Hall v. James , 1880 Va. LEXIS 10 ( 1880 )

Axdersoh, J.,

delivered the opinion of the court.

John C. James obtained a decree against James C. Collie, late sheriff of Pittsylvania county, and as such administrator of Stephen Law, deceased, in the circuit court of Pittsylvania county, on the 17th of September, 1875, which ■directed the said Collie, out of a fund in his hands of $948.80 due the estate of the said Stephen Law, to pay to the said John C. James the sum of $839.95; and an execution issued on said decree against said Collie, which was xeturned “ no effects.”

On the execution was claimed by endorsement $560 by Chis. E. Dabney, $100 by Cfaiswell Dabney and J. D. Coles, and $100 by R. S. Baldwin, all claimed as liens on tfae executions for fees. And all were excepted to by tfae counsel of James except tfae $100 claimed by Cfaiswell Dabney and J. D. Coles.

• William H. Hall was one of tfae sureties of tfae said James H. Collie, in fais official bond as sheriff of Pittsylvania county, to wfaom tfae estate of Stephen Law faad been committed for administration, and against wfaom there faad been tfae decree aforesaid. And John C. James, for faim- and all other creditors of William H. Hall, deceased, who will contribute to tfae costs of tfae suit, brought this suit in equity against William J. Overby, administrator of William H. Hall, then deceased, Eliza P. Hall and John H. Hall, tfae object of which, suit was to set aside a deed which William H. Hall and Eliza P. Hall fais wife faad made to their son, John H. Hall, for 356 acres of land in tfae county of Pittsylvania, as fraudulent and made to delay and hinder creditors, and to subject tfae land to tfae satisfaction of fais decree, which, subject to sundry credits specified, tfae bill allows is still in force. Tfae bill sets out more fully tfae facts of tfae case, and tfae breach by Collie of fais official bond, and tfae liability of Hall as one of Collie’s ten sureties, who are named in tfae said bill, but neither of wfaom, except Hall, is made a party to tfae suit.

Tfae defendants demurred to tfae bill as insufficient in law, and tfae plaintiff joined in tfae demurrer. And tfae cause coming on to be heard on tfae 22d of February, 1877, on tfae bill and exhibits, and tfae demurrer and joinder therein, tfae court decreed that tfae demurrer be overruled, and that tfae defendants have leave to answer over from which decree this appeal was allowed.

It is contended that tfae demurrer ought to have been sustained for the want of necessary parties. If that appears on the face of the bill, it is good ground of demurrer.

The court is of opinion that the claimants of feés endorsed upon the execution were not necessary parties pro forma. The bill is a creditor’s bill) and plaintiff cannot have a decree for his debt until an account is ordered and taken of all debts against William H. Hall’s estate. If attorneys are entitled to any part of plaintiff’s execution by virtue of endorsements thereon, they can as creditors prove their claims before the commissioner when the account to be ordered is taken.

The court is also of opinion that the heirs of William H. Hall have no interest in the controversy about the land, and were not necessary or proper parties. The deed though fraudulent is good between the parties, and binds the heirs. They are in privity and could never set up the fraud to avoid it. If the land brings more money than is required to pay the debts of William H. Hall, the excess goes to the purchaser, not to William Hall’s heirs or personal representatives.

The court is further of opinion that the co-sureties of William H. Hall should be parties before his land can be taken to pay complainant’s debt. His representatives have right to contribution from his co-securities in the payment of the debt. Each surety is equitably bound for his proportion of the debt; and it is not just that one should be required to pay the whole in the first instance, and then to seek contribution from the others. All ought to be convened at the same time, and the debt apportioned amongst them, according to the principles declared in Horton v. Bond, 28 Gratt. 815, and other cases decided by this court. But this may be done in the progress of the cause after the contest is over in regard to the alleged deed from William H. Hall to Ms son, in which contest the interest of the co-sureties is the same as the complainants.

The court is of opinion therefore to affirm the decree of the circuit court with costs, and to remand the cause for further proceedings to he had therein, in conformity with this opirnon, in order to a final decree.

Decree affirmed.