74 W. Va. 167 | W. Va. | 1914
On January 9, 1908, Ií. C. Batten, as administrator of Thomas Batten, deceased, brought this suit against Oliver Lowther to enforce the lien of a money decree against the lands of said Oliver Lowther. Pending the suit Oliver Low-ther departed this life, and it was revived against his personal representative, and heirs. The chancellor decreed in favor of plaintiff against J. F. Lowther, administrator, the sum of $1,376.93, payable out of the personal assets belonging to decedent’s estate, and also held it to be a lien upon a tract of 242 acres of land iñ Ritchié county, conveyed to said Low-ther by Robert A. Lowther and others, by deed dated 25th July, 1905, and upon one-fourth acre lot in the town of Pullman in said county, conveyed to him by Obey E. Nutter, by deed 2nd May, 1905; and referred the cause to a commissioner to ascertain and report what real estate was acquired and owned by Oliver Lowther on and after the 26th' November, 1894; what disposition, if any, he had made of it, or any part of it, in his lifetime; who are at present the owners thereof; the amount of liens thereon, their priorities and by whom owned; and whether such real estate will, in five years, rent for enough to discharge the liens. From the decree the personal representative and heirs at law of Oliver Lowther, deceased, have appealed.
On the 24th October, 1892, and the 14th March, 1893,
But, to avoid the bar of the statute, plaintiff amended his bill averring a continuous lien from the date of the original judgments, and denying a merger of them in the mone^ decree of November 26, 1894. From October 24, 1892, the date of the earliest of the judgments, to January 10, 1908, the date of instituting this suit, is fifteen years, two months, and sixteen days; and deducting therefrom the space of time that Mr. Lowther is shown by the evidence to have certainly resided out of West Virginia, to-wit, from March 6, 1895, to September 4, 1900, a period of five years, five months, and twenty-eight days, leaves nine years, six months, and twenty-eight days, a period less than the statutory bar.
But counsel for defendants insist that the original judgments were merged and discharged by the personal decree,
The rights of intervening creditors of, or purchasers from, Oliver Lowther, deceased, are not here involved, and it would be inequitable to hold that there is a merger, as between the creditor and debtor or their personal representatives, for the purpose of preventing a defense to the bar of the statute.
It follows that the demurrer was properly overruled. The amended bill did not present a different cause of action from the original bill. Plaintiff was seeking satisfaction of his
E. J. Chapman admits in his answer that there is due from him to the Lowther estate, on account of his purchase of the 132% acres, part of the 242 acre tract mentioned in the bill, $1,975. This is more than the Batten lien and protects Chapman ’s purchase.
It is urged that the decree should be reversed for failure to make Z. Z. Amos, a subsequent purchaser from Oliver Lowther, a party. There is nothing in the pleadings or proof calling the chancellor’s attention to the necessity of making him a party. . Advantage can not, therefore, be taken in this court of the failure to make him a party.
Finding no error, we affirm the decree.
Affirmed.