94 Va. 677 | Va. | 1897
delivered the opinion of the court.
In the suit of Green &c. v. Smith, pending in the Circuit Superior Court of Culpeper county, a decree was made at the November term, 1842, directing John C. Green and others, as special commissioners of the court, to make sale of certain real estate of the defendant, William Smith. The decree authorized the special commissioners to sell upon a credit of one, two and three years from the day of sale, in equal instalments, with interest, &c,, to be secured by bond or bonds of the purchaser or purchasers with good personal security, and a deed of trust upon the property sold. Pursuant to the decree, the special commissioners” sold on December 29, 1842, the “Coach Factory lot,” or a portion thereof, situated in the town of Culpeper, to one George Ficklin, at the price of $1,180, and took his three bonds for $333.93-^ each, for the purchase money, with Thomas Hill. Jr., as his surety, dated the day of the sale, and payable in one, two, and three years, with interest from their date. They conveyed the property to Ficklin, in which deed Mrs. E. H. Smith united, so as to convey a title exempt from her contingent right of dower, and Ficklin reconveyed the property to one Fayette Mauzy in trust to secure payment of his purchase money bonds, which trust deed was acknowledged by Ficklin before, and admitted to record in the clerk’s oihce of Culpeper County Court by one F. M'auzy, clerk, October 23, 1843. The sale was reported to the court and confirmed. Shortly thereafter Ficklin died and Thomas Hill qualified as his administrator. In pursuance of a decree of the Circuit Court of‘Culpeper county in the suit of Coons and wife v. George Ficklin's Adm'r, in
Pursuant to this decree, and after obtaining directions in writing from Thomas Hill, administrator of Ficklin, to sell
Commissioner Green, and Latham, executor, disregarded this notice, and proceeded with the sale, and C. G. Miller, being the highest bidder, the property was knocked out to him at the price of twenty-five hundred dollars. The purchaser at once signed a memorandum of bis purchase, but refused to pay any part of the purchase money or to give his bonds therefor; whereupon Green, commissioner, made a report of these facts to the Chancery Court of Bichmond, and June 26, 1883, he and Latham, executor of Fayette Mauzy, deceased, filed their petition in the case of Green v. Smith, setting forth all the foregoing facts, and further alleging that all the parties in possession of the real estate in question claim title under George Ficklin; that after the death of Ficklin, Thomas Hill was appointed a commissioner of the Circuit Court of Culpeper county, at the November term, 1853, in the suit of Coons and wife v. Ficklin's Adm'r, &c., and on January 4, 1854, sold this real estate in three lots, one to J. T). Brown, one to Nesley Wood, and the other to John H. Bixey; that said sales were reported to the court and confirmed, and a decree entered for the collection of the purchase money by Hill, as commissioner, and when paid for deeds to
It is further alleged that by the proceedings had, both in the causes of Green v. Smith and Coons and wife v. Ficklin's Adm'r, &c., the amount of the balance owing by Ficklin’s estate and secured by the trust deed given to secure the same üas been ascertained; that the real estate in the possession of the present claimants is liable to the lien of the trust deed and
The trust deed is made a part of the petition, and the prayer of the petition is that the parties asked to be made defendants be required to surrender the possession of the lots to petitioner F. M. Latham, executor of Fayette Mauzy, trustee, deceased, that he may proceed with the sale thereof, &c.
Process was issued against the defendants named in the petition to answer, and the cause (Green v. Smith) having been removed back to the Circuit Court of Culpeper county, they appeared on lune 4,1892, and demurred generally to the petition. When the cause was heard at the September term, 1893, of the Circuit Court of Culpeper county on the petition and exhibits therewith, and the demurrer thereto, the demurrer was sustained, and the petition dismissed.
It is from this decree that this appeal, by John W. Bell, appointed commissioner in the place of A. M. Green, who had died, and Mary N. Smith, executrix of Mrs. E. EL Smith, deceased, and administratrix of William Smith, deceased, is taken.
The defences relied on by appellees are presumption of payment arising from the lapse of time; the equitable bar, founded on the lapse of time and laches of the creditor and that they are Iona fide purchasers for value without notice of the lien of the deed from George Ficklin to Fayette Mauzy, trustee, as the deed was never properly admitted to record in the clerk’s office of Culpeper County Court.
The purpose of the petition was to make the claimants of. the property parties to the suit of Green v. Smith, and to bring them into court to answer.
We need not discuss the question whether or not the statute of limitations may be taken advantage of by way of demurrer, as that question does not arise. There was no positive limitation of time as to the right of action upon the bonds
There was unquestionably a lapse of twenty years from the maturity of the bonds to June 1, 1877, excluding the period of the stay law, whereby the common law presumption of payment arose, but the petition alleges a payment cn the debt by Ficklin’s administrator November 8, 1858, which repels the presumption. It follows, therefore, that the debt asserted was an existing debt when the petition of appellants was filed in 1880, or 1883.
The question of laches is attended with mote difficulty. “Laches” is the neglect to do something which a party ought to do, and mere lapse of time, unaccompanied by some circumstance affording evidence of a presumption that the right has been abandoned, is not considered “laches.” And claims are considered “stale” only where gross laches is shown with unexplained acquiescence in the operation of an adverse right. It is unquestionably true that a court of equity will refuse its aid to enforce stale demands, where the party has slept upon his rights or acquiesced for an unreasonable length of time. But whether the lapse of time is sufficient to bar a recovery, must, of necessity, depend upon the particular circumstances of each case. Tunstall's Adm'r v. Withers et als, 86 Va. 892, and cases cited.
Apparently, by the petition of the appellants and the trust deed from George Ficklin to Mauzy, trustee, admitted to
The petition sets out facts and circumstances which, if sus tained by the proof, would repel the presumption that the debt has been paid, and explain the great lapse of time in the enforcement of the lien, and the demurrer admits the truth of these allegations. There • was a payment on the debt in 1858, and the balance due thereon ascertained and fixed in the suit of Coons and wife v. Ficklin's Adm'r, before the lapse of time was sufficient to raise the presumption of payment or the abandonment of the lien securing the debt — a suit instituted certainly a& early as 1853, in which Ficklin’s property was sold to pay his debts and the surplus, if any, to be distributed among his heirs. It might have been rendered unnecessary to enforce the lien of this deed of trust by the payment of the debt secured therein out of the fund in the suit of Coons and wife v. Ficklin’s Adm’r. The transaction has not become obscure; the-sum sought to be recovered is not uncertain, and the case, as made by petitioners, does not show such loss of evidence as to produce danger of doing injustice. The claim has been reduced to judgment, certainly against Hill, administrator of the debtor, Ficxlin, and nas recognized by the administrator in 1880 as an existing debt against his decedent when he prescribed by endorsement on the.advertisement by Green, commissioner, the terms upon which the sale of the property should be made under the decree of May 4, 1890.
The allegations of the petition do not warrant the presump, tion of payment or the release of the debt, but show the payment of the debt, or abandonment of the lien therefor improbable. 2 Jones on Mort., secs. 1196-1198.
We are of opinion that the demurrer to the petition of Green, commissioner, and Latham, executor of Mauzy, trustee, deceased, should have been overruled, and the cause proceeded in to a hearing on the merits. The decree appealed from must therefore be reversed, and the cause remanded for further proceedings therein in accordance with this opinion.
Reversed.