the inquisition under the elegit the property is therefore no lien-viz., on the 12th day of Auplaced in the hands of the creditor, who takes | gust in the year 1827. Reuben Burton conall the profits of it, paying therefor a fair an- veyed the property to trustees for the benefit nual rent, to be applied as a credit against his of his creditors. In the month of December, in claim; and of the portion thus placed in his the year 1829, more than two years after the hands no one has a right to share the profits rendition of the judgments, during the whole of with him. If this may be done in favor of the which time no attempt was made to enforce the creditor of one child, it may be done for the judgment as against the coal lands by the apcreditors of each; and if two elegits issue at pellees-who are among the creditors enumeratthe same time against the same defendant, ed as the persons for whose benefit the deed of they take not a moiety but the whole: and trust is made-a sale of the subject is made thus the widow who has renounced her claim under the deed of trust by public auction, and to dower in the other lands of her husband, and the appellant became the purchaser. No step thereby suffered them to pass away from her, uad been taken, or any act done by the appelis to be again ousted and deprived of the an- lees indicating their dissent from the deed of nuity, in consideration of which, in great part, trust, nor was any such step taken until the she has made her relinquishment under an month of September, in the year 1834, more agreement with the heirs, which is obligatory than seven years after the judgment was renupon them, and as effectual to charge the prop- dered. In the answer, all knowledge of the erty with the rights of the doweress as any judgment of the plaintiff, as affecting the coal which could have been resorted to. It is not property at least, is denied; the impression, it necessary to the validity of an assignment of seems, being that an elegit had been levied updower that it should be registered: i. e., re- on other lands, and it is thought the evidence corded as a conveyance. If it is, however, and sustains the answer. 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 an annuity, and a judgment is rendered against the grantor, the land cannot be taken by elegit. Doe ex dem. Hull, v. Green Hill, 4 Barnwell & 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 eachthe right of the annuitant.

What, then, it may be asked, were the rights of the appellees in reference to this property, when they obtained their judgment? They were twofold-either to take Reuben Burton under 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 the 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 the power of a court of equity to sell the lands in such a case is clearly repudiated by Lord Hardwicke in the case of Higgins et al. v. The York Buildings Company, 2 Atkyns, 107. The proceedings to judgment at law, and the lis pendens to enforce it in equity, would have given it, if not a lien exactly, a preferable claim; and a purchaser, even for valuable consideration, would have been bound as a purchaser with notice. If a ca. sa. had been executed after the conveyance, the lien of the judgment would have been lost. 468*] In the absence of a lis pendens, and when, if this view be correct, the appellees had not the power to extend by an elegit and had

Certainly the answer is not overthrown by the requisite degree of proof-there being only 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 the 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 case, 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 v. 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 necessary. 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 seven years. And why should a court of equity seek to turn the scale against himequity, which always follows and only aids the law? In such a 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 I 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 the money aris ing from the sale applied according [*469 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 most ample for any purpose, and if any step had been taken by the creditor, the priorities of the parties would have been settled and the purchase money paid over ac

cordingly. Passing by all this after the trus-, tee has misapplied the purchase money, as the judgment creditor contends, he comes into a court of equity to ask as against the purchaser, that which he cannot obtain at law. No principle is conceived upon which the claim preferred can be sustained.

II. If the judgment did confer a lien, then 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 only aids it, is a principle too familiar and well known to need 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 to which there may be 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 incumbrances. 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.

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 assume the power to sell the lands to satisfy the very same debt. There 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 power to redeem prior incumbrances, and the practice in marshaling 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 work upon the subject, as the latest and most luminous of which, Story's Equity, titles Marshaling Assets, and Marshaling Securities, is referred to. The practice of selling when the obligation binds the heirs, if it be established, cannot furnish authority for selling in a case like that before the court, because the judgment does not bind the heir. Stileman v. 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 marshal, i. e., to array and arrange, so as to promote justice and equity.

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 arrived at the conclusion that they may do that which the law could not do, and sell the land. But this has been, not in a case like that before the court, but in cases as it It is thought, however, that the court will will be presently shown, founded upon obliga- find in most, if not all the cases in which detions which bound the heir. But to recur: did crees for sales have been made, that the case the judgment, in the case before the court, give came into court under the power to redeem, as a lien upon the lands? If it did, then it is rein Stileman v. Ashdown, or to marshal, or upon spectfully submitted that the appellees, in the claims binding the heirs in some form. In this case they have made, had no claim to the aid case not one of these qualities exists. There is of a court of equity; because there was nothing nothing to redeem; if there is, the plaintiff does to impede their progress, and remedy at law. not ask that privilege; there is no fraud alIn the case before cited (2 Atkyns, 107), where leged; there is nothing to marshal; and the the debtor was living, Lord Hardwicke decided claim was originally on a simple contract, and that the Court of Chancery had the power to therefore did not bind the heirs, and the judgremove a fraudulent conveyance; it being a ment does not bind the heirs. The case, then, principle of equity jurisdiction that where presents these peculiarities. One man has a simfraud in fact is charged, a court of equity ple contract claim against another: he sues him therefore has jurisdiction, because from its and obtains judgment. If he pleases he may more comprehensive power it can more fully extend his lands, but he cannot sell them: he try the fraud, although a court of law is com- extends them, and the debtor dies, and by that petent to try it. But having done that, its event a power is conferred to sell the land, alpower ceases, and the parties must be left to though the reason against selling may be and their remedy at law upon the elegit; and in generally is stronger after the death of the anthe case of Wilders v. Chambliss, Administra-cestor than before. To the heir it may be a trix, and Heirs, 6 Munford, 432, the Court of Appeals of Virginia affirmed a decree of Chancellor Taylor, dismissing the bill of the judgment creditor upon the ground that the elegit was the remedy; it appearing in that case 470*] 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 be shown presently that the latest Virginia decisions concur with that last cited; at least in this, that the land should not be sold

matter of great importance to be enabled to pay the debt off by the gradual process, or at least to keep it out of the market, where it may be sacrificed at a sheriff's sale, until he can acquire the means to prevent the [*471 sacrifice. How is it that the death of the father shall confer the power to do that which could not be done while the father lived? Why should it be so? If it be said that here the elegit was not actually levied in the lifetime of the debtor; that only weakens, if it affects at all the case. Then the case stands thus: the land descends to the heir, and comes into his possession; the creditor pursues with a claim which does not bind the heir, and which, if

351

carried to its utmost extreme, could only take | possession for a limited time 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 be told this shall not be; he must pay immediately the debt for which he is not bound, and for the satisfaction of which not even the other moiety of the land could be touched, for which in the lifetime of his ancestor no foot of the land could have been sold, or the entire moiety must be sold. Whence the right thus to abridge the right of the heir? Let 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 forced 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 terre-tenant. Is there a case in which the power of the 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 hands of the man from whom he purchased it, would not have been liable to such sacrifice? Is it not enough in such a case that the 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 the 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 marshaling either assets or securities; for the land, at the death of the vendor, was no part of his estate. No reason is seen, and no authority is known for it, in a case like the present.

III. If the appellees had a right to come into 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 account only of the rents and profits accruing, and the application of them to the payment of the debt.

472*] *In Coutts v. Walker, 2 Leigh's Reports, 268, 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 her life judgments were rendered against one of 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

the sons.

252

plaintiff was not entitled to a sale, but must be paid out of the profits.

In the case before the court, the agreement with Mrs. Burton places the property, as to the debtor, just where the settlement in Coutts' case did; subject to the annuity, he was entitled to his share of the profits and the rever sion in fee. The case seems to be in point directly. In a later case (Tennant's Heirs v. Patton, 6 Leigh, 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 the case of Mann v. Flynn, recently decided (the opinion pronounced by Judge Stannard), the same court affirm the case in 6 Leigh. The manuscript opinion is now offered to the court by the favor of Mr. Leigh.

The case of The United States v. Morrison et al., in this court, has been relied upon. That case was ruled chiefly upon authority of Coleman v. Cocke et al. 6 Randolph. Now, it so happens that in Coleman v. Cocke, the question was not raised as appears by the case; and Judge Green, moreover, expressly so declares in Blow v. Maynard, 2 Leigh, 29.

IV. It is insisted that the appellees, having made no objection to the deed of trust although 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 have 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. The 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 decree should have been rendered upon it until it was revived, if it could be. If it could not be, then no decree could be founded on it.

*For the foregoing reasons, it is asked [*473 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 v. Warre, 4 Eng. Condensed Chancery Report. But, it is repeated, that when the right of the creditor depends upon the power of

Peters 13.

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:

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 her 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. The judgment is clearly a lien upon a moiety of all the lands or tenements of which the debtor is seized. The estate in lands or tenements of a In the court below the statute of Virginia joint tenant, or tenant in common, is charged was relied on, which declares that no action of by judgment against such joint tenant, or tendebt shall be brought against an executor or ant in common, as much as any other interest administrator, upon a judgment obtained in real estate. It has long been so settled. In against his testator, or intestate, nor shall any Viner's Abr. tit. Execution, let. N, pl. 25, Vol. scire facias be issued against any executor, or X. p. 549, it is laid down that "if there are administrator, to revive such judgment after two joint tenants, and one makes a statute, the expiration of five years from the qualifica and afterwards joins with his companion in a tion of his executor, or administrator. 1 R. feoffment of the land, the moiety of the land C. p. 492, sec. 17. A single answer to this ob- may be extended upon this statute." As it jection will suffice. The qualification of Reu-may be extended upon a statute, it may likeben Burton's administrator was on the 9th of December, 1829. 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 defense 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 then is, how far it operates as a lien 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 lands and tenements whereof the debtor was seized at the day of obtaining the judgment, or at any time afterwards. 1 R. C. 525.

Some years before the judgment, Daniel Burton, the father of Reuben Burton, died intestate, leaving Sarah Burton, his widow, and the following children as his heirs, to wit: Thomas, a child by the said Sarah; and Susan, Mary, Reuben, Rebecca, and William, by 474] a former marriage. Rebecca afterwards died intestate, and unmarried, leaving her brothers and sisters as her heirs. As heirs 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. Reuben Burton acquired, by purchase, the whole interest of William, as heir of Daniel Burton, and 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 sixth, being rather more than two fifths.

wise be extended upon a judgment. See Gilbert on Executions, 41, 42.

The question applicable to the tract generally, with the exception of the interest just mentioned, is, whether a judgment against a debtor who has a reversion in fee expectant upon an estate for life, creates a lien upon such reversion. It was upon this part of the case that the other side relied principally in the court below.

We were told that a rentseck was not 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 not be extended.

The case in which it was decided that a rentseck could not be extended, was that of Walsal v. Heath, Cro. Eliz. 656. The action was replevin. The avowry was, that J. S. seized 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 per annum. The baron being indebted by obligation made the said Sibyl, his [*475 wife, executrix. The debtor brings debt against her, by the name of Isabel, and recovered; and upon a writ of fieri facias a devastavit was returned, and thereupon an elegit awarded, and the sheriff returned that Isabel had £4 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. Second, the recovery against Isabel is void against Sibyl, and the sheriff cannot extend her land. Third, the sheriff delivering the rent without land, so as there is not any reversion, it is but a rentseck; and a bare rent cannot be delivered, ut liberum tenementum.

By the terms of the agreement relied on in This case does not at all go to show that a the defense, the heirs of Daniel Burton were to reversion in fee is not charged by a judgment. have during the widow's life the right of oc It would be very remarkable if the judgment cupying, using, and working the coal pits, and should create no lien upon a reversion when also the right and power of sinking shafts and such reversion is liable to a mere bond creditor searching for coals on any part of the tract of of the ancester. For it has been long adjudged land attached thereto, except the yard, houses, that upon an obligation of the ancestor, binding and gardens; and also the right and privilege | himself and his heirs, the heir may be charged

in respect to any estate of freehold which has ments were actually vested in the defendant: descended upon him. A reversion in fee expect | because the statute is a moiety of the lands, ant on a term of years, is regarded as assets in which extends to reversions, which are com the hands of the heir, although the term be to prised under the name of lands, since they are continue five hundred years, as was the case in lands returning to the defendant when the Smith v. Angell, 2 Ld. Raym. 733. A reversion particular estate ceases; and, therefore, though in fee expectant on an estate for life is also this was formerly disputed, the latter resoluassets, notwithstanding the life estate be still tions have settled the law to be as we have alcontinuing. Rooke v. Člealand, 1 Lutw. 303; 1 ready mentioned." Ld. Raym. 53; Vin. Abr. tit. Execution, M. pl. 7, 15. If the party seized 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 lifetime, is worse off, in respect to this matter, than a creditor by specialty merely.

In the case of Coke v. Barnsley, Brownl. 234, where the question was whether land held in ancient demesne was extendible, the 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, rendering rent, the reversion may be extended upon an elegit during the lease, and the tenant by elegit shall have a moiety of the rent. Sir Thomas Campbell's case, 1 Rolle's Abr. 894, pl. 5. It is also settled that if there 476*]be tenant for life, the reversion in fee, and he in reversion acknowledges a statute, 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 a 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 equal to that of a statute. It was so decided by Lord Hardwicke, in Gifford v. Barber, 4 Vin. Abr. tit. Charge, let. A. pl. 17, p. 451. There the judgment debtor had a reversion after an 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, 88, 39. He says, "The judgment binds not only the lands and tenements of which the defendant is actually seized, but also the reversions on leases 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,' etc., yet the intent of the writ extends to whatever lands and tene

The law is laid down in the same way 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 v. 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 a lien upon the property, that lien clearly operates against the alienees of the debtor. The United States v. Morrison, etc., 4 Peters, 124; Watts v. Kinney, etc. 3 Leigh, 272.

If there were any difficulty in taking the reversion of the debtor in 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. Coutts v. Walker, 2 Leigh, 268.

In this case, the reason for enforcing the lien against the alienee 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 [*477 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 v. Stanard, etc., 4 Munf. 538. Neither can anyone claiming under the trust make that objection. It might indeed 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 land, so far as the creditor has a lien upon it.

That equity will at the suit of the creditor, after 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 out of the rents and profits, was settled in Stileman v. Ashdown, 2 Atk. 608; Amb. 13, and has been acted on in a great number of cases. Galton v. Hancock, 2 Atk. 433; O'Gorman . Comyn, 2 Sch. & Lef. 137; O'Fallon v. Dillon, Ibid. 13; Countess of Warwick v. Edwards, 1 Dick. 51. In Virginia the principle has been recognized in Blow v. 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, etc. v. Tong, 2 Str. 879; 3 P. Wms. 401, where the question related to an advowson which had descended upon the heir,