Septem'r &als. V. Cook's any matter for which a suit may have been then depend- 1879., ing on the former bond against any such sureties or their Term. representatives, in which case such suit might have been prosecuted to judgment or decree; but as to every such Lingle matter, the new bond, without any express provision therein to that effect, would have bound the obligors therein to indemnify the sureties in the former bond against all loss or damage in consequence of executing the former bond. Code of 1849, ch. 132, §12, p. 550. Iu this case there was no such suit depending on the former bond when the new bond was executed as aforesaid. It therefore follows, from what has been said, that the circuit court did not err in dismissing the bills and amended bills seeking to charge liability on securities in bond of July 16th, 1860, and July 17th, 1860, respectively. 6. The sixth assignment of error is that the circuit court erred "in ordering the bonds, judgments and funds in the hands of the general receiver, which had been assigned to Harnsberger, and had been confided to the said receiver during the pendency of the injunction order should be restored to R. S. Harnsberger." The assignment to said Harnsberger having been a valid assignment, as already shown in the foregoing opinion, it follows as a necessary consequence that the circuit. court did not err in making the order referred to in said sixth assignment of error. 7. The seventh and last assignment of error is, that the said court erred "in allowing the administrators credit for investment in Confederate bonds, as such an order would not be proper, even though sanctioned by the proper Confederate court." A large amount of Confederate States treasury notes having come to the hands of the personal representatives of said John Cook in the course of the execution of their duty, and they being unable by reason of the war then adm'rs. & als. V. Cook's adm'rs. 1879., existing, and the number and scattered location of the Septem'r Term. legatees of their testator, as before shown in this opinion, to distribute the entire fund remaining in their hands Lingle after the payment of the debts of their testator, it was of course their duty to invest the surplus until it could be so distributed. An investment of said surplus of Confederate notes in Confederate bonds bearing interest at the rate of seven or eight per cent. per annum was a reasonable and proper investment to be made by them under the circumstances of the case. The investment in question was so made; and it follows from what has been said that there was no error in the action of the circuit court in regard to the matter set forth in the said seventh assignment of error. The court is therefore of opinion that there is no error in the decree appealed from, and that the same ought to be affirmed. DECREE AFFIRMED. Staunton. MILLER & als. v. CRAWFORD & als. October 9. 1. M being the owner of a large real estate consisting of iron 1879. Septem'r works, ore banks and lands, as well as a large personal estate, Term. but being indebted to insolvency, with judgments and executions against him, made a deed, in which his wife joined him, by which he conveyed to a trustee the whole of his property of every kind for the payment of his debts. In this deed it was provided that the value of the wife's contingent right of dower in the real estate should be ascertained in a mode specified, and in consideration of which sums so ascertained she joined in the deed releasing her contingent right of dower in said real estate. The trusts of the deed were, that C and S, who had undertaken to pay off the executions, and who were creditors of M, and the wife of M, should be creditors of the first class, C and S each for the amounts they should pay, and the amount due them, and the wife for the amount of the value of her contingent right of dower, ascertained as prescribed in the deed; and all other creditors in the second class. The whole property did not sell for enough to pay the first class creditors in full, and a judgment rendered against M, and docketed before the deed was executed-HELD: That the wife of M must abate ratably with C and S for the payment of said judgment, and for any deficiency of the trust fund to pay the said C, S and the wife, in full of their claims. This was an appeal by Mary Miller and her children from a decree pronounced by the circuit court of Augusta county, on the 10th day of July, 1877, in a suit which had been instituted by the late John B. Baldwin, as trustee in als. 1879. a deed of trust executed in 1857, by John Miller and his Septem'r Term. wife Mary, to secure his creditors, asking for a construction of said deed, and for a settlement of his account as Miller & trustee. After the death of said Baldwin the suit was revived in the name of his executrix, and the sheriff of &als. Augusta county, as trustee and commissioner. The case as viewed by the majority of this court is stated in the opinion of Judge Christian. V. Crawford Sheffey & Bumgardner and Thos. C. Elder, for the appellents Geo. M. Cochran, Jr., for the appellees. CHRISTIAN, J. This case is before us by appeal from a decree of the circuit court of Augusta county. It has been very elaborately and ably argued by the counsel on both sides. Upon a careful review of the record before us, we find that the single question we have to determine is, what is the proper construction to be given to the deed of trust executed by John Miller and wife to John B. Baldwin, trustee, and what are Mrs. Miller's rights in this litigation, as secured by said deed? The facts to be gathered from the record, material to be noticed, are as follows: John Miller was the owner of a valuable iron furnace, and also of certain real estate, consisting of ore banks, timber land and farming lands, lying in the counties of Rockingham, Albemarle and Augusta. In the year 1857 he was extensively engaged in the manufacture of iron at his furnace and forge in the county of Augusta. He had become, in the prosecution of this enterprise, largely indebted. Numerous judgments had been recovered against him, and executions to a large amount were in the hands of the sheriff, about to be, if not actually levied on his personal estate. Owing to the pressure of 1879. Septem'r these debts, it was impossible to continue his business of Term. manufacturing iron, which was very extensive, and then considered a very valuable enterprise, unless his personal Miller & estate could be released from the lien and levy of executions then in force against him, amounting to the sum of Crawford about ten thousand dollars. Under these circumstances, being desirous to continue his business, which he hoped to be profitable, and at the same time to secure all his creditors, he executed a deed of trust for that purpose, by which he conveyed to John B. Baldwin, trustee, all his estate, real and personal, which was then considered very valuable; his real estate conveyed in said deed consisting of "ore banks, timber land and farming lands, lying in the counties of Rockingham, Augusta and Albemarle, embracing the iron furnace and forge and mills operated by said Miller," and his personal estate, also conveyed in said deed, consisting "of slaves, stock, machinery, implements and materials, household and kitchen furniture, crops growing and gathered, and every article of personal property of whatever kind and description held, owned or claimed by said Miller, wheresoever situated; also all debts in any wise coming to said Miller or money to which he is in any manner entitled from whatsoever sources, and whether the same be due or not." In order to carry out the purposes of this trust deed, to wit: to enable Miller to continue his business in the manufacture of iron, and at the same time to secure his creditors, it was necessary, in order to prevent a total suspension of his business, that his personal property employed in, and which was necessary to its successful prosecution, should be released from the liens and levy of executions, then in the hands of the sheriff of Augusta county; for if these executions, amounting to the sum of at least ten thousand dollars, were to be enforced, then the enter als. V. & als. |