¶1March 13th 1818, Judge lloane pronounced the Court’s opinion, as follows :
¶2not deciding, as a general proposition, what is to be considered, in this Country, a lis pendens, *180binding- on purchasers without actual notice, yet, eonsidering this case by analogy to attachments against absconding debtors, whose credits as well as effects may he arrested, and alienations thei’eof prevented; and being of opinion that the Subpoena, with the indorsement thereon, operated, agi’eeably to the pi’actice in this State, to stop the payment by the Garnishee of the monies due from him to the other defendants Magruder § Co., and to inhibit a transfer thereof, from them to others, from the time of the service of that process on him, and that service having taken place befoi’e the conveyance in this ease,—is further of opinion that the proceedings in the suit instituted by Howie, in the Bill mentioned, gave that creditor a preference over the claim of the appellants.
¶3On this gi*ound, (and without deciding upon the validity of the Conveyance aforesaid,)
¶4.) Note. The deed of trust was objected to in argument, on several grounds; 1. as fraudulent, and therefore void, because, by its terms, the partnership effects were o be applied to pay private debts of Magruder, as well as debts of the Company: and 2. as not having been recorded in Virginia, without which it could not convey real estate here, so as to bar a creditor. It was contended by Mr Nicholas, that a mortgage of land is considered in a Court of Equity as personal estate: but it was said on the other side, that this rule applies only between the Executor and Heir; that all assignments under seal, of stich mortgages, pass the land itself, and therefore must be recorded.