Opinion
02-28-1824
Chamberlayne and Others v. Temple
Wickham, for the appellants. Leigh, for the appellee.
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This was an appeal from the Richmond Chancery Court.
William Temple filed his bill, stating, that on the 19th day of April, 1806, he recovered a judgment against Edward P. Chamberlayne, administrator of Byrd Chamberlayne, deceased, for the sum of 5771. 15s. and $ 73 79, damages; that the said E. P. Chamberlayne died, without having paid any part of the said judgment, and administration de bonis non of the estate of the said Byrd Chamberlayne, deceased, was granted to W. B. Chamberlayne; to whom also was committed the administration of Edward P. Chamberlayne, deceased: that E. P. Chamberlayne, in his life-time, had not settled up his account of administration on the said Byrd Chamberlayne's estate; nor has he, as the administrator de bonis non of the said E. P. Chamberlayne, ever settled up the estate of his intestate: that the said Byrd Chamberlayne, in his life-time, and at the time of contracting the debt due the complainant, was possessed of very considerable estate, real and personal; and the complainant, having a claim upon him, on account of certain wheat lost by negligence on board of his (the said B. Chamberlayne's) vessel; and, the complainant believes, after a suit had been instituted against him, in order to prevent the payment of the same, and to cover it from execution, in fraud of the complainant, conveyed for no other consideration than natural love and affection, on the 10th day of December, 1793, to his daughter Evelyn, now the wife of Robert Pollard, jun., two negro girls called Mahala and Dolly; and, on the 1st day of January, 1798, he conveyed by five deeds pole, for the same consideration, and five shillings, expressed in each, to his son Otway Byrd, two slaves; to his son Thomas Delaware, two other slaves; and to his sons John Dandridge and William Dandridge, and his daughter Mary Eleanor, a like number of slaves, each; and, on the 24th of February, 1799, for the like consideration, he conveyed by another deed pole, to the said Evelyn Byrd, his daughter, another slave, named Sally; and, by another deed pole, of the same date, he, for a like consideration, conveyed to his son Spotswood Dandridge, a negro boy and girl: that the said Byrd Chamberlayne continued in the quiet and uninterrupted possession of the said slaves, from the date of the said several deeds, till the time of his death, which happened in the year when he and his son Otway B. Chamberlayne were both shipwrecked: that they died intestate, and administration was granted on the father's estate, as before mentioned; but, no administration has been taken on the estate of the son: that, the father, if he survived his son, was his sole distributee, and if the son survived, then his brothers and sisters above named, were his distributees; the complainant therefore prayed, that William B. Chamberlayne might be made a defendant, both in his character of administrator of E. P. Chamberlayne, deceased, and in that of administrator de bonis non of Byrd Chamberlayne, deceased: that the children above mentioned of Byrd Chamberlayne might also be made defendants: that the said W. B. Chamberlayne might be decreed to settle the administration account of the said E. P. Chamberlayne, deceased, upon the estate of Byrd Chamberlayne, and his own administration upon the same estate: that he might be decreed to pay to the complainant the balance in his hands, if any, in satisfaction of his judgment aforesaid; and, in case the same should be insufficient, that the slaves conveyed by the said deeds, and the increase of the females, might be sold to satisfy the same, or so many thereof as may be necessary.
The answer of W. B. Chamberlayne admits, that he is the administrator of E. P. Chamberlayne, deceased, and the administrator de bonis non of the estate of Byrd Chamberlayne, deceased: that, it is untrue, that E. P. Chamberlayne died without having settled the administration account of the estate of Byrd Chamberlayne: that, by accounts settled by commissioners regularly appointed by King William Court, it will appear, (which settlement took place before the judgment of the complainant, mentioned in his bill,) that there remained in the hands of the said E. P. Chamberlayne, due to the estate, the sum of 621. 17s. 8 3/4d.: that it will be unnecessary to have a new settlement, unless error on the face of the settlement, or fraud is alledged and proved: that his own administration of the estate of the said Byrd Chamberlayne, unadministered by the said E. P. Chamberlayne, has also been settled by order of the Court of King William county, by which it appears, that the estate of the said Byrd Chamberlayne is indebted to the respondent: that he conceives that he has no right to intermeddle with the negroes, mentioned in the complainant's bill, as he believes that the deeds therein referred to, were executed bona fide, and without any fraudulent intention: that the judgment, referred to in the bill, was against " the goods and chattels of the said Byrd Chamberlayne, in the hands of the defendant (E. P. Chamberlayne,) to be administered, if sufficient thereof hath or shall come to his hands to be administered, after payment of judgments and debts of superior dignity; " by which it will appear, that the respondent was justified in paying, after the date of the said judgment, the sum of $ 599 30, due on bonds, to Richard S. Taylor's representatives, stated in his administration account, & c.
All the children of Byrd Chamberlayne, deceased, who are made defendants in the bill, filed a joint answer, stating, that they know nothing of the claim for wheat, set forth in the bill: that they believe the said claim to have accrued subsequently to the execution of the deeds therein mentioned, with the exception of that to Evelyn B. Chamberlayne, dated the 24th day of February, 1799, and of that to Spotswood D. of the same date: that they are advised, that even if the claim was prior to the deeds, yet, as it sounded in tort, and was to be recompensed in damages, which were never liquidated until the judgment was obtained in April, 1806, it could no more be considered as a debt due by Byrd Chamberlayne, deceased, than a claim to damages for an assault, or any other tortious act committed by him: that, at the time when the said deeds were executed, they believe the said Byrd Chamberlayne to have been perfectly solvent; but that, subsequently, he lost his life, and three vessels at sea, together with large quantities of wheat, and several negroes, which was the cause of the deficiency of assets: that they do not believe that he was actuated by any fraudulent intent, in executing the said deeds: that they admit, that the said Byrd Chamberlayne continued in possession of the slaves conveyed by the deeds, after the execution of the deeds; but, charge that all the said deeds, (with the exception of the first, dated the 10th of December, 1793, to Evelyn B. Chamberlayne, and the two last, dated the 24th of February, 1799, each; the first to the said E. P. Chamberlayne, and the last to Spotswood Chamberlayne,) were duly admitted to record in the Court of King William county; and that the two last, although not proved or acknowledged within eight months from the first execution, yet were both acknowledged by the said Byrd Chamberlayne, on the 24th of February, 1800, nearly five years before the recovery of the judgment set forth in the bill: that, after the death of the said Byrd Chamberlayne, the possession of the said negroes accompanied the deeds, and neither his administrator, nor administrator de bonis non, ever claimed them, or in any manner opposed the possession of the respondents. The last deed to E. P. Chamberlayne was made to supply the loss of one of the slaves conveyed by the former deed, she having died since the execution of the first deed.
Depositions were taken to prove, that in the years 1797 and 1798, Byrd Chamberlayne was considerably indebted: that executions were served upon him, to a large amount: that he postponed the payment of them, as long as possible: that he was very hard run for money, but always made out to pay the executions, in the end: that his estate was supposed to be fully sufficient to pay any debt that he owed; and that he owned two very valuable vessels, which were lost at sea: that he offered to sell a slave that had been conveyed to his daughter Evelyn: that many slaves, with a large quantity of wheat, belonging to Chamberlayne, were lost at the time he perished at sea; and that some of the children, to whom property was conveyed, were of very tender years.
The Court of Chancery ordered accounts to be made up of the administration of E. P. Chamberlayne, on the estate of Byrd Chamberlayne; and, also, of the administration of Byrd Chamberlayne's estate, by W. B. Chamberlayne, administrator de bonis non; together with an account of the administration of the estate of Edward P. Chamberlayne, by W. B. Chamberlayne, his administrator.
The result of these accounts was as follows:
The balance due the estate of
Byrd Chamberlayne, by E. P.
Chamberlayne, the administrator,
is
$ 1,774 42
The balance due W. B.
Chamberlayne, as adminis-
trator de bonis non of the said
Byrd Chamberlayne, after ac-
counting for the balance due
from E. P. Chamberlayne, is
$ 6 60
The balance due W. B. Chamber-
layne, from the estate of E. P.
Chamberlayne, is
$ 1,560 14
The defendants obtained leave to file an amended answer, in which they say, that they positively deny, that the legal possession of the slaves referred to in the bill, after the execution of the deeds above mentioned, remained with, or in the said Byrd Chamberlayne, or that he ever exercised any ownership over them, further than as the natural guardian and next friend of the donees, all of whom, at that time, were infants, and resided with him; and they aver, that the possession of the said slaves accompanied the deeds, as expressed on the face of them, & c. They also alledge, that the verdict in question was obtained by agreement between the plaintiff and defendant, in a suit to which the respondents were not parties or privies, and, therefore, not bound by it.
The Chancellor decreed, that the deeds from Byrd Chamberlayne to his children, were, each and all of them, fraudulent and void as to the creditors of the said Byrd Chamberlayne, deceased, and, consequently, as to the plaintiff. He therefore decreed, that the slaves conveyed by the said deeds, or such of them as are still living, with the increase of the females, and the profits thereof, and the proceeds of the sales of such of them as have been sold by the donees, are, with respect to the creditors of the donor, the said Byrd Chamberlayne, deceased, part of the estate of the said donor; and, as such, liable to the debt due to the plaintiff. The Court therefore decreed, that the said deeds should be set aside, and annulled as fraudulent and void in respect to the plaintiff: that, unless the defendants, on or before the 15th of April next, pay to the plaintiff the debt, with interest till paid, and the costs of the suit in Chancery, the Marshal of the Court shall take possession of the said slaves; and, having advertised the time and place of sale, for four weeks successively, shall sell at public auction, to the highest bidder, for cash, the whole of the said slaves, or so many of them as may be sufficient to pay the debt of the plaintiff; and shall pay the proceeds of such sale to the plaintiff, in whole or in part discharge of the said debt, interest, and costs; reserving liberty to the plaintiff to resort to the Court, to subject the profits of the slaves conveyed by the deeds aforesaid, as well as the proceeds of the slaves that have been sold by the donees, to the payment of his claim.
The defendants appealed to this Court.
Wickham, for the appellants.
Leigh, for the appellee.
For the appellants, it was said: 1. That the conveyances were not void; for, although they were for the benefit of B. Chamberlayne's children, for no other consideration than natural love and affection, yet such conveyances are good, if not made with intent to defraud creditors, and when the donor was not insolvent. A party being merely indebted, will not vacate a conveyance founded on meritorious consideration; he must be insolvent at the time. Newl. on Cont. p. 384; Lush v. Wilkinson, 5 Ves. 384; 3 Bac. tit. Fraud, p. 315; Ibid. p. 320. The evidence proves, that Byrd Chamberlayne was perfectly solvent till the day of his death.
2. That the plaintiff was not entitled to go into equity against the donees, on the ground of a judgment against the administrator. There was no privity between them, and, therefore, the judgment was not evidence against the donees. Phillips on Evidence, 222, 232, 234; Mason v. Peter, 1 Munf. 437.
3. The decree is wrong, even if the plaintiff is entitled to recover on the merits. It is the constant practice of a Court of Equity, to apportion a debt among several defendants, so that each man should bear only his part. But, if any share should prove deficient, the rest will be decreed to make it good. Hopkirk v. Dennis and othersMunf. 326. In this case, the decree was against the donees in solido; so that one may be answerable for the whole debt.
For the appellee, it was said, that the deed of 1793, was the only one made before the cause of action accrued; and the same objection applies to them all. They were all made at a time when the donor was considerably indebted, to his children, without valuable consideration, and some of them infants. These are unequivocal badges of a fraudulent intention.
But, if the deeds had been for valuable consideration, they would be void, because the possession of the property did not accompany the deeds. The deeds were absolute, without any stipulation that the donor should remain in possession. This principle is fully established by the cases of Edwards v. HarbenT. Rep. 587, and Hamilton v. Russel, 1 Cranch, 316.
The objection, that the judgment against the administrator was not admissible evidence against the donees, is not sound. It was not necessary for the plaintiff to establish the debt against the donees. The administrator was the proper person to contest the justice of the plaintiff's claim. The only object of the suit against the donees was, to remove the impediment of the conveyances, not to establish the debt. That it was only necessary to set aside the conveyances in the suit against the donees, and not to establish the debt, is proved by the cases of Pack v. Bathurst, 3 Atk. 269, and Bainton v. WardAtk. 172; and the case of Coleman v. Croker, 1 Ves. jun. 160, proves, that the only ground of equitable jurisdiction is, to remove the obstacle of the deeds. Besides this, the amended answer, calling for proof of the original claim, came too late.
As to the decree being in solido, this was the only proper decree. If the deeds are fraudulent, the whole property is liable, and the plaintiff ought not to be embarrassed in the pursuit of a just claim, by the adjustment of the accounts between the defendants.
It was replied, that the deeds were not void, because they were voluntary, except as to creditors. As, between the parties, they were unquestionably good. Thomas v. Soper, 5 Munf. 28. And as to creditors, they are not void in this case, because the donor was not insolvent. The mere circumstance of his being sued, is no evidence of insolvency.
The possession remaining with the donor, under the circumstances of the present case, was perfectly compatible with the rights of the donees. Braxton v. Gaines, 4 Hen. & Munf. 151.
The judgment was no evidence against the defendants. They were not privies to it; and the executor had no right in the subject. Mason v. Peter, is an authority in point. The plaintiff was not bound to sue the executor first. It is like the case of marshaling assets. But, if he was bound to sue the executor first, the consequence would not follow. The judgment against the executor would only bind the executor; and the donees who were not privies to that judgment, have a right to contest a claim which is to affect their property.
As to the delay in filing the amended answer, it is of no importance; and is sufficiently explained, by the fact, that some of the defendants were infants and femes coverts.
The property is not assets in the hands of the executor, and, therefore, the plaintiff must prove the debt, as well as that the deeds are void. If it be said, that the property is assets, it may be asked, why the plaintiff does not take out his execution at once?
The Court should have decreed contribution among the donees; because, they undoubtedly had a qualified property; and a Court of Equity will not require that one person, having equal right with others, should bear the whole burthen of a claim, to which the rest are equally subject.
OPINION
Green, Judge.
The appellee, claiming to be a creditor of Byrd Chamberlayne, prosecuted in the life-time of the latter, an action at law against him, which abated by the death of the defendant. The former thereafter prosecuted an action for the same cause, against Edward P. Chamberlayne, the administrator of Byrd Chamberlayne; and, having obtained a verdict, a judgment was rendered by consent of the parties, to be levied of the goods and chattels of the intestate, then in the hands, or which might thereafter come to the hands, of the defendant, to be administered, after satisfying thereout all debts of superior dignity and prior judgments. Upon this judgment, no further proceedings were had; nor was any execution taken out thereupon. The plaintiff then filed his bill against the administrator de bonis non of Byrd Chamberlayne, and the appellants, the children of Byrd Chamberlayne, to whom the latter had, in his life-time, conveyed sundry slaves, by several deeds; alledging, that those conveyances were voluntary and fraudulent as to the creditors of the donor, and praying that the slaves should be subjected to the payment of his demand. The defendants, claiming under those deeds, insisted upon their validity; that the plaintiff had no just demand upon Byrd Chamberlayne; and that the judgment at law was obtained by the collusion and fraud of the plaintiff and the administrator. The plaintiff offered no evidence in support of his demand, other than the record and judgment in the suit at law. That record, independent of the verdict and judgment, affords no proof per se of the justice of the plaintiff's demand. The Court of Chancery declared the deeds to be fraudulent and void, and that the property should be surrendered by the defendants, and sold for the satisfaction of the judgment; from which decree, the defendants claiming under the deeds appealed.
It is settled in England, by a series of uniform decisions, that no person, claiming to be a creditor, can impeach, in equity, any conveyance fraudulently made by the debtor of his property, until he has established his demand at law, by obtaining a judgment, and by suing out an execution thereupon, if he seeks satisfaction out of the personal property of his debtor. The cases upon this point are cited, and commented on, by Chancellor Kent, of New York, in 2 Johns. Ch. 144; 2 Johns. Ch. 290; 4 Johns. Ch. 671, 682. If it were otherwise, and any creditor might, in the first instance, question the disposition of his debtor's property in a Court of Equity, it would produce the greatest inconvenience. The debtor, and a donee claiming under him, would be obliged to litigate, at the same time, the questions, whether the debt claimed was due or not, and whether the conveyance was valid or not; and, after an expensive and harrassing litigation, it might be ascertained that no debt was due. Without a contract for a specific lien, (unless in cases where a legal lien exists,) a creditor can only assert his claim against the person of the debtor, and cannot claim satisfaction out of any specific property belonging to the debtor, until his property be specifically bound to the satisfaction of the debt, by contract or by judgment, as to lands, or judgment and execution delivered to the Sheriff, as to personal estate. The debtor has an unquestionable right to alienate his property bona fide, or to prefer one creditor to another. If the creditor had the right to claim satisfaction out of his debtor's property fraudulently alienated, in a Court of Equity, in the first instance; to give any effect to such proceeding, the creditor must be considered as acquiring, by the exhibition of the bill, a specific right to be satisfied out of that property; and, if so, a subsequent sale of the property bona fide made by the debtor, which, in general, would be valid, could have no effect; and even a subsequent judgment creditor could not levy an execution upon the property in question. And, if several creditors pursued their remedies at the same time, in equity, there would be no rule recognized by law, by which to ascertain their priorities. Many other extremely inconvenient consequences would arise, from permitting such a proceeding, which need not now be insisted on. Besides, a voluntary and fraudulent conveyance is good between the parties, and those claiming under them, and void only as to creditors, who are thereby delayed, hindered, or defrauded. No creditor can be said to be delayed, hindered, or defrauded, by any conveyance, until some property, out of which he has a specific right to be satisfied, is withdrawn from his reach, by the fraudulent conveyance. Such specific right does not exist, until he has bound the property by judgment, and, in the case of personal property, by execution delivered to the Sheriff, and has shewn that he is defrauded by the conveyance, in consequence of not being able to procure satisfaction of his debt, in a due course of law. Then, and then only, he acquires a specific right to be satisfied out of the property conveyed; and shews that he is a creditor, and is delayed, hindered, and defrauded, by the conveyance. When a party has thus brought himself within the terms of the statute, he is entitled to the assistance of a Court of Equity, to remove the impediment to his legal rights: and the lien, frustrated by fraud, will be considered as still subsisting in equity.
A judgment and execution delivered to the Sheriff, against a fraudulent donor, binds personal property in the hands of the fraudulent donee. The execution is against the goods and chattels of the defendant generally; and, the conveyance being void, the goods are still the goods of the donor, and may be taken under the execution. But, a judgment and execution against the executor or administrator of the donor, cannot bind the goods in the hands of the fraudulent donee; since the deed is good between the parties, and those claiming under them. The execution, in that case, is against the goods and chattels of the testator or intestate, in the hands of the executor or administrator, to be administered; and such goods are not, even in contemplation of law, in, and never can come to, his hands to be administered.
Although the judgment against the administrator of Chamberlayne, in this case, did not therefore bind the property in question; yet, it shewed that the plaintiff was a creditor; and the subsequent proceedings in this suit shew that he was hindered, delayed, and defrauded, by the conveyances in question; for, the property was thereby withdrawn from the satisfaction of his demand, and no other assets of the debtor remained for his satisfaction.
These proceedings establish those facts against the donees. A judgment against the donor, in his life-time, would have established the debt as against the donees, unless impeached by them on the ground of fraud, or for any other just cause; inso-much that an execution might be thereupon levied upon the property; and if the donees attempted to impeach the judgment, they must, for that purpose, have resorted to a Court of Equity. We can see no reason why a judgment against the legal representative of the donor should not have precisely the same effect. Indeed, in all cases where the question is, whether a person be a debtor or not, a judgment against him or his legal representative seems to be prima facie evidence of the fact, liable to be controverted upon the ground of fraud, or upon any other just ground, by any one a stranger to the judgment; except, perhaps, in the case of the real and personal representatives of the same person; in which case, either the one or the other might have been sued, in the first instance. Thus, all creditors are entitled to satisfaction out of the assets of a deceased debtor, according to their legal priorities. Each has, therefore, an interest in the question, whether the debts claimed by others be due or not; yet, a judgment in favor of one, binds all others, upon the question, whether the debt be due or not; unless they can impeach it on the ground of fraud. So, in bankruptcy, a judgment against the bankrupt is evidence of the debt against other creditors, until impeached. This rule seems to be peculiarly applicable to the case of persons claiming under voluntary conveyances. Saunders v., Skinner 586, cited in 13 Vin. Abr. tit. Fraud, F. Pl. 18. The donees have attempted to impeach this judgment, but have failed in their proofs. The fact of the want of other assets (than those conveyed to the donees,) to pay the plaintiff's demand, is established in this suit. It is not for the donees to alledge that the assets in the hands of the administrator, ought to have been applied to the payment of this debt. They were applied to the payment of debts; and, as to the donees, that application was rightful, and not injurious. It was their right and duty to surcharge and falsify the accounts of the administrator, if they were wrong, which they have failed to do.
It was not necessary, as a pre-requisite to the maintaining of this suit, to have previously established the fact of a deficiency of assets, in another suit; or to have bound the property by an action against the donees, as executors de son tort, proving in that cause that there were no other assets to satisfy the demand, and prosecuting the same to judgment and execution, as might have been done. 13 Vin. Abr. tit. Fraud, C. Pl. 5. For, all creditors have a specific right to be satisfied out of the property of their deceased debtor, in the hands of his executor or administrator, if there be a rightful executor or administrator; or, if not, in the hands of his executor de son tort; or if, as in this case, there be a rightful executor or administrator, and also an executor or executors de son tort, out of the debtor's property in the hands of the latter, if there be not sufficient assets in the hands of the former. This is in the nature of a lien; and the executor or administrator, and executor de son tort, are in the nature of trustees for the creditors. In general, when there is a rightful executor or administrator, there cannot be an executor de son tort; because, any person, having possession of the property of the deceased, is responsible therefor to the rightful executor or administrator, and ought not, therefore, to be responsible to creditors also. Otherwise, he would be doubly chargeable. But, in the case of fraudulent conveyances, the donee in possession is an executor de son tort, although there be a rightful executor or administrator. For, as he cannot be made responsible therefor to the rightful executor or administrator, the reason of the general rule fails in that case; and if the donee was not, in such case, liable as executor de son tort, the creditor would be without remedy. Roberts on Fraud, Con. 593, and cases there cited; Pierce v. Turner, 5 Cranch 154; Edwards v. HarbenTerm R. 587; 11 Vin. Abr. 219, Pl. 9, and notes; 13 do. tit. Fraud, C. Pl. 5.
The plaintiff, therefore, had a right, without first binding the property otherwise, and without otherwise shewing that he was defrauded, in consequence of there being no other fund, to satisfy his demand, than the property in the hands of the donees, by another suit, to go originally into a Court of Equity against the donees as executors de son tort, for a discovery, account and satisfaction, out of the assets in their hands; and, in that suit, to establish his demand, if it had been liquidated, or was a matter of account, and not before established; and to shew that he could not get satisfaction otherwise, and so was hindered, delayed, and defrauded. And this he has virtually done, although he does not call them in terms executors in their own wrong. In this case, a preliminary suit at law against the rightful administrator, or against the donees, was necessary, as the claim sounded in damages; and the rightful administrator was properly made a party, to account for the assets which had come to his hands. For, if he had had assets to pay the demand, the conveyances would not have been void.
The deeds in question are clearly fraudulent and void as to creditors of the donor. All, except that to Evelyn Beverley, in 1793, were executed when the donor was indebted to a degree of embarrassment, and when the very debt, the satisfaction of which is now claimed, was due; and although he retained enough to satisfy all his debts, and lost a large portion of his personal estate afterwards, by a calamitous accident, he had no right to throw upon his creditors the hazard of such an accident, and to provide for his family at their expense. As to the deed of 1793, although it is probable that the donor was also largely indebted when he executed that deed, yet there is no sufficient evidence of that fact in this record. And, although the donor retained the possession of the property, yet, if the deed had been duly recorded, it might have been valid. But, being recorded on the proof of one witness only, that deed is also fraudulent and void, under that clause of the statute of frauds, beginning with the words, " and moreover." Independent of this clause of the statute, a voluntary conveyance, made by a person not at all indebted at the time, and not in contemplation of future debts, and without any other badge of fraud, would probably be good, notwithstanding the donor retained the possession; for, such possession could be no evidence of an intent to defraud creditors, when none existed, or were in contemplation of the party. But, the said clause invalidates even such a conveyance, unless, in the case of personal property, the deed be recorded on the acknowledgement of the party, or proof of two witnesses, or unless the possession remain bona fide with the donee.
It is also insisted, that the donees ought to have been subjected to a rateable contribution, for the satisfaction of the demand of the appellee. At law, persons claiming under voluntary, fraudulent, and void conveyances, cannot require a creditor to proceed against them severally, for rateable proportions of the debt. He might proceed against them severally, after the death of the debtor, as executors de son tort, for the full value of the assets of the debtor in their hands; and the insolvency of one would not excuse any other; and so it should be in equity, if an attempt to equalize the burthen, produced any unreasonable delay or detriment to the creditor. But where, as in this case, the creditor has convened all the parties, none of whom are chargeable with actual fraud, and where all the materials for a just apportionment are already in the record, and that can be made without any material delay or injury to the creditor; a Court, whose maxim is that equality is equity, should apportion the demand amongst the parties responsible thereto; the more especially as, if the burthen was unequally borne, and the suffering party could, in that event, claim contribution of the others, this would involve those parties in new litigations. But, this ought to be done with a reservation of the right to the creditor, to resort for satisfaction to all the parties responsible to him, to the full extent of their liabilities respectively, in the event of his failing, from insolvency or any other cause, to procure satisfaction from any of the parties, of their due proportions of his demand.
The decree should be corrected in this particular, and the appellants should pay to the appellee his costs, he being the party substantially prevailing.