*Thornton v. Fairfax & als.
January Term, 1878,
Richmond.
Absent, MoncurE, P.
In a suit for the sale of land to satisfy liens upon it, there was an order for an account of the Hens and their priorities, and in 1860 the account was returned arranging the debts in twenty-four classes, of which the 2d, 3d and 13th were debts reported to be due to S. In 1866, the report was confirmed, and there was a decree for the sale of the land, one-tenth cash and the balance at one and two years. The sale was made to J and confirmed, and J directed to pay the money to the receiver. In 1870, T filed his petition in the cause, claiming that the debts mentioned in said 2d, 3d and 13th classes were his, acquired in 1864, and asking that the receiver might be required to report how much of the purchase money he had received, and what he had done with it; and if it had not been paid, for a resale of the land. The case was referred to the commissioner, and J appeared before him, claiming that said debts were his, and contesting the claim of T. S did not claim them — ITeed:
1. Receivers — Who May Require a Report. — That it was competent for T, though not a party to the suit, but who had acquired subsequently the Hens of one who was a party, by petition or motion to require a report from the receiver showing the amount of the purchase money in his hands, and to have it applied to the „ satisfaction of the Hens according to tlieir priorities, and to 'direct a resale of the land for the balance of the purchase money due, pursuant to the decree of sale.
2. Same — Same—Procedure.—It was not necessary that he should have proceeded by bill for that purpose, or to have made the purchaser a party defendant to his petition, or to have required him to answer.
*3. Supplemental Bills. — If S had disputed the claim of T, then it would have been proper for T to have asserted his claim by supplemental bill, or by an original bill in the nature of a supplemental bill.
4. Resales — IVotice to Pui*eliaser. — Before there could be a decree for a resale of the property it was proper and necessary that the purchaser should have notice of the proceeding. The approved practice has been to proceed by the service of a rule upon the purchaser, to show cause why the lands should not be resold.
5. Same — Same.—Though no rule was served on the purchaser in this case, he had notice of the proceeding, and came forward to show cause in his own chosen way. There was no need, therefore, for a rule.
6. Same — Rights of Purchaser. — The purchaser might have moved the court for leave to answer the petition of T; or he* might have filed a supplemental bill, or an original bill in the nature of a supplemental bill, and put the matters in issue on which he relied.
In the year 1860, Reginald Fairfax filed his bill in equity in the circuit court of Alexandria county, to subject to sale for the balance of the purchase money a tract of land which he had sold in 1852 to Benjamin Thornton, then of the state of Virginia, but at the time of filing the bill living in England. The whole price contracted to be paid for the land was $43,315, a part of which was paid in cash, and for the sum *569of $36,315 he gave his bonds to be paid in eight annual instalments, all secured by a deed of trust on the land. The bill stated that Thornton had given a number of deeds of trust on the land, among them two to secure debts to Sweeney, Rittenhouse & Co., and Sweeney, Rittenhouse, Rant & Co., of Washington, and one to secure a debt due the Bank of the Old Dominion; and that judgments had been recovered against him to a large amount. He made the trust creditors above named, the trustees, as well as Benjamin Thornton, defendants; and prayed *that an account of the debts and their priorities, constituting liens on the land, might be taken, that the land might be sold under the direction of the court, and his debt paid.
In June, 1860, the court made a decree in the cause, directing a commissioner to take an account of the debts constituting liens upon the land and their priorities; and in August of that year, Commissioner Moore returned his report. The debts were divided into twenty-four classes, and amounted, principal and interest, up to the time of the report, to $124,770.31. The first class was two of the bonds due to Fairfax, of principal $9,078.75, and interest $1,867.19. The second class was one other bond given to Fairfax — of principal $4,539.37, interest $933.59 — which, having been assigned to Sweeny, Rittenhouse, Fant & Co., was postponed by agreement to the other two bonds. The third class was of three debts due the Bank of the Old Dominion, the principal of which amounted to $9,232.03, and the interest to $1,243.93. The thirteenth class was a debt due to Sweeny, Ritten-house & Co. by judgment — of principal $20,000, and of interest $2,656.66. The debts named in the second, third and thirteenth classes are the only subject of controversy in this case.
The cause came on to be heard in June, 1866, when Fairfax having died, the cause was revived in the name of his executor, an exception which had been taken to the report of Commissioner Moore was overruled, and the report confirmed, and three commissioners named (one of them William H. Dulaney) were appointed to sell the land in the bill and proceedings mentioned, upon the terms of one-tenth of the purchase money in cash, and for the residue three bonds, payable, with interest from the day of sale, in one, two and three years, the *title to be retained until the deferred instalments were fully paid.
At the November term of the court, the report of the commissioners of the sale of the land to John Thornton for $47,474.40, and that he had complied with the terms of the sale, was confirmed, and the purchaser was directed to pay over to the receiver of the court the amount of the deferred payments as they respectively came due, subject to the order of the court. And the commissioner was directed to make a further report of liens upon the land.
In June, 1870, Joseph D. Thorp, of Leeds, in England, filed his peition in the cause. After stating the proceedings in the cause, he said, that since the decree of November, 1866, no order had been made in the premises and no report made by the receiver. Lie referred to the debts stated in Nos. 2, 3 and 13 of the commissioner’s report, and claimed that he was the owner and assignee of said debts with their liens, and had been since the 22d of February, 1864; that they had not been paid; that the amount of the purchase money of the land, viz: $47,474.70, if applied to the payment of the debts in the order of their several priorities as established, as sufficient to pay, besides others having priority, the liens aforesaid numbered 2 and 3, secured by deed of trust, and a greater portion of the judgment lien numbered 13.
The petitioner further shows that the bonds for the purchase money had long since become due; that the receiver ought to have in his hands, if the said bonds be paid, the sum of $42,737.23, besides the accrued interest on said bonds, or a part thereof sufficient to pay the said liens numbered 2 and 3, as well as a part of said lien numbered 13; that the said money ought to be applied to the discharge of said liens in the order of their several priorities. He is informed that Orlando W. Hunt was *and is the receiver of the court, and as such is entitled to the moneys arising from said bonds as they fell due; and that if the money has not been paid to the receiver by the purchaser, the said land ought to be resold for the benefit of the petitioner and other claimants, whose claims have not -been paid. He therefore prays that Hunt, the receiver, may forthwith report what money he has in his hands arising from the payment of said bonds, when the same was paid, and whether or not he has invested the said money, and if invested, how, and what profits have accrued thereon. And he prays that what moneys the receiver may report to be in his hands may be applied to the discharge of the liens in the established order of priority; that if the said purchaser has not paid to the said receiver the said deferred payments in full, the land in the proceedings mentioned may be sold. And as William H. Dulaney and B. FI. Shackleford, two of the former commissioners, were dead, that other commissioners might be appointed to make the sale.
At the same term of the court a decree was made referring the cause to the commissioner for an account, but as the decree is not in the record it cannot be stated more specifically. The commissioner made his report in May, 1872, and he returned with it a mass of evidence, consisting of depositions, interrogatories answered, and documents. From these, as well as the report, it appeared that Joseph Thornton claimed to be the owner of the debts named in Nos. 2, 3 and 13 of the commissioner’s first report; and these were apparently the only subjects of contest before the commissioner. _ Both Thorp and Joseph Thornton examined a number of witnesses, and Thornton filed interrogatories to Thorp, which Thorp answered. From this evidence it appeared *570that these claims had been transferred, with the securities attached to them, to Thornton; but it appeared further that Joseph *Thornton had drawn two bills of exchange on England: one for £1,406.7.1 sterling — $7,031.77; and the other for £4,-519.9.6 sterling — $22,589.04; and that he had sent to his brother, Benjamin Thornton, the evidences of debt with the liens attached, with authority to raise the money for the payment of the bills upon the security of these debts and liens, and that Benjamin Thornton had 'borrowed the money from Thorp, transferring the said debts and liens to him, and with the money had paid the bills. Two objections were made to this arrangement by Joseph Thornton. The one, that Benjamin Thornton had agreed that any surplus over-paying Thorp for the money borrowed should be held as a security for a liability of Benjamin Thornton to Thorp on account of a contract in relation to some timber shipped from America to France. This, Joseph Thornton refused to ratify. The other objection was on the ground of usury. It appears that Thorp was to receive a large compensation for the loan of the money, but there are no usury laws in England.
The commissioner reported in favor of the claim to Thorp to the said debts, and that the purchase money of the land was not sufficient to discharge lien No. 13 by about $14,000.
The cause was transferred to the circuit court of the cby of Alexandria, and at the November term, 1872, the account of the commissioner was recommitted to Commissioner Moore with instructions to ascertain what amount Joseph Thornton had paid on his purchase. of the land, specifying the manner in which he had paid the same, and what amount was paid in satisfaction of liens to which the purchase money was applicable, so as to show the exact balance due on said purchase and unpaid, including interest as of the 1st of January, 1873; and on the 19th of April, 1873, the corn-missioner made his *report, setting out the payments made, and to whom, and showing that all the liens prior to No. 13, except No. 2 and 3, had been discharged, and that there was still purchase money unpaid — of principal, $34,290.24, and interest to the 1st of January, 1873, $6,686.59— $40, 976.83.
The commissioner had made a previous report in May, 1872, in which he stated that Dulaney, as commissioner, and Joseph Thornton and wife had by deed dated the 17th of August, 1869, conveyed the land in the bill and proceedings mentioned to William H. Davis; and that Davis, in December, 1870, had conveyed it to Charles E. Rittenhouse.
The cause came on to be heard on the 22d .of November, 1873, when there being no exceptions to the commissioner’s reports of May 6th, 1872, and April 19th, 1873, they were Confirmed; and it appearing that Joseph Thornton was indebted to Thorp for moneys.lent and advanced, in the sum of $29,629.81, principal money, with interest-on $7,031.77, part thereof, from March 24th, 1864, and upon $22,589.04, the residue thereof, from the 22d of February, 1864, and that said Thorp was the holder by valid assignment from Joseph Thornton, of the several liens upon the real estate in the bill and proceedings mentioned, which refer to the liens numbered 2, 3 and 13, and that they were still unpaid. And it further appearing that Joseph Thornton was still indebted on account of his purchase of the land in the sum of $34,290.24, with interest from the 1st of October, 1869, and that said land was responsible for the payment thereof, it was decreed that unless the said unpaid balance of purchase money was paid within sixty days from the rising of the court, the said land should be sold at public auction by the commissioners named; and if the sale became necessary, that the commissioners should, out of *the purchase money, pay to Thorp, or his attorney, the sum of $29,620.81, with interest; and the residue of the money hold subject to the future order of the court. And commissioners named were appointed to sell the land on terms stated in the decree. Joseph Thornton thereupon applied to, this court for an appeal; which was allowed.
C. W. Wattles, for ihe appellant.
John D. McPherson, G. F. Appleby and F. E. Smith, Jr., for the appellee.
Anderson, J.,
delivered the opinion of the court.
Joseph Dickinson Thorp, at the June term, 1870, of, the circuit court of Fairfax county, filed his petition in a cause depending in said, court, wherein Reginald Fairfax was plaintiff and Benjamin Thornton and others were defendants, claiming to have acquired certain liens upon the lands of Benjamin Thornton, which had been affirmed by a decree in said cause, and for the satisfaction of which, together with other liens thereon, the said lands were decreed to be sold. At the sale Joseph Thornton became the purchaser at the price of $47,474.70, and complied with the terms of. the sale by making the cash payment and executing bonds for the deferred payments. The decree for the sale was pronounced at the June term, 1866, and the sale was made on the 17th day of July following, which was confirmed by a subsequent decree of the court, and the purchaser required to pay his bonds for the deferred payments as they fell due to the receiver of the court. The petitioner asks that the receiver be required to report what amount of the purchase money, if any, had been paid to him, that the same *be applied to the satisfaction of the lien which he had acquired and which had been passed upon by the court, that a resale of the lands for so much of the purchase money as remained unpaid be directed, and that other commisr sioners be appointed to make the sale in the place of two of them, who had died' since the.sale.
*571It was competent for the petitioner, though not a party to the suit, but who had acquired, subsequent to the bringing of the suit, the liens of those who were parties, to ask the court by petition, or by motion to require a report from the receiver, showing the amount of the purchase money, if any, that was in his hands, and to apply it in satisfaction of the liens, according to their priorities, as had been adjudicated, and to direct a resale of the land for the balance of the purchase money due pursuant to the decree of sale. It was only asking the court to execute its decree. Nov was it necessary that he should have proceeded by bill for that purpose, or to have made the purchaser a party defendant to his petition, or to have required him to answer. He was a quasi party to the suit, and subject to the jurisdiction of the court, (Clarkson v. Read & als., 15 Gratt. 288), and must be held to have known the terms of the decree under which he purchased, which required a resale of the land if the purchase money was not paid. The validity and priority of the liens had already been adjudicated, and Thorp only asked that the decree should be carried into execution, and set out in his petition only what was necessary to show that he had an interest which entitled him to move in the matter.
It was of no interest to the purchaser as such, whether the petitioner or the parties litigant were entitled to the liens, and there was no contest between them. The question whether the lands should be resold was unaffected by the question, if there had been such, whether *the liens belonged to the parties litigant, or to Joseph Thorp, who claimed to have acquired them. If the proceeding of Thorp was to assert a claim against parties to the suit, whose interests he claimed to have acquired subsequent to the institution of the suit, and which claim was disputed by them, then it would have been proper for him to have asserted his claim by supplemental bill, or by an original bill in the nature of a supplemental bill. But they did not contest his right, and the matters relied upon by Joseph Thornton in resisting the resale were extraneous to the issues of the pending suit, and were matters which it devolved on him to show.
But before there could be a decree of resale it was proper and necessary that the purchaser should have notice of the proceeding. The practice which has received the sanction of this court is to proceed by the service of a rule on the purchaser to show cause why the lands should not be resold. And upon the filing of Thorp’s petition and the report of the receiver, showing that the purchase .money had not all been made, the court might have directed the rule. That does not appear to have been done, but the purchaser had notice of the proceeding, and came forward to show cause in his own chosen way. There was no need, therefore, for a rule. He appeared by counsel; he claimed to be the holder of the securities himself, and the right to set them off against his bonds for the balance of purchase money, and contested the petitioner’s right to them. He took, depositions and cross-examined the petitioner’s witnesses; he appeared before the master, by counsel, and excepted to his report; he appeared in court, by counsel, in support of his exception, and had the report recommitted. In a word, by his counsel in court and out of court, in every way he thought advisable, he asserted his claim and resisted Thorp’s. He might have moved the court *for leave to answer Thorp’s petition, if he desired to do so.; or he might have filed a supplemental bill, or an original bill in the nature of a supplemental bill, and put the matters in issue on which he relied and which rested with him, and made Thorp and Rittenhouse, Pant & Co., and others defendants, and compelled them to answer on oath, and in that mode contested Thorp’s claim and asserted his own, if he wished to have the benefit of his own answer or of theirs. But he preferred to assert his claim and to show cause against a resale in a different mode. He made no objection to the mode by which the court proceeded, but acquiesced in it and adopted it as the mode of asserting his claim and resisting a resale, and he is estopped now to object to it.
It appears from the record that the liens or securities in question did belong at one time to Joseph Thornton. They were assigned and transferred to him in 1861 by Sweeney, Rittenhouse, Fant & Co., who then held them. In the fall of 1862 he became again indebted to said firm on account of gold transactions, and delivered to them the aforesaid securities as collateral security for any balance he might own therein, which they held until the 5th of December, 1863, and then, in payment of the balance he was owing them, he drew a bill of exchange, bearing date December 5th, 1863, at sixty days’ sight, in favor of said firm, on Benj. Thornton, Holt Hall, near Market Harbors, Leicestershire, England, for £4,-519 9s. 6d. (in American currency, $33,544.44,) which he delivered to them with a part of the above securities attached as collaterals; and also on the same day he drew another bill at ninety days’ sight on the said Benjamin Thornton in favor of said firm, which he delivered to them, for £1,406 7s. Id. — - being $10,438.27 in American currency— for the debt they had acquired by assign^ ment from the Bank of the Old Dominion, which was secured *by a deed of trust upon the lands in question, which they required him to pay, and which they attached to the said last mentioned bill with the deed of trust securing it. All the securities claimed by Thorp as liens upon the land, and reported as such by the commissioners,’and confirmed by the court, were attached to one or the other of said bills of exchange. P,ach bill and the securities attached were placed in an envelope and forwarded by Rittenhouse, Pant & Co. to Lockwood & Co., New York. These bills were each of them accepted by the *572drawee, Benjamin Thornton, payable at Messrs. Barclays & Co., bankers, London; were endorsed by Rittenhouse, Fant & Co: “Pay to Lockwood & Co., or order,” and were endorsed by Lockwood & Co.: “Pay to Messrs. Baring Brothers & Co., or order,” and were endorsed by Baring Brothers & Co.: “Received payment, London,” of date, the one 22nd February, 1864, and the other 24th March, 1864.
The money with which the bills were paid was advanced by the said Thorp, at the request of the said Joseph Thornton and Benjamin Thornton; and the bills, together with the securities attached to them as col-laterals, were delivered to him pursuant to the instructions given by Joseph Thornton to his brother Benjamin, for securing the repayment to him of the said sums of money which he had advanced in payment of the said bills, with interest. These collaterals constitute the liens upon the lands in question, which are reported by the commissioner as valid liens upon the said lands.
The court is of opinion, that they were acquired by said Thorp by assignment of Joseph Thornton, or by Rittenhouse & Co., with the assent of said Joseph Thornton, as valid securities for the moneys he had advanced for the said Joseph Thornton, and by his request in payment of the bills of exchange which he had drawn on his *brother, Benjamin Thornton, and which he had accepted for the accommodation of the drawer; that they are valid liens upon the lands in question, for the satisfaction of which, together with other liens, they were decreed to be sold, and that the said Joseph Thornton is clearly not entitled to set them off against his bonds for the purchase money; but that the said Thorp is entitled to be substituted to the rights and remedies of the original holders of said securities against said lands, or the proceeds of the sale thereof.
The court is of opinion, that the contract of loan was an English contract. It was contracted in England, with c. resident of England and a subject of the Crown; the money was advanced in England and was payable there, and must be controlled by the laws of England; and usury having been abolished in England by 17 and 18 Victoria, ch. 90, the contract cannot be held to be usurious. The appellee only claims the money he advanced, with six per cent, interest.
The court is further of opinion, that although the stipulation in the contract that if the securities should overpay the money advanced by Thorp, with interest thereon, the said Thorp should be entitled to retain them until other claims he held against Benjamin Thornton were satisfied, was bad; the said Benjamin having no authority from his brother Joseph to pledge the securities for such purpose; that the deposit was nevertheless good for the money Thorp advanced at the request of said Joseph Thornton to pay the bills, which were in fact drawn for his accommodation, he having no funds in the drawee’s hands. And for the same reason, that the bills were for his accommodation, it was not necessary that they should have been protested and notice thereof given to him to fix his liability. And this being a proceeding to enforce the collateral securities, it was not incumbent on the ‘¡'creditor primarily to pursue his remedy at law on the bills, but his remedy for that purpose was peculiarly in a court of equity, which only could enforce his securities. And he might have pursued his remedy in both forums at the same time, though he could have only one satisfaction.
The court is also of opinion that Davis was not a necessary party. He was a pen-dente purchaser, if a purchaser at all. Commissioner Dulaney, who united in the deed to him, had no authority to convey the title; and the commissioners are expressly required by the decree to retain the title until the purchaser shall have paid all the purchase money, a large amount of which is still due and unpaid. He is charged with knowledge of want of authority in the commissioner to convey. Hess & al. v. Rader & wife, 26 Gratt. 746, and Erwin’s adm’r v. Lloyd, decided at this term. The status of Rittenhouse, who claims to have been as-signee of Davis, is no better. He is a party to the suit and member of the firm of Rit-tenhouse, Fant & Co., and charged with notice of the existence and binding force of the said liens held by Thorp.
The court perceives no error in the decree of the circuit court, and is of opinion to affirm the same.
Decree affirmed.