon to be heard together with and as a part of the proceedings of this suit, and in not adjudicating the question whether the sale of the Kanawha land ought to be established or set aside, and in not adjudicating and marshalling the respective claims of the creditors, and in all other respects wherein it conflicts with the principles above declared. It is therefore adjudged, ordered and decreed that so much of the decree of the Circuit court as is above declared to be erroneous be reversed and annulled, and that the residue thereof be affirmed, with costs to the appellants. And the cause is remanded to the Circuit court to be proceeded in conformably to the principles of this opinion and decree, and upon such further proofs as may be adduced by the parties.

Richmond.

SCHOFIELD v. Cox & als.

(Absent Cabell, P.)

March 4th.

1. A owns a tract of land on which there is a deed of trust to se-
cure a large debt. A sells two thirds of the land to B, and
for the purchase money takes from B eleven bonds pay-
able at successive periods, and a deed of trust upon the
property sold to secure them. A assigns to C the fifth,
sixth and seventh bonds due; and B pays to A, either be-
fore the assignment or afterwards, without notice of it,
rather more than enough to discharge the first four bonds;
and then A and B become insolvent. HELD:

1st. That C, as assignee of A, is entitled, as between him
and A, to the benefit of the deed of trust given by
B to secure the payment of his bonds.

2d. That C is entitled to have the one third of the land
not embraced in his security applied in the first
place to satisfy the first incumbrance, to the relief
of the two thirds of the land conveyed by B to se-
cure his bonds.

3d. That the payments beyond the amount of the first
four bonds, made by B to A without notice of the
assignment, having been made on account, are not
to be treated as applicable to the first bond as-
signed to C, but to the bonds held by A.

2. A living out of the State, D sues out a foreign attachment
against him, and attaches the one third of the land which
was not sold to B, and also the debt due from B to A; the
attachment being issued after the assignment to C. HELD:
1st. As between the attaching creditor and the assignee,
the latter has the preference.

2d. The whole land being sold together, the one third
and so much of the two thirds of the purchase
money as is necessary, will be applied to discharge
the first incumbrance; and the balance will be ap-
plied to pay the assignee.

3d. The attaching creditor proving his debt, is entitled
to a personal decree against his absent debtor,
though the property attached may be adjudged to
the assignee.

1852. January Term.

1852. January

Term.

V.

Cox & als.

This was a proceeding by foreign attachment, commenced in July 1841, in the Circuit court of Jefferson Schofield county, by Jesse Schofield against Luther J. Cox as an absent debtor, and Benjamin Ford and Daniel Snyder home defendants, having estate of the absent debtor in their hands. In the progress of the cause J. & A. H. Herr were, on their petition, admitted as parties defendants, and claimed the fund in the hands of Ford & Snyder, under assignment from Cox. The facts are as follows:

Cox being seised of certain mill property, subject to an incumbrance for 11,537 dollars, sold and conveyed two undivided thirds of it, free from incumbrance, to Snyder & Ford for 21,466 dollars 71 cents, payable in eleven instalments; two of which were for 2333 dollars 34 cents each, and payable on the 28th of March in the years 1841 and 1842, with interest from the date, which was on the 28th of November 1840; and the other nine were for 1866 dollars 67 cents each, and payable at 2, 4, 6, 8, 10, 12, 14, 16 and 18 months after date. To secure the payment of these instalments, Snyder & Ford executed their bonds and a deed of trust on the said two thirds of the property. On the 13th of April 1841 Cox assigned three of the intermediate bonds, to wit, the bonds payable at 8, 10 and 12 months after date, amounting together to 5600 dollars, to J. & A. H. Herr. After the assignment, to wit, in July 1841, Schofield, to whom Cox was indebted in the principal sum of 2317 dollars 89 cents, instituted a foreign attachment suit therefor against Cox, who was a nonresident of the State; and attached Cox's remaining one third of the property, and the debts due him by Snyder & Ford for the other two thirds. Snyder & Ford paid to Cox the two first instalments of 1866' dollars 67 cents each, and made various other payments at different times between the 18th of January and 27th of November 1841 inclusive, to the amount of 5630 dol