HO YE v. PENN.—1 BLAND. 23

indulged. To sustain the objections, that have been urged upon
the present occasion, would be, in effect, to put aside a practice
which seems to have been long settled with the entire understand-
ing and approbation of the whole community.

Whereupon it is ordered, that the said petition be dismissed,
with cost^, and that the bond be approved.

HOYE vs. PENN.

RIGHTS OF CREDITOR .AGAINST JOINT AND SEVERAL DEBTORS.—VOLUNTARY
CONVEYANCE.—EQUITY PRACTICE.

On a bill against A. and B. joint and several obligors, it was held, that the
trustee, appointed by the decree to make sale of their real estate for the
payment of the debt, should be directed to sell so much of the land
held by A. in the first instance as would raise one-half of the debt, and
to sell so much of the land held by B. in the first Instance as would raise
the other half of the debt, so far as, in that way, it might be found
practicable; but with power to raise the amount by a sale of the whole
at a succeeding period, if it can be done; or in the first instance, if it
should appear to be absolutely necessary to do so.

And where a sale had been made, as thus directed, of so much of the land
of each as not only to pay the half of the debt, due from each; but to
leave a surplus of the proceeds of sale to be returned to each; and after-
wards the purchaser of the land of A. become wholly insolvent, and
the land which had been so taken from A., on a resale, did not produce
even a sufficiency to pay the one-half of the debt for the satisfaction of
which it had been first sold; it was held, that to the amount of the sur-
plus, A. was to be considered as a creditor entitled to come in pro rota,
with the plaintiff, in the distribution of the proceeds raised by the
second sale; but that neither the plaintiff, nor A., could have the defi-
ciency of their respective claims made up to either of them out of the
surplus arising from the sale of B's estate: the whole of which should
be paid to him. (a)

The mere forbearance to sue, without fraud or collusion, cannot affect the
obligee's rights against the obligor or his surety. (6)

A voluntary conveyance to children, the grantor being indebted at the time,
is fraudulent against creditors, without any other evidence of a fraudu-
lent intention, (c)

There can be no final decree until all the defendants have answered, or the
case is in a situation to have the bill taken pro confesso, against those
defendants who have not answered.

A party, against whom the bill had been taken pro con/esso, asked leave to
come in, for the purpose of taking an appeal, which was refused; he,
nevertheless, appealed, and carried the record up; upon which the Court
of Appeals affirmed the decree.

(a) Reversed on appeal, in Hoye v. Penn. 2 H. & G. 473.
(6) See Whitridge v. Durkee, 2 Md. Ch. 442: Tessier v. Wyse, 3 Bland, 28.
(c) Approved in McLaughlin v. Bank, 7 Howard, 228. See Worthington v.
Shipley, 5 Gill, 449, note; Kipp v. Hanna, 2 Bland, 26.