Cole's Aministrator v. M'Rae

27 Va. 644, 6 Rand. 644, 1828 Va. LEXIS 47

Opinion

Judge Green

prepared the following Decree, which was concurred in by Judges Cabell, Coalter and Cars, and entered as the Decree of the Court.

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“ The Decree in this case not having decided upon the validity of any of the Deeds mentioned in the proceedings, and impeached by the Plaintiff as fraudulent, nor as to the extent to which, and in what order, the debts due from the Defendant, Cole, to the Plaintiff, and the other Defendants, are chargeable upon the property professedly conveyed by those Deeds, it is not thought proper in this stage of the proceedings to decide those questions here. And although it is clear that the whole property conveyed by those Deeds, or so much thereof as may be necessary to pay all the debts aforesaid, must be sold for that purpose in the progress of this cause, yet the Court doubting whether it was proper to direct the real property in question to be sold for cash to be deposited in the Bank to the credit of the cause before these questions were decided, since that course had a tendency to sacrifice the property, by discouraging the creditors from bidding, as they probably would, if their right to satisfaction of their debts, and the order in which they were to be paid out of the property, were previously ascertained, awarded a Svpei'sedeas in respect to the land only, leaving the Decree as to the personal property tó be executed, inasmuch as that was perishable, and liable to be wasted, and no such sacrifice was to be apprehended in respect thereto from the causes aforesaid, since it could be sold in detail. And the Court is now of opinion that the Decree, so far as it directed the lands, in the proceedings mentioned, to be sold, was premature, and therefore erroneous: and that the said lands should have been put into the hands of a receiver, to be by him .rented out until the rights of the parties, in respect to that subject, were determine ed-, having a due regard to the rights also of. the widow of Cole, if any she has.”

The Decree was therefore reversed, so far as it conflicts with this opinion, and affirmed as to the residue, and -the cause remanded to be farther proceeded in accordingly.-

Absent, the Paesieekt.