delivered the-opinion of the court.
This suit was instituted by the plaintiff, Elizabeth White, to recover the sum of 83,000, claimed to have been loaned by her to E. M. Quimby, one of the defendants, and to have three certain deeds of convej-ance made by said Quimby to different parties, each conveying different property, and executed at different times, set aside and declared void as to the creditors of said Quimby, and the property thereby conveyed subjected to the payment of said Quimby’s debts; and also to recover from J. B. Spruill, as endorser of a note for §1,000, made by said Quimby to the plaintiff, that amount on account of sajd endorsement, it being parcel of the sum above mentioned.
It appears by the record that Quimby executed a note for §1,000, which was dated May 9th, 1880, endorsed by the said Spruill, made payable to the order of the plaintiff, and delivered by Quimby to the plaintiff, on which, at the time of the delivery, she loaned Quimby §1,000. Afterwards, and while this note was in the plaintiff’s ownership and possession, Quimby, with the knowledge and consent of the plaintiff, but without the knowledge of Spruill, so changed the note as to make it •express on its face that it was for the sum of §1,500; and, upon the strength of this alteration, Quimby received from the plaintiff the further sum of 8500.
The first of these notes was destroyed or carried away by Quimby, who left the State on the 26th August, 1880; and a few days thereafter, and before the notes were due, this suit was instituted, and an attachment was sued out and levied on certain property conveyed by the deed from Quimby to B. F. Batchelder, one of the appellants. There was a demurrer, to the bill; answers by all of the defendants denying the charge of fraud; and a motion to dismiss the attachment.
The court, however, overruled the demurrer, refused to dissolve the attachment., dismissed the bill as to all of the defendants except as to B. F. Batchelder and Spruill, and decreed that the conveyance from Quimby to B. F. Batchelder was fraudulent and void, and that the property thereby conveyed was liable for {¿nimby's debts, and that Spruill was liable to the extent of $1,000, the amount of the note endorsed by him.
The bill was not multifarious; for, as was said by this court in Almond v. Wilton, 75 Ya. 623, it is common practice for a judgment creditor to unite in one bill any number of purchasers claiming different parcels of land by separate and distinct alienations. When the hill is against fraudulent alienees, the matter in litigation is the fraud charged in the management and disposition of the debtor’s property, in which charge all of the defendants are interested, though in different degrees and proportions. In such a case, and the case at bar is of that character, the uniting of .the alienees in the same suit imposes no hardship on them worthy of consideration in comparison with that -which will be imposed upon the creditors if a different rule is adopted, and they are forced to pursue in a separate suit each person to whom the debtor may. have conveyed any portion of his property in pursuance of his purpose to defraud his creditors. As to the alienees then, we think, that, as
But, as we have stated, the notes, in one of which an alteration had been made, were not duo at the time of the institution of the suit. The question, therefore, arises whether such a claim constitutes a proper foundation for a suit. The suit here was doubtless designed to be what Moncure P., in Cirocle v. Buchanan, 22 Gratt. 218, styled the suit in that case, a suit in the nature of a foreign attachment. And it is insisted that such a suit, upon such a claim, may be maintained — first, under section 2 of chapter 175 of the Code of 1873; and second, under section 11 of the attachment laws (section 11, chapter 148, Virginia Code, 1873). The statute first invoked by the appellee provides that “ a creditor, before obtaining a judgment or decree for his claim, may institute any suit to avoid a gift, conveyance, transfer, or any charge upon the estate of his debtor which he might institute after obtaining such judgment or decree, and that he may, in such suit, have all the relief in respect to such estate which he would be entitled to after obtaining a judgment or decree for the claim which he may be entitled to recover.” This statute came under review in Wallace v. Treakle, 27 Gratt. 487. But there is nothing in the opinion of the court in that case, or in the terms of the statute, which gives the slightest countenance to the position assumed by the appellee. Equally little weight is to be attached to the suggestion that the suit may be maintained under section 11 of chapter 148 of the Code. In O’Brien v. Stephens,
In Newell v. Mayberry, 3 Leigh, 254, Tucker, P., speaking for the court, said: “If it had appeared that the alteration was made by Mayberry, or any other, by his procurement, then he could never recover upon this contract, nor could he be permitted to establish it by any other evidence, or to avail himself of the contract, according to its original or true character.”
sary, as it is a principle of universal application.” And the doctrine applies a fortiori in favor of a surety. 2 Pars, on B. & N. 561-562. Here the alteration was material, for it increased the debt by one-half of the original amount. It was made, if not by the procurement of the plaintiff, at least in her presence and with her permission. And she has actually sought to enforce the collection, not simply of the amount- of her original demand, but of the amount by which the note was increased as well. She nnist suffer the consequences of her own folly and misplaced confidence, for the rule is not only wise but eminently just which requires that, if one of two innocent persons must suffer by the misconduct of a third person, that party shall suiter who, by 1ns own act and conduct, has enabled such third person, by giving- him credit, to practice a fraud or imposition upon the other party. Story on Agency, sections 56, 264; Goodman v. Eastman, 4 N. H. 461; Wood v. Steele, 6 Wall. 82; Miller v. Gibson, 19 Penn. St. R. 123.
Now, as to the defendant, B. F. Batclielder. It must be con
We are of opinion to reverse the decree of the corporation court of Norfolk, abate the attachment, and to dismiss the bill, without prejudice to any right which the appellees may have to hereafter sue (¿nimby or his personal representatives.
Decree reversed.