author: Mr. Justice Barbour

text:
    Thomas O. Burton, Appellant, vs. William L. Smith and others, Appellees.
    'Under the laws of Virginia in relation to lands of which the debtor has an actual seisin, • although there is no statute,in Virginia Which expressly makes a judgment or lien on the lands of the debtor, yet during the existence of the right of the' plaintiff to take out an elegit, the lien of the judgmenHs universally acknowledged..
    All the authorities, ancient and modem, agree in this proposition, that a reversion after an estate for life is assets, or, as some of the books express .it,- quasi assets, in the hands of' ' the'heir, in regard to the bond of the ancestor, binding heirs; and that in such case, the •plaintiff may take judgment of it, .quando accident. . Upon principle, it Would seem to be clear, that whatever estate descended to the heir, which was liable as assets to the - bond debt of the, ancestor, must be bound by a judgment obtained against the ancestor in his lifetime. ' '
    There is a current of authorities going to prove that a reversion after an estate for life is bound by a judgment obtained against -the ancestor, from whom it immediately descended.
    So far from its being proper for a Court to hesitate about decreeing a sale of an interest because it is reversionary, the character of the interest affords a stronger reason for such a decree, For although in regard to property in present actual possession, the elegit, although tardy in its- operation, yet is in some degree an effective remedy, inasmuch as the creditor will by that means annually receive, something towards his debt; whereas, in the case of a dry reversion, if the outstanding life estate should continue during half a century, the creditor might look on in hopeless despondency, without the possibility of receiving a cent from that source, except, through the interposition of a Court of equity-in decreeing a sale. . . • ,
    It is the very nature and essence of a lien, that no matter into whose hands the property goes, it passes cum onere. If this were not the case, it would1 cease to be a lien.
    APPEAL from the Circuit Court of the United States for the eastern district of Virginia. . •
    The case, as stated in the opinion of the Court, was as follows:
    “In the month of June, 1827, Smith and Kennedy obtained a judgment in the Circuit Court, against Reuben. Burton, for'#1348 75, with interest from the 14th of October, 1823, and costs. On this judgment an elegit was issued, on the 31st .of December, 1837. On the 12th of August, in the same year* -Reuben Burtón, by deed conveyed his real estate to certain {trustees, in trust, to sell the'same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included.
    . These last mentioned creditors, the.appellees, never assented to,, or accepted anything under the trust deed. Burtón having died; the only trustee who accepted the trust, on the 21st of December, 1829, sold, under the deed, all the estate, both real and personal,.conveyod .by it; and at that sale, Sarah Burton, by her agent, purchased, at • the price of $1000, the interest of .Reuben. Burton, that is, two: . fifth parts of a certain tract of-land called Springfield^ supposed to contain about five hundred acres, and also his interest in certain coal' pits on the same tract. The character of Reuben Burton’s interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after, an estate for life. Arid the cha.racter of his interest in the coal pits, as appears from an agreement in the record, was this: The heirs of Daniel Burton, of Whom Reuben Burton .was one;were to have, during the, widow’s life, the right of occupying, using, and working the coalpits, and the right and power of sinking'shafts, and searching for coal on-any part of the land, except the yard, &c., paying to the widow, during her life, the yearly sum of $200, for her dower interest.1 The same agree- . ment will show his interest in a mineral spring .included in the decree.
    After the death, of Reuben Burton, the appellees, finding, that there.was no personal estate to satisfy their debt, in September, 1834, filed their bill'to enforce the lien created by their .judgment; making," amongst others, Sarah Burton a defendant, as'purchaser of the in-" terest.of Reuben Burtoji before described, in the Springfield tract, of land and Coal pits.
    An amended bill was thereupon filed, making Thomas O. Burton, a defendant. He filed ah answer, insisting on the grounds taken by Sarah Burton.

      She ánswered, saying, that the property conveyed to her was not purchased for her own benefit, but for. thé benefit of her son Tho-. mas O. Burton, the appellant. . She insisted, ill her answer, that the .appellees had no right to enforce their judgment, as more than five years had elapsed since the death of Reuben Burton. She. denied ' that,the judgment. created any lien on the property purchased by her, which was valid against her. .She insisted that the-appellees were entitled to no relief in equity; and that, at all events, a sale should not be decreed.
    The cause coming on to be heard, the Court held the reversionary interest of Reuben Burton in the Springfield tract of land, ahd his interest in the right'of occupying and working the coal pits thereon, and, also, his interest in the mineral spring thereon, with the tweiiiyfive acres of land adjoining thereto, liable to the appellees’ judgment; and decreed a moiety of Reuben Burton’s interest to be sold:” From this decree an appeal was taken.”
    The case was submitted to the Court on printed arguments, by Mr. Lyons, for the appellant; and by Mr. Robinson.for the. appellees. ' ■
    The argument of Mr. Lyons was as follows:
    The appellant insists that the decree of the Circuit Court is erroneous, and ought to be reversed. 1st, Because the judgment in favour of the appellees against Reuben Burton, gave no lien upon the interest or share of Reuben Burton in the Springfield coal property, Which was purchased by Sarah Burton for the appellant; and which, by the decree of the Circuit Court, was adjudged to be sold.
    By the common law. a judgment • conferred no lien upon lands. That lien is the result entirely of the power to extend the lands,- and is therefore a statutory power conferred by the act commonly called the'statute of Westminster. This position is known to be familiar to the Court; but if authority is desired for it, it may be found in the opinion of Lord Hardwicke, in thé cáse of Stileiüan vs. Ashdown, 2 Atkyns’ Reports, 608, and every subsequent decision upon that subjectand especially in the opinion of -the late Chief Justice of the United States, in the case of the Bank of the United States vs. Win$íoh et al., 2 Brockenbrough’s Reports, 252; which is quoted, not only because of the high character of the authority, and the just weight which will be attached to it, but because of the distinct and emphatic manner in which the position is laid down, and the rights of the party claiming under the. judgment are, in a Court of equity, limited and confined to the right and power conferred by the judgment. The first inquiry then is, coulcj the appellees have extended the interest before mentioned, of Reuben Burton in the Springfield coal lands ? It is submitted that they could not. It will be.perceived by the Court, that the entire tract of land upon which the Springfield pits are, with the houses, &c., constituted the níansión establishment of Daniel Burton, the father of Reuben, who died intestate, leaving á widow, Sarah .Burton, and several children. Until dówer was assigned the widow she had the right to, retain the mansion establishment, and to derive her maintenance from it. While it. remained in that condition, therefore, it is assumed that no elegit could be levied upon it; because if an elegit issue against one child j so might one isspe against each child; and thus -the whole would b.e taken and- put into the possession of-the creditors, and the widow expelled,“and kept out, until by her writ she .was restored. The children could not lawfully expel the widow ;• the creditors of the children, standing in their place, could hot,of cOurse do it. If all could not do it, surely one could not. The lands in the hands of the widow before assignment of dówer, could not therefore be taken under. an elegit. No assignment of dower has taken place, unless the Court shall regard the agreement entered into by Mrs; -Burton and her children (exhibited by defendants,) as such assignment. Is the condi|ion of the -appellees aided by that paper,? It is submitted that so far from it, the condition is made.worse. ' If that agreement had not been entered into, any creditor of Reuben Burton might have filed his bill against the widow ánd heirs, -and compelled an assignment of dower, which being', made, he might have, levied his -elegit upon the share of Reuben Burton 5 but this agreement deprives the appellees of that power, becaps,e it is founded upon a good as well as valuable consideration — -was entered into before any right existed in the appellees^-and assigns to the widow, for her dower, the entire tract Of land, except, the. mineral spring, with twenty-five acres, and the right to work fheiloal mines, and charges them with an annuity of two hundred dollars per annum to the widow. The rights of the appellees, in respect to this property, are manifestly less than if the agreement' had not been'entered into. Cpuld Reuben Burton’s interest in the coal mines and spring,' with the twenty-five acres, have been taken under an .elegit, after the execution of the said agree- . ment ? It is respectfully submitted that it could not. By the inquisition under the elegit the property is .placed in the hands -of the creditor, who takes all the profits .of it, paying therefor a fair annual rent, t®. he applied as a credit against Jiis claim; and of the portion.thus placed in his hands no one has a right, to share the profits with him. If this may be done in favour of the creditor of one child, it may be done for the creditors of each; and if two .elegits issue'at the samq time Against the same: defendant, they take not. a moiety but the whole i and thus the widow who has renounced her claim to dower in the other lands of her husband, and thereby suffered them .to pass away from .her, is to be again ousted and deprived of the annuity, in consideration of-which, in great,part, she has made her relinquishment under an agreement with the. heirs, which is obligatory upon them, and as effectual to charge the property with the rights of the doweress as any which could have been resorted'to. It. is not necessary to the validity of an assignment of dower that it. should be registered: i. e. recorded as .a conveyance.. If it is, however, and. . this agreement is to be affected by the failure to register,, (although as to one of the parties it was fully proved, being acknowledged, and should have been recorded,) then it cannot diminish the rights of "the widow, and the argument upon the hypothesis that no assignment has been made, applies..
    If land is subject to a trust for the use of a grantor and another, e. g. to raise ah - annuity, and a judgment is rendered against the grantor, the land cannot he taken by elegit. Doe on demise of Hull. vs. Green Hill,4 Barnwell and Alderson, 684. In the present case the land was subject to a trust, and one of the uses charged upon it was to raise an annuity. ’ The agreement here being a case of dower, was as valid to charge it as any form of conveyance, and so to protect it; the reason is the same in each — the right of the annuitant.
    What, then, it may he asked, were the rights of the appellees in referencedó this, property, when they obtainéd. .their judgment?, They were, two-fold — either to take Reuben Burton undér a ca. sa., and thus acquire his rights whatever they were in the subject, and by express provision of the execution law, the right to sell them;' or upon the return of the fi. fa., to file a bill for an account of the rents and profits of the coal mines, and for a receiver, and a decree for thé satisfaction of the judgment out of it. In the lifetime of Reuben -Burton they could have done no more. An account of rents and profits cannot be had in the lifetime of the debtor, even,after* removing a fraudulent conveyance, if an elegit can be levied; and the1 power of a Court of equity tó sell the lands in such a! case is clearly repudiated by Lord Hardwieke in the case of Higgins et al. vs. The York Buildings Company, s^tkyns, 107. “The, proceeding to judgment at law, and the “ ljs gjendens” to enforce it in equity, would have given it, if not a liein exactly, a preferable claim; and a purchaser even for valuable consideration, would have been hound as a purchaser with notice. If a ck. sa. had been executed after the conveyance, the lien of the judgment would have been lost.

      In the absence of a “lis pendens,” and. when, ifthis view be correct, thgcappellees had not the/power to extend by an elegit, and had therefore no lien — viz. on the 12th day of August, in the year 1827, Reuben Burton conveyed the property to trustees for the benefit of 'his creditors. In the month of December, in the year 1829, more than two years after the' rendition; of the judgments, dpring the whole of which time no attempt was made to enforce the judgment as against the coal lands by the appellees, who are among the creditors enumerated as the persons for whose benefit the deed of trust is made — -a - sale of the subject is made under the deéd of trust by public, auction,, and the appellant became the purchaser. No step had been taken, nor any act done by the appellees indicating their dissent from the deed of trust, nor was any such step taken until the month of September, in the year 1834, .more than seven years after the judgment-was rendered. In. the answer all knowledge of the judgment of the plaintiff, as affecting the coal property at least, is denied; the impression it. seems being that an elegit had been levied upon other lands* and it is thought the evidence sustains the answer.
    Certainly the answer js not overthrown by the requisite degree of proof — there being oidy one witness to oppose it; and that witness is opposed in his present recollections by his own written statement made at the time of the sale
    The appellant stands, then in'me position of a purchaser for a valuable consideration, of property Upon which the appellees had acquired no lien, and to which, with equal equity, the appellant holds the legal title. In such a oase, the purchaser is entitled to the protection of a Court of equity: but if he is not, he is certainly, not the proper object for the vindictive exercise of its power, and the Court of equity will leave the. adversary, creditor to his legal rights. Sugden on Vendors, sec. 5, 338 — 344, and the opinion of Judge Green in Coutts .ns.-Walker,. 2 Leigh’s Reports* 268. The space allowed in this form of argument will not permit a comment on the reason of this rule, if it were nefcesSary.- Its justice is 'apparent: the fair purchaser for a valuable- consideration has, upon every principle, at least as much equity as the sleeping judgment creditor — one who sleeps for' sevén. years. - And why should a Court. of equity seek to turn the scale against -him— equity,-which always follows and-only aids the law? In sucha case the proper language of equity is :■ “ I cannot aid you against -one,who'is equally entitled to ,my. sympathy.: if you have any legal advantage over him, asSert it: I cannot, and would not if .1 could, prevent you.; but I can do no more.” .Here "the case is-peculiarly strong for the application of the rule, The judgment .creditor has, to. say the least, been guilty of the most culpable laches. He has .laid by for. seven years — during which time he took no step against the deed, or the property in question — the property of his debtor^ conveyed to secure, the payment of his among other -debts by a conveyance which, gave a priority over him, is sold; and thé money arising-from the sale applied' according to the provisions of the deed —more than two years having elapsed between the rendition of the judgment, and the sale under ~the deed. Here was time moslt ample-for any purpose, and if any step had beeft taken by the creditor, the priorities of the parties would have been- settled and the purchase money paid over accordingly. Passing by all this — after the tmstee has misapplied the purchase money, as the judgment Creditor contends, he comes into a Court of equity to ask as ágainst the purchaser, that which he cannot obtain at law. No principle is conceived upon which the plaim preferred can be sustained,
    II. If the. judgment did confer a lien, thqn the appellees, in the case as it now appears to the Court, i. e. unless it appeared that the. profits would- not in a reasonable time pay the debt, had no claim whatever to the aid of a Court of equity: that equity follows the law and oniy aids it, is a principle too familiar and well.known to need1 authority; and has been expressly affirmed in respect to this very question of a lien of a judgment' by Lord Hardwicke, in. a case., already referred to, 2 Atkyns, 107; and in other cases tó which there may he occasion to. refer. The power of a Court of equity over the lands of a debtor by judgment is the consequence of the right acquired by the creditor to redeem prior incuinbrances. This is the source and fountain of the power; and if the prior mortgages or incumbrances will not permit him to redeem, or if he is not able, to 'redeem without a sale of the lands; he may apply to a Court of equity to compel a redemption; and therefore a sale of the property.' Sugden, 340. ' • .
    By degrees, in the absence of any law or legal principle to sustain them,'the Courts have, extended their power; and commencing with the principle of aiding - and'following the law,, they have arriv.ed at the conclusion, that they may do that which, the.-law could*not do,’ and sell the land. But this has been, riot in a case like thatbefore the' Court, hut in cases as it will be presently shown, foundecLupon obliga- ' tioris -which bound .'the h.eir. But to recur: did the-judgment, in the; case before the Court, give a lieri upon the lands ?-. If it did,-then it is respectfully submitted,-that .the.appellées, inthe-case theyhave made; had no claim to the aid óf a Court of equity; because there was nothing to impede their progress, arid remedy at law. In the case before cited, 2 Atkyns, 107, where the .debtor was living,- Lord Hardwicke decided, that the Court of -Chancery had the power to remove a fraudulent conveyance; it being a principle or equity ju- . risdiction that where fraud- in fact is charged, a Court of equity therefore-has jurisdiction,, because from its more' comprehensive power it can .more -fully try the fraud, although a Court, of law is competent to try it. But havirig done that, its power ceases;.aridihe parties must he left to their remedy at law upon the elegif;, and irv ' the case of Wilders, vs. - Chambliss, administratrix, ánd heirs; 0 . Munford,432, the Court of appeals Of-Virginia affirmed .a deTcree of Chancellor Taylor, disitrissing the bill of the judgment creditor Qpon the ground that the elegitwas the remedy; it appearing in that case that the profits of the land would in a reasonable time discharge the debt. Here is a decision upon the point when the debtor was alive, and another when the debtor was dead, concurring in both cases; the claim resting upon an obligation which bound the heirs.. It will he shown presently that the latest Virginia decisions concur with that last cited; at least in this, that the land should not be sold when the rents and profits will in a reasonable time discharge the debt:
    Looking to the reason of the thing, it .may well be asked upon what ground it is that a Court of equity should deny itself the power to sell the land when the debtor lives; and yet.as soon as he dies and his children have become, more helpless, and therefore entitled to the care of the Court; it shall .assúme the power tp sell the lands to satisfy the very same debt. Theré is no reason for it, unless in a case in which the obligation binds the heir; and- then, as the heir is chargeable to the whole extent of assets descended, the Court of equity may, without much stretching its power, order the sale.' It is believed that the power has resulted from confounding the powerto redeem prior.incumbrances,.and the practice in marshalling assets and securities, whereby an entirely new power has been made; not justified by the first head, as"the authorities cited show, and not justified by the latter, as will be seen by consulting any wo:-k upon the subject, as the latest and most luminous of which, Story’s Equity, titles Marshalling Assets, and Marshalling Securities,'is referred to.- The practice of selling when the obligation binds the heirs, if it be esta-, híished, cannot furnish authority fe» selling' in a case like that before the Court, because the-judgment does not bind the heir. Stileman vs. Ashdown, 2 Atkyns, 477. Nor can any authority be derived from the other heads; because-in those cases there must be two securities, and two funds. Here there was but one fund and one security, and nothing therefore to marshall, i. e.- to array and arrange, so as to promote justice and equity.
    .. It is thpught,however, that the Court will- find in most, if not all the cases in which decrees for sales have been made, that the casé came int-o Court under ,the power to redeem, as in Stileman vs. Ashdown, or to marshall, or upon claims binding the heirs in some form. In this case not one of these qualities exists. There is nothing to ' tedeem; if there is, the plaintiff does not ask that privilege: there is no fraud- alleged; there is nothing to marshall; and- the claim was originally on a simple contract,'and therefore did not .-bind' the heirs; and the judgment does not bind the heirs. The case then presents -these peculiarities. One man has a siniple contract claim against another: he sues him, and obtains judgment. If he pleases he. may • extend his lands, but he cannot sell them: he extends them, and the debtor dies, and by that event a power is conferred to sell the land, although the reason against selling may he and generally is stronger after the. death of the ancestor than--before. To’-the heir it xxrayrbe a matter of great importance to.b.e enabled to, pay ghe -debt, off by the gradual process, oriat least to'keep ft out of -the market, wherii it. may be sacrificed af á sheriff’s sale; until hs.can acquire the means to prevent the sacrifice. How is it that the death of the father shall confer the • power to do that which could not he done while thé father lived? Why should' it bé so ? If-it be said that here the elegit was not actually levied in'the lifetime of the debtor 5 that, only weakens, if it affects'at all the case. Then the ease stands ' thus,: the land descend? to the heir, and comes into his possession; the creditor pursues with a elaim which, does not hind .the heir, and which if carried to its utmost extreme, could only take possession for a limited timp of a moiety of the, land; the heir .is. ready to yield the land to the whole extent to which it was liable in the lifetime of the ancestor, and yet he is to he fold this shall not be: he must pay immediately .the debt for which he is-not hound, and for the satisihction of'which not even, the other moiety of the land could he touched; for which in the lifetime of his ancestor no foot of the land-could have been, sold, or thé entire moiety must'be sold. Whence the right thus.to ahridge.the right of the héir? T¿et it be supposed that the profits of the land would in three -years pay off the debt, and the property is of that, description .which at a .forcea sale is almost invariably sacrificed, and such is-emphatically coal, property; whence is derived the power to. doom him to this sacrifice, and put his property into the possession of his creditor, perhaps at half its'value ? Where is .the -justice and equity of the proceeding ?'; Many other- illustrations might be given, but the limits of a Written argument' forbid it.
    Thus far the question as affecting the heir has been discussed; but the case is really against a fair purchaser, who is liable only, and. can be proceeded against as ierre tenant. Is' there a case in which the pówer /of thé creditor has been enlarged as against him? ■ Upon what-ground is it that, he shall be doomed' to a sacrifice of that'property for which he has fairly paid,;'and which, in. the handsof the man from whom he purchased'it, would not have been liable to such sacrifice? Is it not enough, in-such a.case,.that, ths creditor-may pay himself, by the.use of the property? With.him-there is no privity, no liability, not strictly legal; the purchase of the land may have deprived him of the means to redeem; and it may be ■ that the land will soon pay the debt. Could his land have been sold in the lifetime of the vendor? Clearly not, as it<could not be sold in thé hands of the vendee. .How. can the subsequent death' of the vendor So- operate upon the vendee, as --to .make that property liable to sale after-the death,-which was not" liable before ? There can be no pretext of redeeming, nor of marshalling either assets or securities; for the land, at the death of. the vendor was «0 Dart of his estate. No reason is seen, and ho authority is .known, for it, in a case like the present*.
    III. If the appellees had a right .to come nvfo‘ a Court of equity, it was because of a valid lien (which is denied) that could not be enforced at law; and,.in that case, they were entitled to an acdount only of the rents and "profits accruing, and the application of them to the. payment of the debt.

      • In Coútts vs. Walker,:2.Leigh’s Reports, 26'8, land was settled to the use of the grantor and his wife while they lived — to pay the wife-an annuity*if she survived; and, at her death, to be divided among the-children of the grantor. The wife survived; and during nér .life judgments were rendered against one of the sons.’ The judgment creditor filed his bill to subject the son’s interest; and the Court of Chancery decreed a sale of it, subject to the rights of the widow, as in this case. The Court of appeals reversed the decree, and- directed an account of profits: deciding that the plaintiff was 'not entitled to a sale, but must be. paid out of the profits.
    In'tjie'case before the Court,, the agreement with Mrs. Burton places the property, as to the debtor,- just where the- settlement in Cpútt’s case did: subject to the annuity, lie was entitled to his share of the profits and the reversion in fee. The case seems to he in point directly; In a later case, Tennant’s heirs vs. Patton, 6 lieigh, 196, the same Court reversed-a decree for sale; and decided, that’ where the rents .and profits would in a .reasonable time pay the debt, it must be paid from them.- And in tlie case of Mann vs. Flynn, recently decided, (the opinion, pronounced by Judge Stanard,) the same Court affirm the case in 6 Leigh. The manuscript opinion is:' now .offered to the Court, by the favour of Mr. Leigh.
    The case of the United ■ States vs. Morrison et al., in this Court, has been reliéd upon. That case was ruled chiefly upon authority of Coleman ,vs. Cocke et al., 6 Randolph. Now, it so happens that in Coleman vs. Cocke, the question was not raised as appears by the' case; and Judge Green, mofcover, expressly so-declares in Blow vs. Maynard, 2 Leigh, 29.

      TV: It is insisted- that the appellees, having made no objection to the deed of trust alth'ough two years elapsed after-it ’was made, and before' it -was acted upon; and taken no step to prevent the sale, are to be presumed to -have acquiesced in it: and by their laches, have lost the right to impeach the sale; especially as nearly five years more'elapsed after the sale before any move was made. The trustee is the agent of the grantor and cestui que trust; and if any wrong has been done,- it has been by their agent; and to him the appellees should look. ■ -
    V. An account of the administration of Reuben Burton’s estate should have been ordered, whereby the appellant might have shown a personal fund adequate to the payment of the debt.
    VI. An account of the rents and,profits of the coal property should hiave been ordered; and the surplus, after paying the annuity, applied to the payment of this debt,-if it was to be paid from the land in any form.
    . VII. Th.e widow and heirs of Daniel Burton should have been parties to. this .suit; the widow at least.
    VIII. The judgment was dead and inoperative when the decree -Was'rendered; and no deeree should have been rendered upon it until it was revived, if it could be. If it could not be, then no decreé could be founded on it

      For the foregoing reasons, it is asked that the decree of the Circuit Court may be reversed, and the bill dismissed; or, if that may ,not be, that it be reversed and modified according to the views, herein submitted.'
    In reply to ‘the argument for the appellees, the counsel for the appellants said; the cases relied upon are' cases binding the heirs; and the question was, what constituted assets under the plea of “ Reins per descent.” In such cases, the heir who inherits a valuable reversion cannot make the plea; the reversion is,assets in his; hands. This is emphatically the case in Tindales vs. Wapre, '4 Eng. Condensed Chancery Report. But, it is 'repeated, that when the right of the creditor depends upon the' power of the elegit, a dry • reversion is not liable, because it cannot be extended. It is believed,, with due ■ submission, that no such case can be'found. How can you extend, at a yearly rent, that which, by the terms of the proposition has no yearly .value ? What would be the condition of the creditor, whose debt was annually wasting away by the-use of a. thing which was not susceptible of use? Who was accounting annually for the profit of that which could not yield profit?
    Mr. Robinson for the appellees.
    In the Court below, the statute of Virginia was relied on which declares that no action of debt shall be brought against any executor, or administrator, upon a judgment obtained against his testator, or intestate, nor shall any scire facias be'issued agaiqst any executor, or administrator-, to revive such judgment after the expiration of five years from the qualification of his executor, or administrator. I R. C. p. .492, § 17.' A single answer-to this objection will suffice. ' The qualification of Reuben Burton’s administrator, was on the 9th of December, 1839. This suit was brought the 15th of September, 1834. It was,.therefore, brought before the'expiration Of five years from the qualification; and the statute does not apply. 'This being the case, it is unnecessary to urge upon the Court the considerations which forbid such a defence in equity by a purchaser under a deed of trust, which mentions the judgment, and acknowledges the debt to be due.
    The judgment remaining in full force, the question thén is, how far it operates as alien upon the real estate of the judgment debtor.
    The writ of elegit. given by the statute of Westm. 2, has .always, been in use in Virginia. Every ■ person recovering any debt, damages, or costs, may sue out this writ to charge a moiety of all. the lands and tenements whereof the debtor was seised at the day of obtaining the judgment, or at any time afterwards. 1 R. C,. 525.
    Some years before-the judgment,1'Daniel‘Burton the father of Reuben Burton died intestate, leaying Sarah Burton, his widow, a.nd the following children.as his heirs, to wit: Thomas, a child by the said Sarah; and .Susan, Mary, Reuben, Rebecca, and William, by a former marriage. ■ Rebecca afterwards died intestátej.and unmarried, leaving her brothers and- sisters as her heirs. As heir? of Daniel Burton his two sons, Reuben and William, were each'entitled to, a sixth part - of his real estate; and as heirs of Rebecca, they were each-entitled to two-ninths of her real estate. Reubén Burton acquired, by purchase the' whole, interest of William; as heir of. Daniel Burton; arid also-as heir-of Rebecca; and in this way, his share of the .real estate of Daniel Burton (taking into account the part of William and the-part of Rebecca) was two-sixths-and four-ninths.of another sixthybeing rather more than two-fifths.
    By the terms of the agreement relied oh in the defénce, the heirs of Daniel Burton were to have during the widow’s life the right of occupying, using, and working the coal pits,-and also the right and power of sinking- shafts, and searching for coals on any part of the tract of land attached thereto, except the yard, houses, and .gardens;' and also the right and privilege of cutting and taking .on any part of the'tract, all necessary timber and wood for the use and management of- the coal pits, opened, or to.be opened,paying to the widow,during her life, a yearly sum of $200 for-hér dower interest. -It has been objected that Reuben Burton’s interest in this part of the subject could not be charged) because, the subject- was not exclusively his-. This objection can present no difficulty. Thé judgment is dearly a lien upon a moiety of all the lands or tenements of which the debtor is seised. The estate in lands or tenements of a joint tenant, or tenant in common, is charged by judgment against such joint tenant, or tenant in common, as much as any other interest in real' estate;" It has long been so settled., -In Viner’s Abr. tit. Execution, let. N.-pl. 25,.'vbl. x. ;p. 549,.it is laid down,'that “if there are two-joint tenants, arid one makes á statute, and- afterwards joins with his companion in a feoffment of the land, the moiety of the land' may be extended upon this statute.” As it may. be extended upon a statute, it may likewise be extended upon a judgment) See Gilbert on Executions, II, 42.

    The question applicable to. the tract generally, with the exception of the interest just mentioned, -is, whether a judgment1 against a debtor who has a reversion in feefexpectanbupon an estate, for life, creates a lien upon such reversion. It was upon this part of the ease that the other side relied principally in the Court below.
    We were told that a rent seek was riot extendible; and from this it was attempted to deduce the conclusion, that a reversion after an estate for life (a dry reversion as it was called) could hot be extended. •
    The case in which it was decided that a rent seek could riot be extended, was that of Walsal vs. Heath; Cro. Eliz. 656. The action was replevin. The avowry was, that J. S. seised of. lands for the life of Sibyl his wife in right of his wife,-the reversion in fee to the baron; he and his feme made .a lease for years, reserving £4 rent iter annum. The baron being indebted by obligation, made the said Sibyl his wife, executrix. The debtor brings debt against her, by the name of Isabel, and recovered; and upon a whit of fieri facias a devastavit was returned, and thereupon an elégit awarded, and the sheriff returned that Isabel had ¿04 rent issuing out of that land, upon a demise made by her and her husband, and delivers the moiety of that rent, and thereupon he avows for the same, and it was thereupon demurred and adjudged ill for three causes. First, because a lease for years by baron and feme, without deed, is void against the feme. Secondly, .the recovery ¿gainst Isabel is void against Sibyl; and the sheriff cannot extend her land. Thirdly,- the sheriff delivering the rent without land, so as there is not any reversion,-it is but a rent seek-; and a bare rent cannot be delivered, ut liberum teñe» mentum.
    This casé does not at all go to show that a reversion in fee is not charged by a judgment.
    It would be very remarkable if the judgment should create no lien upon a reversion, when such reversion is liable to a mere bond creditor of the ancestor. ' For it has iong been adjudged that upon an obligation of the ancestor, binding himself and his heirs, the heir, may be charged in respect, to any. estate of freehold which has descended upon him. A reversion in fee, expectant oil a term of years, is regarded as assets in the hands of the heir.;. although the term be to continue five hundred' years; as was the case in Smith vs. Angelí, 2 Ld. Raym. 733. A reversion in fee expectant on an estate for life, is also assets; notwithstanding the life estate-be still continuing. - Rooke vs. Clealand, 1 Lutw. 303, 1 .Ld. Raym. 53. Vin. Abr. tit. -Execution, M. pi. 7. 15. If the party seised of the reversion, devise it for any other purpose than the payment of debts, the.devise is void as to specialty creditors; and the creditor may maintain an action on the specialty against the devisees as well as the heirs, and charge them in respect to the reversion. Stat. of W. & M. enacted in Virginia in 1789; 1 R. C. -391, 392. And if any heir or devisee, so liable, shall before action brought alien the estate descended to him,'he will be liable for the value of the land so aliened. Ibid.
    • The inquiry- then presents itself, whether a. creditor who has obtained a judgment against a debtor in his life time, is worse off, in respect to this matter, than a creditor by specialty merely.
    In the ease of Coke vs. Barnsley, Brownl. 234, where the question was, whether land held in ancient demesne was extendible, the1 judges held that-'it was: saying, “ for otherwise, if it should not be extendible, there would ,be a failure of justice, which the law doth not allow of.” There would be an equal failure of justice, if a reversion in fee-were not liable to a judgment creditor. It is well settled that if a man lease for a year, rendéríng rent, the reversion may be extended upon an elégit during the'lease, and the tenant by elegit shall have a moiety of the rent. Sir Thomas Campbell’s case, l Rolle’s Abr. 8.94, pi. 5. It is also settled, that if there té tenant for life, the reversion in fee, and- he in- reversion acknowledges a stattíte, and then grants the reversion,, and then tenant for life'dies, this land shall be extended upon the statute. • 2 Rolle’s Abr. part 2, ■ p. 473, let. Q. This proves, that a statute creates á lien upon a reversion expectant upon an estate for life, though the life estate'be Still continuing.
    The lien upon a reversion created by a judgment, is eqúal to .that of a statute. It was so decided by Lord Hárdwicke, in Gilford vs. Barber, 4 Yin. Abr. tit. Charge, letter A, pi. 17, p. 451. , There the -judgment debtor had a reversion' after, ah estate tail. The estate tail having terminated, and the reversion coming into possession of the heir of the judgment debtor, the question was, whether the. judgment created a lien upon it. The chancellor held that a person having an estate of inheritance subject to intermediate estates, might grant, charge, or encumber the reversion as he should see fit; and might encumber it by judgment as well'as in any other manner.
    The whole law upon the subject is laid, down with great clearness in Gilbert on Executions, 38, 39. He says,'ííThé jxidgment' binds not only the lands and tenements of which the. defendant is actually seised, but also the reversions ondeases for lives as well as for years. For though the words of-the elegit are,£ a moiety of-all the lands and tenements of which .the said A. was seized,’ &c., yet the intent of the writ extends to whatever lands and tenements were actually-Vested in the. defendant; because the statute is a moiety of the lands, which -extends to reversions, which are comprised under the name of lands, since they are. lands returning to the defendant when the particular estate ceases;'-and, therefore, though this was formerly disputed, the latter resolutiofis have settled the law to bé ás we have already mentioned,”
    The law is laid-down in the same wiay by Sir-Henry Gwillim, in a volume, which he prepared before his death, of the last edition of Bacon’s Abridgment. See tit. Execution, let. C.vol. iii. p. 381, of Lond. ed. of 1832. And in the late case of Harris vs'. Pugh, 4 Bing. 335, 13 Eng; Com. -Law Rep. 459, it is expressly stated by the Court; that if_the estate of the debtor in the reversion had been a legal, instead of an equitable estate, the judgment would have bound it, and overreached the subsequent conveyance.
    The judgment being alien upon the property, that lien- clearly operates against the alienees of the debtor-. United States, vs. Morrison, &c. 4 Peters, 124; Watts vs. Kinney, &c. 3-, Leigh, 272;
    If there were any difficulty in taking the reversion'of the- debtor iu execution at law, it- would, upon the general principles of a Court of equity, still be bound.in equity: and the lien enforced against the debtor’s alienees. Goutts ,vs. Walker, 2 Leigh, '268.
    1 In this case, thé reason .for enforcing the lien against'the aliened is stronger than usual;,for here,the property subject to the lien was purchased with full knowledge of the judgment, and. knowledge also-that the' debt was. still, .due..

      The trustees in the deed of trust could, certainly, not object to the Court’s decreeing a sale of the' property subject to the lien. For 'they, by the terms of the deed of trust were to sell at all’ events. See Mutual Ass; Society.ys. Stanard, &c. 4 Munf. 538. ■ Neither can any one daiming under the {rust make that objection. It might indefed 'have been seriously contended, upon the authority of the case Just cited, that the decree should have been for the sale of the whole property, instead of a moiety ’ merely. But such a decree would no doubt have been objected to on the other side, and the objection has' been carefully avoided. The decree in this.case merely directs a sale of the landj so far as the creditor has. a lien upon it.
    That equity will, at the suit of the creditor, aft,er the death of the judgment debtor, accelerate the payment by directing'a sale of the moiety; and not compel the judgment creditor to wait till he has been paid oiit of the rent's and profits, was' settled in Stiléman m Ashdown, 2 Atk. 60S, Amb. 13, and has been acted on in a great number of cases. Galfon. vs. Hancock, 2 Atk. 433. O’Gorman vs. Comyn, 2 Sch. & Lef. 137. O’Fallon vs. Dillon, ibid. 13. Countess of Warwick vs. Edwards, l.Dick. 51... In Virginia the principle'has been recognised in Blow vs. Maynard, 2 Leigh, 57. 66.
    No portion .of a-debtor’s real estate is exonerated from his creditors, or exempted from being sold, because it yields-nothing annually. ,
    •In Robinson, &c. vs. Tong, 2 Str. 87?. 3 P. Wms.. 401, where the question related to an adVowson which had descended upon the heir, to wit, a right of-presentation to a church; and the objection was taken that it yielded nothing; it was answered that it might be made available by sale. Lord Hardwicke decided the same way in Westfaling vs. Wes.tfaling.;3.Atk. 460. Not only was the advowson decided-to be real asgeis, and directed to.be sold; but it was decreed that the money should be paid to judgment creditors according ■ to the priority of their júdgmehts, and then equally to bond creditors. Tong, &c. vs, Robinson, 1 Brown’s Par. Cas. p. 114 of Tomlin’s edition. . ,
    In the case of a reversion,.where it is impracticable to obtain a discharge of the debt by any application of rents and profits-; and where the only way of making the reversion available in any reasonable time is by- sale; there is every reason for decreeing a sale. This subject has been fully considered, and the propriety of a sale .decided in Tyndale vs. Warre, Jacob’s■ Reports, 212. 4 Cond. Eng. Ch. Rep. 100.
   Mr. Justice Barbour

delivered the opinion of the Court. .

This is an .appeal from a decree of the Circuit Court, for the fifth circuit, and eastern district of Virginia.

•The case was this:

In the. month of June, 1827, §mith and Kennedy obtained a judgment in the Circuit Court .against Reuben. Burton, for $1348 75, with interest from the' 14th October, 1823, and costs. On this judgment, an elegit was issued on.the 31st of December, 1827. On the 12th of August, in the same' year, Reuben Burton, by deed cpnveyedJiis-real estate to certain trustees, in trust, to sell the same for the benefit of his creditors; amongst many Other debts enumerated in the deed, the - judgment - already mentioned, recovered by Smith and Kennedy, was included.

These last mentioned creditors, the appellees, never assented to, or accepted any thing'under the Crust deegl. -Burton having died, the only trustee who accepted the trust, on the 21st of. December, 182 9,-sold, under the deed, all the estate, both réal and personal conveyed by it; and at that sale, Sarah Burton by her agent, purchased,,at the price of $1000, the interest of Reuben Burton, that is, two-fifth parts in a certain ¡tract of'land called Springfield,-supposed to contain about .five hundred acres, and also his • interest in certain coal pits on the same tract. The character .of Reuben Burton's interest in the Springfield tract.of land,"as-appears- from the record, was that of a reversion in fee, after an estate for life. And the character of . his .interest in the coal pits,, as appears from an agreement in the record, was this-The hens of .Daniel Burton, of whom Reuben was one, were to- have, during' the widow’s life,, the right of Occupying, using, and working the coal pits, and the right and power of. sinking shafts, arid searching for coal orf any part of the land, except the yard, .&c.; paying to the widow, during her life, the yearly, sum of @200, for her dower interest. . The same agreement will show his interest in a'mineral spring, also -included in the decree.

After the death of-Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, .in September, 1834, filed their bill’, to enforce the lien created by their judgment; making, amongst others, Sarah Burton a defendant, as purchaser of the interest of Reuben Bürton, before described, in the Springfield tract of land; and coal pits.

She answered, saying that the property conveyed to' her was not purchased for her own benefit, but for the benefit of her son, Thomas .O’. Burton, the appellant. She insisted, in her ahswer, that the appellees had no right to enforce their' judgment, as inore than five years had-elapsed since the death of Reuben Burton; she denied that the judgment created any lien on’ the property purchased by her which was valid against, her; she insisted that the appellees weij.e entitled, to no "relief in equity; and that- at ,aU events, a sale should nOt-bNdecreed.

An amended, bill was thereupon filed, making Thomas 0.-Burton a defendant. He filed an answer; insisting upon the grounds taken by Sarah Burton.

The cause coming on to be heard, the Court held the reversionary interest of Reuben Burton in. the Springfield tract of land, and his interest in the right'of occupying and working the coal pits thereon-, and alsojhis-interest in the mineral spring thereon, with the twentyfiveacreo of land adjoining thereto, liable to the appellees’ judgment and decreed a moiety o£ Reuben Burton’s interest to be sold. From that decree this appeal is taken.

Upon this state of facts, two questions-arise: 1st. Whether, the judgment created a lien on the reversionary interest of Reuben Burton in -the land, in question ? And, 2d. Whether it .was cpmpetent to the Court to decree a sale of his interest, with' a view to accelerate the payment of the debt;~ or whether the appellees should have been left to such remedy as they had at law ?

As to the first.point. In relation to Muds of which the debtor has the.actual seisin,-there is no doubt but that the judgment creates a lien. Upon this subject, this Court said', in the case- .of the United States vs. Morrison and others,- 4 Peters, 124, there is- .no statute in Virginia which expressly makes a judgment, a lien upon the lands of the debtor. As in' England, the lien is the consequence of a right to take out an ele'git. During the existence of this right, the lien is universally acknowledged. That right unquestionably existed in this case ;• because an élegit did actually, issue within the year after the judgment was rendered.‘' There would then be no sort of difficulty upon the question of a lien, if the debtor had had actual seisin of the land; but the difficulty is suggested that his interest was reversionary only. Let us inquire whether this interposes any obstacle. . All the authorities, ancient ánd modern, agree in this proposition that a reversion after an estate for life is assets; or as.some of the books express it, quasi assets, in thfe hands of the heir, in regard to the bond of his ancestpr, binding heirs; and that in such case, the plab'tiff may take judgment of it, quando accident. Dyer, 373. Carthew, 129. 1 Lord Ray. 53. Chitty on Descents, 336. In Dyer, ubi supra, the form of'the judgment in such case is given. It is, “ that he should recover the debt and damages of the aforesaid reversion, to be levied when'it shall fall in.” And it is added, that a special writ shall issue to extend the whole. The doctrine upon this subject is laid down very' clearly by the Master of the Rolls, in the case of Tyndale vs. Warre, 3 Jacob. 217, 218. There are,‘says he, three cases of reversions; if it be a reversion-dependant upon a term of years, the law does not consider the term as any thing, and judgment is given against the heirs, if he plead reins per descent. But. if the creditor take .out an elegit, he is stopped by the term, which is a good defence for the lessee in ejectment, and so there is a.cesset executio during the term,. If it be a reversion- after an estate for life, the heir must plead specially, stating that he has no assets except this, and setting forth what it is;. the creditor may then take judgment quando -accident. In the casé of a reversion after an estate tail, the authorities .say, that the heir may plead, generally, reins per descent, distinguishing this from the plea in the case of. a reversion after an estate for life, ‘ The plaintiff may. then reply, that there is this reversion descended to the defendant; and he may then have a judgment quando acciderit, the same as in the case of a reversion after an estate for life

. Now, upon principle, it would seem to be clear, that- whatever estate descended to the heir, which was liable as assets to the bond, debt of the ancestor, must be bound by a judgment obtained against the ancestor in his lifetime.

But tins is not left-to rest upon deductions frbm general principles, or analogy to the case of assets' descended to the heir. Whatever may. be the doctrine as to reversions after estates tail, about which there -has been some doubt, as appears from the case before cited, from Jacob’s Reports; there is a current'of authority going to prove that a reversion- after ah estate .for life, is- bound by a judgment against the ancestor from whom it immediately descends. -

The statute of Virginia giving to a party.the -right, at his election, to have an elegit, is almost, a transcript of. the statute of Westminster the second. The writ itself commands the officer to deliver to the plaintiff a moiety of. all the. .lands and tenements, whereof the debtor, at the time of obtaining the judgment was seised, or at any time afterwards.' ■ -

Lands and tenements, then, are the subject on which the writ is .to operate.

Now; in Comyn’s Digest, title Grant, E. '2, it is • said, that by grant of- ah lands and tenements, a reversion passes;. In the same book, title Estate, B. 12, it-is said: If a man grant the-land itself the reversion passes. So in Moore’s Reports, 36, a -reversion is said to be a tenement.- Thus it appears that a.-reversion falls' within each of the terms, lands, and tenements. But the party must have been seised at the time of obtaining the judgment, or after-wards. ' • \

- Now. let us see what is meant by the .seisin spoken of 'in the statute. And-the authorities áre clear that it is not confined to actual corporeal, possession. In Gilbert on Executions, pages 38 and 39, it is said, that the 'judgment-binds not only" jthe lands and tenements of which thé defendant" is actually seised, but also- the reversions on leases for lives,, as well as for years; for although the words of the elegit are, that without delay yoii cause to bé delivered a moiety of all the lands, and tenements-of which the aforesaid B. was seised;' &c., yet the intent of the writ .extends to whatever lands; and tenements were actually vested in the defendant ; because the statute is, a moiety of the land, which extends to reversions, which are comprised under the name lands, since they áre lands returning to the defendant when the particular estate ceases.

So in 2 Williams’ Saun. 68, it is said:' Judgment binds not only lands of which defendant is actually seised, but' also reversion's on leases for lives or years; and, therefore, á moiety of a reversion may ■be extended, and plaintiff will have a moiety of the rent So in Chitty on Descents, 338, it is said, That if judgment be bad in the debtor’s lifetime, it will bind the property,-though no execution be taken out till the property descends to others. Nay, in case of a judgment,"it is said to bind, even wheré it is against a person from Whom the estate does not immediately descend, as if it. were against a remainderman o,r reversioner; whereas, the contrary would be the case of a bond on which no judgment had been rendered in the,_ 'debtor’s lifetime, who stood in the same relation. •

; The author last cited, in page 54, quoting Watkins on Descents, 40, 41., Speaking of the subject of seisin of reversions, remarks, that the confusion seems'to have, been created by the different meanings which have been attached to the word “ seisin;” by being used in a general sense when it should properly have been confined in its acceptation ; or by- being confined when it should have been taken in a general sense. And in pages 53, 54, he thus sums up the doctrine. Wé must here remember that the expressions' or terms of a seisin in law and a seisin in deed, refer- qnly to' the.present and actual'corporeal possession of the premisés; and not to the fixture of an interest which is to come into actual enjoyment in some future event: and -here the word'“seisin” is .used in its strict sense; and though we frequently Use the term “seisin” of a remainder or reversion expectant upon a freehold,' yet this signifies no more than that- the", property in them is fixed in thé owner,, and that such owner, is placéd in the tenancy^ The particular éstates, and those expectant upon them, form in' law only one estate; and the delivery of possession to the person taking first extends to all. All therefore may be said to be seised, all .being placed in the tenáncy, and the pro* ■ perty Peing thus fixed in all. It is upon these, principles tháf the authorities lay down the. doctrine, that a judgment binds a reversion after an estate for"life. ■

We are therefore satisfied that the judgment of the appellees bound the reversionary interest in the land in question; and as to the other property embraced in th'e decree, there is no room for doubt or difficulty.- And then the question is,- whether the Court ought to have decreed a,sale, with a view to accelerate the payment of the debt; or whether the appellees. should . have been left to such remedy as they had at law ? Upon the subject of the powér of a Court of equity in this respect, the authorities are decisive. More than a cen■tury ago, in the case, of Robinson vs. Tong, 3 Viner’s Abr. Assets A, pl. 28, p. 145, an advowson was decreed-to be sold, at the instance bf creditors, as. assets descended; and the decree was affirmed in the House of Lords.- .That is supposed to have been the case npt of judgment,, but bond creditors. In Stileman vs. Ashdown, 2 Atk. 607, Lord Hardwicke decreed a sale of a moiety of the land to satisfy a judgment creditor. He oonfiiie'd the decree to. a moiety j fiecause the judgment .only Pairad a moiety at law. On that occasion he said, that whilst equity could not change the -rights of the parties, It might accelerate, the payment by directing the salé bf a moiety, and not let. the creditor, wait until he was paid out of the rents and profits. Thé principle was asserted by Lord Redesdale in 2 Sch." and L,ef. 138, and in the same book, 13; and such he stated to be the settled doctriné in.Ireland. .In the first of these cases he said: “ Although this-.Court has been in'the habit of selling to pay judgment,, debts, where it was ascertained, that they "Were legal liens on-the land, the foundation of that was the .legal right. The only equity the creditor had, was-to render-his remedy more éfféctual by getting a sale, instead of levying his debt out of rents and profits, Which was the- only execution the common law gave.

. These cases ate cited and relied upon, and the doctrine of them approved, in 2 Leigh, 30; and in page 58 of that volume, Judge Green says; “This principle, so far as I am informed, has been uniformly practised on in Virginia, in the cases of heirs bound by the obligations, of their ancestors. .'And although I cannot see clearly the foundation of this equity to sell, where the'law only-authorizes . an extent, or a personal judgment, or decree against thé heir for the value of the assets descended, whether aliened by him or not, (see the statute of fraudulent devises;) yet Lthink we are bound by the practice founded oh these precedents,- so long acquiesced in.” -In 6 Leigh, 196, which was a suit in equity brought by creditors to marshal assets, the same authorities were again cited with approbation, and the same doctrine reasserted by the judges, . in .their reasoning upon the case: In pages 219, 220,"of'this latter case, Judge - Carr went into a review of English cases, which he said seemed to him to establish beyond question, the regular and long established course there, of selling-the lands of deceased persons to pay their- debts, binding the land, or to marshal their assets: and he added!, that it struck him as a novelty when, in the course of the ar- - gument of the case, he heard a doubt suggested of the power of the Court. to decree a sale in such cases: In the: ease of Tyndale vs. Warre, 3 Jacob, 212, this subject was extensively considered by Sir Thomas Plumer, Master of th.e Rolls; who held, in that case, a reversion expectant upon an estate for life, and even upon estates tail, limited to unborn children, to be assets for the payment of specialty ■debts; and accordingly he'decreed it to be‘sold for. that purpose. This Jast has a peculiar analogy to, and bearing upon the case before us; because it sustains in the fullest and most decisive manner both the grounds oh which the decree of the Circuit Court rests: that is, it proves first,-.that a reversion after am estate for life, or even after estates tail limited to unborn children,is assets, liable to the specialty debt, and,"of ' necessary-consequence, to the judgment of the ancestor from whom it immediately descends; and, secondly, that a Court of equity will decree such a reversion to be sold, in order to accelerate the payment of the debt. Thé liability of a reversion after a life .estate to be sold, was at once conceded by the counsel for the heir:. their effoi t was to maintain that thé reversion in that case could not be sold, because, it was after an estate tail. It was strongly said by the' Master of the Rolls in that case, that the reversion was a part, of the real, estate .of the ancestor; and according to all general principles, every part of the real estate of the debtor, except copyhold, is considered as applicable to the payment of his specialty debts. There is knottier part .of-the reasoning of the Master of the Rolls, which, has a most cogent application to this. It having being urged'that a sale ought not to be decreed, out of consideration to the heir, that'-a. higher price might be obtained; he said: “But I think that such considerations ought not to weigh, for the question is, to whom does the property belong ? It -is not the habit of the. Court to consider the interest of the heir, when opposed to that of the creditors. They ought to have the fullest remedy. And upon what principle can the Court refuse to give them the benefit of: a- .sale, because another person, whose interest is secondary, and entirely subject to theirs, may be benefited by delay?” So far from its being proper for a Court to hesitate about decreeing the sale of an interest because'it is reversionary, we think that the character ,of the interest affords a stronger reason. For in regard to property in present' actual possession, the elegit,.although a tardy remedy in its operations, yet is in some degree an effective rémedy; inasmuch as the creditor will by that means'annually receive something towards his debt: whereas in the case of a dry reversion, as the one in the present case is, if the outstanding life estate should continue, during half a-century, the creditor, might look on in hopeless despondency, without the possibility of receiving one cent from that source, except, through the interposition of a Court of equity, in decreeing a sale. . -Now if the acceleration Of a tardy remedy be cause enough to justify the. helping hand of equity, a fortiori., it ought tó be extended to him who during the life of the tenant for. life is without any remedy at all. . As to the objection, that the judgment did not bind the land in the hands of the appellant because he was a-purchaser, we consider it wholly untenablé,We have already said that the judgment created a lien: now it is of the very nature and essence .of a lien, that no matter into whose hands the property goes, it passes cum onere; if this were not the case it would cease to be a lien.- If this proposition stood in need of authority to support it, we^find it abundantly in' the case of The United States vs. Morrison and others, 4 Peters, 124. In that case the judgment of the United States rendered in 1822, was held to , overreach several deeds of'trust executed in 1823'; although the', United- States having issued a fieri facias, whilst that execution was in the marshal’s hands, the agent of 'the treasury at the instance of the defendants, instructed the marshal to forbear levying it on condition of the defendants’, paying the costs; and accordingly the marshal did not make a levy, but made a return within the year 1822,. thát all further proceedings were suspended in pursuance of said instructions; and that suspension was continued until the year 1825.

A very strong application of this' doctrine was made in the case of the Mutual Assurance Society vs. Stanard et al., 4 Munf. 539. In that case a .deed of trust, bearing date 28th April, 1808, was held to be overreached by a judgment rendered on - the 6th of i May; the Court applying the legal fiction, that the judgment m contemplation of law; related back to the commencement of the term, which was before the execution of the deed.

A still, stronger application of the doctrine was made by the same Court, in the case pf Coutts vs. Walker, 2 Leigh, 268. In that case the Court held, that a judgment creditor had a lien in equity upon the equitable estate of the debtor, in like manner as he had a lien- in law upon his legal estate; and a .deed'of trust haying been executed by the debtor conveying, his. equitable estate to a trustee, and' that too-for the- benefit of .creditors between the ..commencement of the term,’ and the day on -which the judgment vtas obtained j the same relation of the judgments to the first day of the-term, as in the case previously cited, was held to exist; and thus the trust deed was overreáched by the judgment. ,

It is argued that the judgment in this case was barred by the act of limitations of Virginia. . That act provides, that no action of debt shall be brought against any executor or administrator upon a judgment obtained against his testator, or intestate, nor shall, any scire facias be- issued against any executor; or administrator, to revive such judgmént, after the expiration of five yéárs; from the. qualifi- ■ cation of his exéctftor, of administrator; The- facts in the' record furnish a decisive answer to this argument. . It appears -from;them, that the administration on Reubep Burton’s'estate was granted on the "9th of December, 1829; and this suit- was brought on the ,15th of September, 18.34.. So that five years had , not elapsed from the time of the qualification of the administrator.

This, view renders it unnecessary to examine whether the appellees-would .'not have, been' within the Saving of the- statute, as contended for by, their counsel. . . .

'Furthermore,it is objected that there should have been-amaccount taken of the administration of Reuben Burton’s personal estate; Without stopping to inquire whether -thát would he necessary in. -any case,’where the suit is brought 'merely to enforce a legal fieri-; it is a sufficient answer to this, objection to say — that there is- undánt evidence in the record, that there, was no p.ersorial- estate: nothing, .therefore, could have béen more Unnecessary or unprofitable than to have ordered an account to. he taken. .

The last objection is, that'an account should have been ordered of the rents, and profits of'the'Coal property.

Here, too, the record furnishes a satisfactory answer. Assuming, for the purpose of meeting this objection, that 'by analogy to the case of marshaling assets, a Court of equity would not decree á sale of real éstate to satisfy a judgment where the rents and profits would discharge it in a reason'ablé time, as was held by the, Court in-the c,ase of Tennent’s heirs vs. Patton, 2 Leigh, 196; yet the facts of this case utterly repel the application of that principle to it. In that' case, it .will be seen that the debts of the ancestor were said by one of the judges to amomit to $820, and the annual value of the land was ascertained to be $.400.

In that case, therefore, the debt would be satisfied bv the rents and profits in a short time, ' In tHs case the facts are these. There was an outstanding life estate in all the Springfield tract of land, except the coal pits and the -mineral spring. Reuben Burton s interest in the coal pits was two-fifths, in .the privilege of working them during the lifetime of the tenant-for life; she receiving, annually two hundred dollars for the whole. Reuben Burton’s real Interest, thert^ is only two-fifths of any surplus which might remain, after deduct-; ing two-fifths of the annual rent to he paid. But the parties themselves seem to have considered $200 perannum as the fuÜ value of the whole privilege- of working them. ■ If the agreement of the parties were to be taken as the; standard of the annual v'alue, his interest wouild really be worth nothing; -because he would have to. pay precisely the same proportion of the rent which he received of the profits ;,; and it must .be assumed, that they were worth more than the parties fixed as the value, in- order to make any surplus at all. But, at all events, there is nothing in the case to justify the heliéf that there would, he any surplus that would .discharge the judgment in a reasonable- time, or/even in a long time: for, at the date of the decree, the whole, debt, including principal, interest, and costs, amounted to about $2,500; and the principal being $i;348 75 cents, there would he an annually accruing interest of about$80, besides the annual payment of two-fifths of the $200'for rent, which would he $80 .more. Thus it. will appear that his interest of two-fifths must produce $160 Annually, in order even, to prevent the debt from .being increased.. To allow $160 for his two-fifths would require .that the whole should be worth annually $400, which is. preeisely double, the sum at which the .parties fixed the rent.

This then seems to us to - he, emphatically, a case in which the established principles of equity justify the sale of the property, with .a view to' accelerate the payment of a debt due to a judgment creditor.

Iñ every respect in which we have viewed the case, we. think that the decree of'the'Circuit Gourt is correct.; and it is-therefore affirmed, with costs. .

This pause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Virginia, and was argued by counsel. On consideration whereof, it is.adjudged and decreed by this Court that the decree of the said Circuit- Court in this cause he, and the same, is hereby, affirmed with costs.