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Richmond.

HORD's adm'r v. COLBERT & als.

January 18.

Absent, Burks, J.*

I. H recovers a judgment against M, and dies. Subsequently M conveys
land, &c., to C, to secure two bonds held by W, and this deed is re-
corded. The administrator of H files a bill against C and W, in
which he charges that C and W had notice of the judgment of H
when the deed was executed, and that the debts secured by the deed
are not bona fide. C and W answer, denying the notice, and insist-
ing the debts are bona fide. C and W are examined as witnesses in
their own behalf, and C is cross-examined on all the issues by the
plaintiff, with a knowledge at the time of the objection to his compe ·
tency; and after the testimony of C and W is ended, plaintiff excepts
to the competency of each of them, on the ground that H was dead-
HELD:

1. The plaintiff having cross-examined C on all the issues in the
cause, that was a waiver of the objection to his competency;
and it cannot afterwards be made.

2. QUÆRE. If permitting the examination of W in chief without
objection before it is done, is a waiver of the objection to his
competency.

3. The charge of notice of the judgment being expressly denied
by C and W, the proof of notice must be very clear and con-
clusive to establish it.
1

4. Though the evidence is contradictory, if the chancellor is satis
fied that the weight of evidence is on one side he is not bound
to direct an issue.

By deed bearing date the 3rd of July 1866, Robert L. Martin and wife conveyed to Joseph W. Colbert,

*The case was argued at the November term. VOL. XXVIII—7

1877.

January
Term.

Term

Hord's adm'r

V.

Colbert

1877. Jr., several tracts of land in the county of Fauquier, January his household and kitchen furniture, horses, cattle, &c. and farming utensils, in trust to secure two bonds, held by William S. Colbert. One of these bonds bore date on February 1st, 1866, and was payable one day after date to Robert L. Colbert, for $3,150.54, and assigned by him to Wm. S. Colbert; and the other was dated January 1st, 1862, payable one day after date, to William S. Colbert, for $4,500. This deed was admitted to record in the clerk's office of the county court of Fauquier on the 17th of August 1866.

& als.

Previous to the execution of this deed, viz: on the 5th of November 1865, Enos Hord recovered a judgment against Robert L. Martin for $900, with interest from the 20th of March 1861, and costs. This judg ment was not docketed until the 1st of November 1867. At the same term of the court John S. and N. A. Clopton recovered a judgment against Martin for $3,452.37, with interest from the 17th day of November 1860, and costs. And this judgment was docketed on the 28th of September 1867. There were a number of other judgments, three of which for small amounts, were docketed before the deed was recorded; but the others were either recovered or docketed afterwards.

In June 1869 Hord's administrator instituted his suit in equity in the circuit court of Fauquier county against the Colberts, Martin and wife, the Cloptons and Martin's assignee in bankruptcy. In his bill, after setting out the judgment of Hord against Martin and his deed of trust to Joseph W. Colbert, and referring to the judgment of Cloptons, he charges that Joseph W. Colbert had notice of the judgment recovered by Hord against Martin before the execution of the deed aforesaid, and Wm. S. Colbert had con

structive if not actual notice thereof; and he insisted that therefore the lien of the deed was to be postponed to that of his judgment. He further charged that the deed was intended to hinder, delay and defraud the creditors of Martin; that Martin never was indebted to either of the Colberts as set out in the deed; or if at all indebted, to a much less amount than is therein claimed. He insists that the deed is therefore null and void as to bona fide creditors of Martin. And he prays that the deed may be set aside as to creditors, and that a commissioner may be directed to ascertain and report the priorities of the liens by judgments and deed of trust; and whether the Colberts or either of them had notice of the judg ments at the time of the execution of the deed; whether or not there was fraud in it, or whether there was any purpose to hinder, delay or defraud the creditors of Martin.

William S. and Joseph W. Colbert answered separately. They both deny any notice or knowledge of the plaintiffs judgment before or when the deed was executed and recorded. They insist that the debts secured by the deed are justly due from Martin; and Joseph W. Colbert, who was the active party in the adjustment of the debts with Martin and in obtaining the deed, states the consideration of the debts, and why it was that though both bonds were executed at the same time, viz: in February 1866, one is dated January 1st, 1862-that being the time at which the accounts on which it was based terminated, and Martin was not willing to have the interest added to the principal, so as to carry interest.

The cause came on to be heard in September 1869, when the court referred it to a commissioner to enquire and report the debts due by Robert L. Martin;

1877.

January
Term.

Hord's

adm'r

V.

Colbert

& als.

1877. and that he especially enquire and report as to the January Term. respective priorities of the liens on the real estate of the said Martin by judgments, and the said deed of

Hord's

adm'r

V.

Colbert

trust.

In September 1870, the commissioner returned his & als. report. He reported the debts due by Martin, consti

tuting liens on his real estate, calculating the interest up to September 1st, 1870, at $18,400.94; and he was of opinion that Joseph W. Colbert, the trustee, had no notice of the judgments other than those docketed, prior to the recordation of the deed of trust; and therefore they were given priority over all the other judgments, including those of Hord's adm'r and Cloptons. The report was excepted to by the counsel for Hord's adm'r and Cloptons; and the commissioner returned with his report all the evidence which was before him. This evidence was very voluminous. number of depositions were taken by both parties, and both Joseph W. and William S. Colbert were examined for the defendants; and their evidence was excepted to by the plaintiffs, on the ground that Hord being dead, they were incompetent to testify. It appeared, however, that the exception was not taken to either of them until his testimony had been concluded; and that in the case of Joseph W. Colbert, he had been subjected to a very extended cross-examination on all the issues involved in the cause.

The cause having been removed to the chancery court of Richmond, came on to be heard on the 21st of June 1873, when the court overruled the exceptions. to the report, and confirmed the same; and commissioners were appointed to sell the land in the proceedings mentioned, upon terms stated in the decree. And thereupon Hord's administrator applied to this court for an appeal; which was allowed.

Meredith and Blackwell, for the appellant.

Neeson, Spilman, Ould & Carrington and Marshall, for the appellees.

STAPLES, J. This suit was instituted in the circuit court of Fauquier, by the administrator of Enos Hord against Robert Martin and William S. and Joseph W. Colbert. The bill charges that a deed of trust executed by Martin on the 3rd of July 1866, for the benefit of William S. Colbert, is fraudulent and void; and further that at the time of executing the deed both William S. Colbert and the trustee Joseph W. Colbert had notice of an undocketed judgment held by Hord against Martin. The defendants answered the bill, positively denying all the allegations in respect to fraud and notice. At the September term 1869, a decree was entered, directing one of the commissioners “to take an account of Martin's debts, and also to inquire and report as to the respective priorities of the liens by judgment and the deed of trust." Under this decree other judgment creditors came in, and proved their debts before the commissioner, and numerous depositions were taken bearing upon the questions at issue.

The commissioner reported in favor of the deed of trust; giving it priority over the plaintiff's judgment and the other judgments against Martin not regularly docketed.

This report was excepted to by the creditors; and the same coming on to be heard at the June term 1873 of the chancery court of Richmond, to which it had been removed, the chancellor rendered a decree overruling the exceptions to the commissioner's report, sustaining the deed of trust, and directing a sale

1877.

January
Term.

Hord's adm'r

V.

Colbert & als.

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