E. W. Peck, for the plaintiff in error.

L. P. Walker, for the defendant in error.

By Court, COLLIER, C. J. According to the principles of mercantile law, a bill or promissory note payable to a certain person or his order, could only be transferred by indorsement, so as to enable the holder to maintain an action thereon in his own name against the previous parties. A mere assignment of such paper without an indorsement, will invest the holder with the same rights only, as he would acquire upon an assignment of a bill not negotiable; and if the beneficial interest be transferred, but there has been no indorsement, the action must be brought in the name of the payee: Story B. Exch. 222; Ch. Bills, 9th Am. ed. 252; Gibson v. Minet, 1 H. Black. 605; Pease v. Hirst, 10 Barn. & Cress. 122; Peacock v. Rhodes, Doug. 633; Andrews & Bros. v. McCoy, 8 Ala. 920, 927 [42 Am. Dec. 669].

It is declared by a statute of this state, that all writings for the payment of money, or any other thing, may be assigned by indorsement, whether they are payable to the order or assigns. of the obligee or payee, or not; and the assignee may sue thereon in his own name: Clay's Dig. 381, sec. 6; see also Id. 383, sec. 12.

From this view of the law, it is entirely clear that the legal title to the notes in the hands of Mr. Brocchus, did not pass to the plaintiff by the indorsements on the receipt. The assignment of the notes, as evidenced by the defendant's indorsement on the receipt, did not authorize the assignee to hold the makers liable to him ex directo, though in equity it conferred all the title which the assignor had. He might have controlled their collection, received the money, settled with, or released the makers, subject to any lien of the attorney. The indorsement of Mr. Brocchus recognizes the act of the defendant, promises to pay the proceeds of the notes, when collected, on account of the assignee to Messrs. Simpson & Co., and look to the assignor to pay the costs of collection.

The contract then between the plaintiff and defendant is not analogous to an indorsement, that is, it does not prima facie impose upon the assignee the necessity of adopting the same measures as are necessary to charge an indorser. It may be conceded that whenever it was shown by extrinsic proof that the defendant was indebted to the plaintiff, and that the receipt was indorsed with the view of furnishing from the proceeds of the notes, the means of extinguishing this indebtedness, the presumption would arise, that if the notes were unproductive, then

the assignor would be chargeable upon the original consideration. But this presumption would be a mere inference of fact, and might be repelled or entirely removed by countervailing proof. No rule of evidence would be violated by its admissionthere is no writing indicating the contract between the parties, which would be contradicted, added to, or varied. The evidence then, that the notes were assigned without recourse, or that the defendant should stand discharged from his indebtedness, although the plaintiff failed to realize the amount of them, serve but to show what was the contract between the parties. In the absence of a writing showing this, by agreement of the parties, or by legal intendment and conclusion operating upon a writing, the evidence was free from objection. The ruling of the circuit court is consequently erroneous-its judgment is therefore reversed, and the cause remanded.

DARGAN V. WARING ET AL.

[11 ALABAMA, 988.]

JUDGMENT CREDITOR MAY FILE BILL TO SUBJECT EQUITABLE INTEREST of his debtor to the payment of his debt, and also to remove impedimenta to a sale at its value of an estate which may be reached by fieri facias. SUIT BY CREDITOR TO SET ASIDE FRAUDULENT DEED gives to the complainant a lien on the land, which will not be defeated by a bona fide sale by the defendant, nor by a sale under execution on the judgment of another creditor. The purchaser under the execution, pendente lite, will, in such a case, be overreached by the purchaser under the decree, and the chancellor will compel him to surrender the possession. NEGLECT OF JUDGMENT CREDITOR TO SUE OUT EXECUTION from term to term after the return of the original fi. fa., postpones his lien to that of a junior judgment creditor who institutes a suit in equity to subject the real estate of the debtor to the satisfaction of his judgment.

APPEAL from the court of chancery at Mobile. The petition filed by the appellant alleged that in December, 1840, Fowlers and Prout and also Crouches and Sneed, recovered judgments in the United States circuit court for the southern district of Alabama, against John Ticknor. Executions were issued on these judgments, and placed in the hands of the marshal, who made due return thereof. Afterwards, in May, 1845, executions were again issued on these judgments and delivered to the marshal. On the seventh of July, 1845, certain real property in the city of Mobile was regularly sold by the marshal under these executions, and the petitioner became the purchaser for

the sum of seven thousand five hundred dollars, and received a deed therefor. This property is in the possession of Moses Waring, under the order of the court of chancery appointing him a receiver in the cause now pending in that court, wherein Joseph Wiswall is complainant, and John Ticknor and James L. Day are defendants. Wiswall in his bill in said suit alleges that he is a judgment creditor of Ticknor by a judgment rendered by the circuit court of Mobile, in the spring of 1842, on which execution has issued, and been returned "no property found." Wiswall's bill is framed for a discovery of assets of Ticknor, and to set aside a deed from Ticknor to Day, executed in April, 1840, on the ground that it is fraudulent as to creditors. A decree has been rendered setting aside this deed and appointing Waring a receiver. Petitioner prays that the receiver be withdrawn as to the premises in question, and that he be placed in possession. Wiswall answered that at the time of the purchase by the petitioner he gave notice of the pendency of his suit. Ticknor and Day merely answer that they are parties to the suit of Wiswall. Waring answers that he was appointed receiver in the Wiswall suit, and has acquired possession of the property by the attornment of the tenant. The chancellor decided that the property in question could not have been sold under execution until the deed from Ticknor to Day was set aside; that Wiswall acquired a lien by filing his bill; that the decree rendered in that suit placed the property in such a situation that it could not be levied on, and that consequently the sale on which the petitioner relies is a nullity. The petition was therefore dismissed with costs. The petitioner thereupon moved the court for leave to bring an action of ejectment against the receiver. The motion was denied, and the petitioner appealed from the order and decree.

J. A. Campbell, for the appellant.
K. B. Sewall, for the appellees.

By Court, COLLIER, C. J. A judgment creditor may resort to a court of equity not only to subject the equitable interests of his debtor, but for the purpose of removing impediments to the sale at its value of an estate which may be reached by a fieri facias. It has been held, that he may file his bill to set aside a fraudulent conveyance of land, as soon as he has obtained a judgment which is a lien upon it: Mohawk Bank v. Atwater, 2 Paige, 54; and to entitle him thus to proceed it is not necessary that he should first sue out an execution: Clarkson v. De Peyster, 3 Id. 320.

But see McKinley v. Combs, 1 Mon. 106; Allen v. Camp, Id. 231 [15 Am. Dec. 109]; Halbert v. Grant, 4 Id. 580; Scott v. McMillen, 1 Litt. 302 [13 Am. Dec. 239]; Screven v. Bostick, 2 McCord's Ch. 410; Beck v. Burdett, 1 Paige, 305 [19 Am. Dec. 436]. A suit in equity by a creditor to set aside a fraudulent deed, and have the land of his debtor sold, it has been decided, gives the complainant a lien on the land, which will not be defeated by a bona fide sale by the defendant, or under an execution on the judgment of another creditor. In such case, the purchaser under the execution pendente lite, will be overreached by the purchase under the decree, and the chancellor will compel him to surrender the possession: Scott v. Coleman, 5 T. B. Mon. 73. See Harrison v. Battle, 1 Dev. Eq. 541; Brown v. McDonald, 1 Hill's Ch. (S. C.) 297, 301; McElwain v. Yardley, 9 Wend. 548; Piatt v. St. Clair's Heirs, 6 Ohio, 233.

In the case at bar, Wiswall not only recovered a judgment against Ticknor, but he caused execution to be issued, which was returned "no property found;" the object of his bill was to vacate a conveyance (among other things) of land which Ticknor had made to Day, upon the ground that it was fraudulent. The jurisdiction of equity is well maintained by the authorities cited, and the most material question to be considered is, whether it can be divested by a subsequent levy and sale under a senior judgment. However this may be, where the lien of the judgment is paramount to that which attached by virtue of the suit in chancery, it is perfectly clear, that if the lien of the latter gave the superior right, the petitioner did not acquire a title by his purchase to which the possession can be yielded. In Newdigate v. Jacobs, Lee, and Rees, 9 Dana, 20, it was determined that the filing of a bill by a judgment creditor to subject the land of his debtor, or at least the service of process upon the bill, gives the complainant a lien on the property, by placing it under the control of the court, which will not suffer it to be withdrawn so as to defeat the object of the bill by any subsequent act or title. If the land is sold under an execution which came to the officer's hands, after the bill had been filed, the purchaser must take it subject to the decree. So in Sumner v. Kelly, 2 Sch. & Lef. 398, it was decided, that when a decree has been obtained by a creditor on behalf of himself and other creditors, a prior creditor who has obtained a judgment at law in ejectment grounded on an elegit, shall not be allowed to get into possession. The lord chancellor remarking that he could

not suffer the proceedings in the court to be disturbed by letting any creditor get into possession.

560; Pope v. Brandon, 2 common law a judgment estate of the debtor; and

The neglect of the plaintiffs under whose judgments the petitioner claims, to sue out executions from term to term, after the return of the originals, if it did not give to the execution in favor of Wiswall the superior lien, yet when connected with the filing of the bill, it had that effect. This, we think, results not only from the plain language of the statutes upon the subject of executions, but from the repeated judicial expositions they have received: See McBroom v. Rives, 1 Stew. 72; Cary v. Gregg, 3 Id. 433; Mills v. Williams, 2 Stew. & P. 390; Collingsworth v. Пorn, 4 Id. 237 [24 Am. Dec. 753]; Wood v. Gary, 5 Ala. 43; Smith v. Hogan, 4 Id. 93; Lucas v. Doe ex dem. Price, Id. 679; Hill v. Slaughter, 7 Id. 632. In respect to the lien of the judgments, it may be remarked that it has been decided, that a judgment gives to the creditor a lien on the real estate, not in virtue of any express statutory enactment, but as a consequence of the act of 1807, which gives the writ of elegit against the lands of which the debtor was seised at the time of obtaining the judgment: Morris v. Ellis, 3 Id. Stew. 401 [20 Am. Dec. 49]. At the did not operate a lien upon the real the statute of Westminster, to which the right of lien owes its existence, does not in express words make the lands liable which the debtor had at the time of the judgment; but it is by implication and judicial construction, and by the election made by the plaintiff to sue out an elegit that a judgment is a lien upon the land: Jones v. Edmonds, 3 Murph. 43. But with us the act of 1812 preserves the lien, though the plaintiff causes a fieri facias to be issued: Clay's Dig., p. 199, sec. 1; p. 205, sec. 17. In Den ex dem. Bell v. Hill, 1 Hayw. 72, it was said a judgment binds the lands from the time it is rendered, so as to take from the debtor the right of disposing of them; but if a fieri facias issues upon a subsequent judgment, and comes to the hands of the sheriff, and the lands of the debtor are levied on and sold thereunder, the title passes to the vendee. Between creditor and creditor, it is not the first judgment, but the first execution that gives the preference. To the same effect is a dictum in Campbell v. Spence, 4 Ala. 543 [39 Am. Dec. 301]. See McBroom v. Rives, 1 Stew. 72.

If Wiswall, instead of proceeding in equity to set aside the conveyance from Ticknor for the benefit of Day, had caused a fieri facias to be issued, and the land in question to be sold,