APPEAL from the Circuit Court of the United States for the eastern district of Virginia. The case, as stated in the opinion of the Court, was as follows: 'In the month of June, 1827, Smith and Kennedy obtained a judgment in the Circuit Court, against Reuben Burton, for $1348 75, with interest from the 14th of October, 1823, and costs. On this judgment an elegit was issued, on the 31st of December, 1827. On the 12th of August, in the same year, Reuben Burton, by deed conveyed his real estate to certain trustees, in trust, to sell the same for the benefit of his creditors; amongst many other debts enumerated in the deed, the judgment already mentioned, recovered by Smith and Kennedy, was included. These last mentioned creditors, the appellees, never assented to, or accepted anything under the trust deed. Burton having died; the only trustee who accepted the trust, on the 21st of December, 1829, sold, under the deed, all the estate, both real and personal, conveyed by it; and at that sale, Sarah Burton, by her agent, purchased, at the price of $1000, the interest of Reuben Burton, that is, two-fifth parts of a certain tract of land called Springfield, supposed to contain about five hundred acres, and also his interest in certain coal pits on the same tract. The character of Reuben Burton's interest in the Springfield tract of land, as appears from the record, was that of a reversion in fee after an estate for life. And the character of his interest in the coal pits, as appears from an agreement in the record, was this: The heirs of Daniel Burton, of whom Reuben Burton was one, were to have, during the widow's life, the right of occupying, using, and working the coalpits, and the right and power of sinking shafts, and searching for coal on any part of the land, except the yard, &c., paying to the widow, during her life, the yearly sum of $200, for her dower interest. The same agreement will show his interest in a mineral spring included in the decree. After the death of Reuben Burton, the appellees, finding that there was no personal estate to satisfy their debt, in September, 1834, filed their bill to enforce the lien created by their judgment; making, amongst others, Sarah Burton a defendant, as purchaser of the interest of Reuben Burton before described, in the Springfield tract of land and coal pits. She answered, saying, that the property conveyed to her was not purchased for her own benefit, but for the benefit of her son Thomas O. Burton, the appellant. She insisted, in her answer, that the appellees had no right to enforce their judgment, as more than five years has elapsed since the death of Reuben Burton. She denied that the judgment created any lien on the property purchased by her, which was valid against her. She insisted that the appellees were entitled to no relief in equity; and that, at all events, a sale should not be decreed. An amended bill was thereupon filed, making Thomas O. Burton a defendant. He filed an answer, insisting on the grounds taken by Sarah Burton. The cause coming on to be heard, the Court held the reversionary interest of Reuben Burton in the Springfield tract of land, and his interest in the right of occupying and working the coal pits thereon, and, also, his interest in the mineral spring thereon, with the twenty-five acres of land adjoining thereto, liable to the appellees' judgment; and decreed a moiety of Reuben Burton's interest to be sold.' From this decree an appeal was taken.' The case was submitted to the Court on printed arguments, by Mr. Lyons, for the appellant; and by Mr. Robinson for the appellees. The argument of Mr. Lyons was as follows: The appellant insists that the decree of the Circuit Court is erroneous, and ought to be reversed. 1st, Because the judgment in favour of the appellees against Reuben Burton, gave no lien upon the interest or share of Reuben Burton in the Springfield coal property, which was purchased by Sarah Burton for the appellant; and which, by the decree of the Circuit Court, was adjudged to be sold. By the common law a judgment conferred no lien upon lands. That lien is the result entirely of the power to extend the lands, and is therefore a statutory power conferred by the act commonly called the statute of Westminster. This position is known to be familiar to the Court; but if authority is desired for it, it may be found in the opinion of Lord Hardwicke, in the case of Stileman vs. Ashdown, 2 Atkyns' Reports, 608, and every subsequent decision upon that subject; and especially in the opinion of the late Chief Justice of the United States, in the case of the Bank of the United States vs. Winston et al., 2 Brockenbrough's Reports, 252; which is quoted, not only because of the high character of the authority, and the just weight which will be attached to it, but because of the distinct and emphatic manner in which the position is laid down, and the rights of the party claiming under the judgment are, in a Court of equity, limited and confined to the right and power conferred by the judgment. The first inquiry then is, could the appellees have extended the interest before mentioned, of Reuben Burton in the Springfield coal lands? It is submitted that they could not. It will be perceived by the Court, that the entire tract of land upon which the Springfield pits are, with the houses, &c., constituted the mansion establishment of Daniel Burton, the father of Reuben, who died intestate, leaving a widow, Sarah Burton, and several children. Until dower was assigned the widow she had the right to retain the mansion establishment, and to derive her maintenance from it. While it remained in that condition, therefore, it is assumed that no elegit could be levied upon it; because if an elegit issue against one child, so might one issue against each child; and thus the whole would be taken and put into the possession of the creditors, and the widow expelled, and kept out, until by her writ she was restored. The children could not lawfully expel the widow; the creditors of the children, standing in their place, could not of course do it. If all could not do it, surely one could not. The lands in the hands of the widow before assignment of dower, could not therefore be taken under an elegit. No assignment of dower has taken place, unless the Court shall regard the agreement entered into by Mrs. Burton and her children (exhibited by defendants,) as such assignment. Is the condition of the appellees aided by that paper? It is submitted that so far from it, the condition is made worse. If that agreement had not been entered into, any creditor of Reuben Burton might have filed his bill against the widow and heirs, and compelled an assignment of dower, which being made, he might have levied his elegit upon the share of Reuben Burton; but this agreement deprives the appellees of that power, because it is founded upon a good as well as valuable consideration–was entered into before any right existed in the appellees–and assigns to the widow, for her dower, the entire tract of land, except the mineral spring, with twenty-five acres, and the right to work the coal mines, and charges them with an annuity of two hundred dollars per annum to the widow. The rights of the appellees, in respect to this property, are manifestly less than if the agreement had not been entered into. Could Reuben Burton's interest in the coal mines and spring, with the twenty-five acres, have been taken under an elegit, after the execution of the said agreement? It is respectfully submitted that it could not. By the inquisition under the elegit the property is placed in the hands of the creditor, who takes all the profits of it, paying therefor a fair annual rent, to be applied as a credit against his claim; and of the portion thus placed in his hands no one has a right to share the profits with him. If this may be done in favour of the creditor of one child, it may be done for the creditors of each; and if two elegits issue at the same time against the same defendant, they take not a moiety but the whole: and thus the widow who has renounced her claim to dower in the other lands of her husband, and thereby suffered them to pass away from her, is to be again ousted and deprived of the annuity, in consideration of which, in great part, she has made her relinquishment under an agreement with the heirs, which is obligatory upon them, and as effectual to charge the property with the rights of the doweress as any which could have been resorted to. It is not necessary to the validity of an assignment of dower that it should be registered: i. e. recorded as a conveyance. If it is, however, and 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 on demise of Hull vs. Green Hill, 4 Barnwell and 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 each the 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 two-fold–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. vs. The York Buildings Company, 2 Atkyns, 107. The proceeding 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. 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 therefore no lien–viz. on the 12th day of August, in the year 1827, Reuben Burton conveyed the property to trustees for the benefit of his creditors. In the month of December, in the year 1829, more than two years after the rendition of the judgments, during the whole of which time no attempt was made to enforce the judgment as against the coal lands by the appellees, who are among the creditors enumerated as the persons for whose benefit the deed of trust is made–a sale of the subject is made under the deed of trust by public auction, and the appellant became the purchaser. No step had been taken, nor any act done by the appellees indicating their dissent from the deed of trust, nor was any such step taken until the month of September, in the year 1834, more than seven years after the judgment was rendered. In the answer all knowledge of the judgment of the plaintiff, as affecting the coal property at least, is denied; the impression it seems being that an elegit had been levied upon other lands, and it is thought the evidence sustains the answer. 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 vs. Walker, 2 Leigh's Reports, 268. The space allowed in this form of argument will not premit 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 him–equity, 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 arising from the sale applied according 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 accordingly. Passing by all this after the trustee 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. 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 will be presently shown, founded upon obligations which bound the heir. But to recur: did the judgment, in the case before the Court, give a lien upon the lands? If it did, then it is respectfully submitted, that the appellees, in the case they have made, had no claim to the aid of a Court of equity; because there was nothing to impede their progress, and remedy at law. In the case before cited, 2 Atkyns, 107, where the debtor was living, Lord Hardwicke decided, that the Court of Chancery had the power to remove a fraudulent conveyance; it being a principle of equity jurisdiction that where fraud in fact is charged, a Court of equity therefore has jurisdiction, because from its more comprehensive power it can more fully try the fraud, although a Court of law is competent to try it. But having done that, its power ceases, and the parties must be left to their remedy at law upon the elegit; and in the case of Wilders vs. Chambliss, administratrix, 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 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 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 marshalling 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 Marshalling Assets, and Marshalling 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 vs. 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 marshall, i. e. to array and arrange, so as to promote justice and equity.