delivered the opinion of the court.

The complainant in the court below, as assignee of a judgment recovered by the Tombigbee Railroad and Banking Company, in the circuit court of Lowndes county, on a forfeited forthcoming bond, against Lewis B. Taliaferro and others^ filed his bill in the vice-chancery court at Columbus, to subject to the payment of his judgment, certain real estate in the town of Columbus.

The bill, upon final hearing before a special vice-chancellor, selected under the provisions of the statute of 1840, (Hutch. Code, 772,) was dismissed. From which an appeal, by consent of parties, has been prosecuted to this court.

The first question presented by the counsel for the appellant is, that the special vice-chancellor was not selected according to the requirements of the law. It appears that the vice-chancel--lor, being interested in the matters in controversy, requested the-chancellor of the State to preside at the hearing of said cause. *110Pie, upon looking into the cause, discovered that he was also interested, and designated four members of the bar in attendance upon the court, from which number the special vice-chancellor was selected.

This duty could only have been performed by the vice-chancellor, assigned by law to the district. If the chancellor of the State was incompetent, from interest, to preside at the hearing, his duties were at an end. It was only in his own court that he could cause a selection of a special chancellor to be made, to decide a cause pending therein.

The record showing that the special vice-chancellor was thus selected, the final decree is a nullity, and the cause must be treated as one yet undecided.

The statute of 1840 is definite in its language, that the proceedings relative to the selection of a special chancellor in such a case, and his action therein, shall not appear of record. Every thing is to be done in the name of the regular chancellor. This provision of the statute should in every such case be rigidly adhered to, as its observance may relieve this court from passing upon a question now presented, the constitutionality of the law.

As the parties earnestly desire our opinion on the merits of the case, we will notice the important question at issue.

It would have been error in the vice-chancellor to have dismissed the bill, if he had presided at the hearing.

The controversy is mainly between the complainant as a judgment creditor of Lewis B. Taliaferro, and Maulden Montague & Co., who claim under a deed of trust from Mrs. Shot-well, to secure them in the payment of two bills of exchange drawn by Taliaferro, and indorsed by Mrs. Shotwell and one Harvie. The bill is in every respect a creditor’s bill, and it may be true that Maulden Montague & Co. have a right to prior satisfaction out of the property, but there is no reason shown why the complainant should not have the surplus.

The bill charges that Covington and Calhoun sold the property in controversy to Bell and Conner for $18,000, and gave bond to make to the purchasers a title on payment of the purchase-money ; that this bond was afterwards assigned to Lewis *111B. Taliaferro; that one Cozens held the notes for about $4,000, for the last instalments of the purchase-money; and that Talia-ferro, to defraud his creditors, paid off said notes and procured the title to the property to be made to his daughter, Mrs. Shotwell.

The facts, as disclosed by her answer and other parts of the record, are these: that her father, Taliaferro, took up the notes held by Cozens, by giving him two bills of exchange indorsed by Mi's. Shotwell and one Harvie, on Maulden Montague & Co.; that in consideration of her indorsement, and that of Harvie, the title to the property was to be made to her; and that she, in 1842, executed a deed of trust to Henry Dickinson, for the purpose of securing Maulden Montague & Co., who had accepted the bills. The bill also charges that the cestuis que trust in this deed, had notice of the fraudulent purpose for which the deed was made to Mrs. Shotwell. This allegation is in the fullest manner denied by the answer.

Mrs. Shotwell does not controvert the complainant’s right to have the property subjected to the payment of his judgment,, after these bills shall have been paid.

There is nothing in the record establishing fraud either against Maulden Montague & Co. or Mrs. Shotwell. She also contends that Harvie shall be paid about $900, for money which he paid for this property when purchased by him at execution sale. Upon this point we give no opinion, as the fact is too vague in the record before us, to determine his right in this respect. It appears, however, that the claim of Harvie thus set up, should have been adjusted in the payment of the notes by Calhoun, transferred to Cozens. But we leave the question open for fuller explanation in the court below.

It will thus be seen, that the only claim which Maulden Montague & Co. can assert against the complainant is, that they are entitled to prior satisfaction. If Mrs. Shotwell and Harvie, as indorsers, pay the debts to this firm, they can only ask to be reimbursed, by virtue of their legal title, out of the property; and if, on the contrary, the complainant can show that they were connected with Taliaferro in having this arrange*112ment made to defraud, hinder, or delay his creditors, their claim will have to yield to that of complainant.

Again, if it can be shown that the bills have been paid by Taliaferro, the drawer, the complainant’s remedy against the property will be complete and superior to the deed of trust.

As to the demurrer of Mrs. Shotwell to the bill, because all the defendants in the judgment are not before the court, it is a sufficient answer to state, that all who appear to have an interest in the property are made parties. This is sufficient, as the other parties to the judgment cannot be prejudiced by the decree. It is true that Taliaferro, being only a surety on the forthcoming bond, might, upon payment of the judgment, have his action against the other defendants. But the fact that he would have a remedy against them, does not make them necessary parties in a proceeding to ascertain whether he is in .truth the owner of the property in controversy.

As there was no final decree in the court below, which we -can notice, and as the record shows that the cause is still undecided, we dismiss the appeal for want of jurisdiction.