Calwell's Ex'r v. Prindle's Adm'r

| W. Va. | May 6, 1882

Haymond, Judge,

announced the opinion of the Court:

The case of Calwell v. Prindle’s administrator has, as we have seen, heretofore been before this Court. Calwell v. Prindle’s adm’r, 11 W. Va. 307" court="W. Va." date_filed="1877-09-10" href="https://app.midpage.ai/document/calwell-v-prindles-admr-6591801?utm_source=webapp" opinion_id="6591801">11 W. Va. 307. The case was decided by this Court on the 10th day of September, 1877, and remanded to the circuit court of the county of Greenbrier for further proceedings therein to be had. This Court in the opinion then rendered therein as the opinion of the Court, at page 317, says: “The deposition of David Watts was taken and filed by the plaintiff, but it was excepted to by the defendant, Mathews, as being incompetent and irrelevant; and the Court sustained the exception, I think, properly.” Again, at page 320, the Court said : “The deposition of James Cox was also taken and filed by the plaintiff; and the defendant, Mathews, filed exceptions to it as being hearsay, incompetent and irrelevant. The court sustained the exception rightly, I think, as the witness only deposed to what other persons had told him ; his evidence is simply hearsay and inadmissible. The plaintiff also took and filed the deposition of Joel McPherson, the trustee, in which he testified, that he is fully persuaded, that the debt referred to was adjusted by E. S. Cal well with P. A. Prindle; but he has no personal knowledge of said adjustment. He also says, that his impression was derived from hearsay, but that Prindle had never admitted to him, that said debt was paid, and that he never saw said Prindle after 1861.” Again at page 328 the Court further said : “ The deposition of McPherson simply stated an impression derived from hearsay. This deposition neither proves nor tends to prove anything — it is too uncertain and inconclusive in its very nature to be of any efficacy or force as evidence”

Again at page 323 : “ At the time the property conveyed by said deed of trust was advertised for sale by the trustee, only about fourteen years had elapsed, since the debt became due and payable. The plaintiff in order to prove payment of the debt caused himself to be examined in his own behalf and, as we have seen, he states in his deposition, that he paid the debt before the expiration of the two years from the date of the trust, and that he paid it with the Thomas order to Prin-dle, and took up the bond or note, which he had given for the debt, and that during the war the said bond or note was lost or destroyed, as he believes, in the manner stated in his evidence. He further states, he has made diligent search for the bond or note, and has not been able to find it, but that he found said order, which he exhibits with his deposition.”

At page 326 : “ For the foregoing reasons it seems to me, that no part of plaintiff’s deposition given in his own behalf, or to be more explicit, in chief is admissible under thestatnte, except so much as proves the making and delivery of the Thomas order; and it cannot therefore be read except as aforesaid in his behalf for any purpose.” Again at page 328 : “Under the views I have presented there is no proof of payment of the said debt of $777.00 to Prindle. The only question left for consideration is, whether the lapse of time, between the time the said debt became due, and the time the property was advertised for sale, which was about fourteen years, iu connection with other circumstances appearing in the cause, is sufficient to authorize us to infer or presume, that said debt was paid or satisfied. There is in fact but one circumstance in the cause entitled to any consideration after excluding the deposition of plaintiff, and that is, the failure and inability of the defendant, Mathews, to produce the bond or note, which plaintiff alleges he made to Prindle for said debt. I have shown that the said note or bond, if ever made, was not material or necessary to prove or establish the plaintiff’s deb*1 in this cause. The copy of the deed of trust filed by plaintiff with his bill as evidence in the cause establishes the debt. The plaintiff seems to have forgotten or overlooked the fact, that said deed of trust contains an express covenant on his part to pay said debt in two years. Under the circumstances of this case, as it now stands, 1 do not understand, that the mere circumstance of the inability of the defendant, Mathews, the administrator’, to produce the said bond or note, is sufficient in connection with the lapse of time to authorize or justify the inference or presumption, that said debt has been paid. Indeed in this case, as it is now presented, I do not consider the failure or inability to produce said note or bond, being a circumstance unconnected, as it is, with other circumstances or facts proven or properly appearing bearing upon the question of payment, as being entitled to any efficacy, or as authorizing any reasonable inference or presumption of payment of the debt in question, connected with the lapse of time in this case. The mere lapse of fourteen years, since the debt became due in this case, unconnected with pertinent circumstances proved, from which an inference of payment of the debt may reasonably be drawn, does not authorize a presumption of payment by a court or jury.”

Again at page 330: “Upon the whole it seems to me, that the circuit court erred in its decree of June, 1876, in ascer-tainingand determining, that the claim of defendant, Mathews, administrator of P. A. Prindle, deceased, from what appears in the cause, is not a subsisting debt, and in perpetuating the injunction theretofore awarded in the cause. The creditors named in said trust-deed, their assigns or personal representatives, as the case may be, should have been made parties to the bill. They as well as the plaintiff, if their debts secured by said trust-deed have not been paid, have the right to ¡contest the debt claimed by Prindle’s administrator in this cause, and to have their debts, if existing, paid. The trustee, McPherson, should not have advertised the property in the said deed of trust mentioned, to be sold to pay the Prindle debt to the exclusion of the other creditors named in said deed, from anything that now appears in this case. If the trustee entertained any reasonable doubt, as to whether the Prindle debt was paid or not, and did not know certainly, that the other debts in said deed of trust mentioned were satisfied, or did not exist, he should not have proceeded to advertise the property, or any part of it for sale, until the existence or nonexistence of the said trust-debts, or any part of them, had been first judicially ascertained and for that purpose he should have filed his bill in equity. The decree rendered in the cause must be reversed with costs to the appellant and against the appellee, Edmund S. Calwell, and the cause remanded to the circuit court of the county of Greenbrier, with instruction to said court to permit the plaintiff to file an amended bill, making new and additional parties to the cause, in accordance with the opinion of this court, if he shall ask permission to do so in such time, as said court shall deem reasonable ; and if the plaintiff shall fail to file such amended bill in such time as said circuit court may deem reasonable, then the said circuit court to dissolve the injunction awarded in the cause and dismiss the plaintiff’s bill at his costs. And if the plaintiff shall file such amended bill, leave is given him to take and file further depositions of witnesses upon the subject of the payment, and the existence or non-existence of said Prindle debt, that question being reserved and left open for further inquiry and consideration,” &c.

A decree of this court was made and entered in the cause in accordance with the latter part of said opinion last above quoted. It now appears from the record, that after the cause was remanded to said circuit court, the depositions of James Lilly and Samuel Price were taken, and also, the deposition of plaintiff, Calwell, was re-taken at his instance. These are the only additional depositions taken and filed in the cause in support of the claim, that the Prindle debt has heen paid or

does not exist. The deposition of Lilly proves nothing material. The deposition of said Calwell as re-taken and filed is substantially the same as his first deposition, to which I have referred. Samuel. Price in his deposition in answer to questions, says, £T have been practicing law as a profession for more than forty years. At the time and just before the execution of the trust-deed to me as trustee'to secure the debt mentioned in the deed to Truman Skinner, the said Skinner and E. S. Calwell called on me to examine the clerk’s office ' for incumbrances on the property alluded to, I do not recollect, whether they desired an examination of the title, but believe the title was assumed to be good, if there were no liens upon the property. The time will be shown by reference to the deed. I understood at the time, that Skinner was about to loan Calwell some money to be secured by deed of trust on the property, if the examination, I was to make, proved satisfactory. I went to the office for that purpose and found the deed of trust to Joel McPherson to secure the debt to P. A. Prindle and others, and whilst engaged in the examination I met with said McPherson, who according to my recollection, stated, that Calwell had stated or afterwards stated, that all the debts embraced in that deed were paid. I acted upon that assurance in expressing my opinion to Skinner, which was favorable to the title. I did not find the register of the judgment against Calwell in favor of the Commonwealth of Virginia. Whether I searched for judgments or not I do not now remember.”

It is proper to remark here, that on the 9th day of September, 1872, the said Calwell executed to said Samuel Price, trustee, a deed of trust on all the property at Dry Creek, near the White Sulphur Springs in Greenbrier county, where the said Calwell then resided, embracing the tract of land there situ-ateof thirty-five acres more or less, it being (as recited in the deed) all which the said Calwell then owned with the hotel-buildings,cabins, mineral-waters and all the appurtenances and also some personal property in the said deed mentioned, in trust to secure T. Skinner in a debt of $8,000.00, payable in four years with interest from date. Thisdebt is reported in the commissioner’s report as being third in priority on realty, &c., .and is provided for in the decree of the 20th of November, .1878, as the third class in favor of Susan M.. and Maria M. Constable,- the debt having been assigned to .them. This deed, seems to have been admitted to record in the recorder’s office of Greenbrier county, on the 30th day of September, 1872, The reading of the re-taken deposition of said E. S. Calwell is excepted to by Prindle’s administrator, because the deposition of the witness had already been taken and filed once in the suit upon the same matters, concerning which he is now again re-examined, and because it is not competent for the plaintiff to re-examine him without leave of the court, and his testimony as hereinbefore given has been decided by the circuit court as well as the Supreme Court of Appeals to be incompetent.

The plaintiff, Mathews, administrator, took and filed in the cause the depositions of James Withrow, James Perkins and Septemia Barnett. Withrow in his deposition states in substance, that he is the person, before whom the last deposition of said Calwell was taken; that at the time he-did not think Calwell competent to testify, as he regarded him imbecile, at least so much so that he would not have relied upon his testimony; that his (Calwell’s) answers were frequently far from the subject, and only when his attention was called to the question, would he begin again 'to answer, as though he understood what he was about, and before he could get a sentence out, he would wander again, and his attention have to be called to the question ; that only that part of his answers were put down by him, which related to the question or answer.

. James Perkins in his deposition states substantially, that he has knowledge of papers, bonds, notes, &c., in the possession of P. A. Prindle at his death, that his aunt, Septemia Barnett, brought the papers- from Washington City in the year 1864, and sent them by him to James Minor, who made a list of them in his presence; that he called them out to Minor ; that his said aunt had possession of said papers, when -he first saw them, and afterwards James Minor, as before stated ; that said Minor was depot-agent at Charlottsville, Va., and was curator of the estate of P. A. Prindle; that he, Minor, died on the 26th day of October, 1875 .; that there was among said papers a sealed envelope, on which was endorsed “E. S. Calwell ; bond $777.00;” that there was no date that he remembers * that all of Mr. Prindle’s valuable, papers were in separate sealed envelopes and properly endorsed ; that he is pretty certain,that said note or bond was destroyed either there or in Richmond in 1865 by the Federal troops; that his said aunt and he have made during the last twelve months diligent search for the note or bond, and have been unable to find it or any clue to it; that their search was also among Mr. Minor’s papers, which were in his possession; that he was in Mr. Minor’s employment for a number of years prior to his death ; that the night before Sheridan’s raid through there, Mr. James Minor being absent, his brother, Dabney Minor, and he, witness, got together all of said James Minor’s papers they could find, including the Prindle papers, and put them with the desk and safe containing them on the cars and sent them to Richmond ; that they remained in the depot at Richmond till the evacuation of that city by the Confederates, when the Federal troops came in and broke open the desk and safe containing the papers, and destroyed or scattered them in all directions, so that but few of them were found ; that on returniug here he found, that the papers of Mr. Minor, which were left here had also been scattered and destrojmd by the Federal troops; that there was an inventory made of the debts of said Prindle made by Mr. Minor in his, witness’s, presence; that he has that list made in the handwriting of Mr. James Minor and signed by him, which he filed with his deposition as exhibit “ A.; ” that he found the inventory with Mr. Minor’s papers within the last six months.

The said exhibit “ A,” filed with said deposition is headed : “ Bonds, notes and due-bills belonging to the estate of P, A. Prindle.” This exhibit describes twenty-seven notes and bonds on different persons with their amounts and the places of residence of the different debtors, the smallest of which is for $34.00 and the largest is for $20,000.00. In said inventory appears the name of said Calwell thus: “E. S. Cal well, White Sulphur (bond) $777.00.” This inventory is signed at the bottom thereof, “ James Minor.”

Septemia Barnett in her deposition states in substance, that she has knowledge of the papers, bonds and notes of P. A. Prindle in his possession at his death and left by him ; that said Prindle died at her house in 1861, and his papers were left in her possession ; that she carried them to Washington with his remains and brought them back from Washington in 1864, and sent them by James Perkins to Mr. Minor, who had been appointed curator of Mr. Prindle’s estate ; that said Minor was depot-agent at Charlottsville, and curator of Prin-dle’s estate, and he died in 1865; that among said papers there was a bond of E. S. Calwell for $777.00, dated February, 1860, to the best of her recollection, and that was one of the bonds turned over to Mr. Minor; that she asked Mr. Minor not to push Mr. Calwell for the money, as he was a friend of Mr. Prindle as well as of hers, and she believed he was hard run for money at that time; that she does not know what became of the bond ; that it was supposed to have been lost or destroyed by the Federal troops either here at the time of Sheridan’s raid, or in Richmond at the time of the evacuation. Mr. Minor before his death searched for the papers, but could not find the bond, and since his death James Perkins and she have also searched for the boud among Mr. Minor’s papers and elsewhere, without success. As to what became of the papers of said Minor including those of P. A. Prindfe’s estate in the possession of said Minor she says, she only knows, that the day after-Sheridan’s raid she went to the depot at Charlottsville and found that papers of Mr. Minor, which had been left there, had been scattered or destroyed by the troops; that she understood from Mi’. Minor and James Perkins, that valuable papers had been taken from here to Richmond and there lost or destroyed by the Federáis; that James Perkins and she while searching among Mr. Minor’s papers for the Prindle bond found the inventory, which James Perkins has already filed with his deposition marked “A”; that the inventory is made off and signed in Mr. James Minor’s handwriting.

I remark here that it appears that the Thomas order (which is for $757.35) to which reference has been made appears to bear date August the 30th, 1857; and it now appears, that after the date of that order, to-wit: on the second day of August, 1858, the said E. S. Calwell executed to Benejamin F. Weed and William H. Shanklin, trustees, a deed of trust on the tract of land known as the Dry Creek property and its buildings and appurtenances; also a tract of land known as portion of the Brown survey, a tract of land on the Sweet Springs road known as the Berth survey, and a tract of land one and one half miles east of White Sulphur Springs on the James river and Kanawha turnpike road, and all the furniture in and about the Dry Creek'Hotel, and also horses, cows, farming utensils and one negro woman to secure the sum' of $20,000.00 due from said E. S. Calwell to P. A. Prindle, which said sum of $20,000.00 to bear interest from the said 2d day of August, 1858 ; and the date of the deed of trust to secure the said debt of $777.00 to said Prindle is the 10th day of August, 1860. How the $20,000.00 debt was paid does not appear; but it is not claimed to be due iu this suit. It also now appears that on the 29th day of November, 1855 the said E. S. Calwell executed to William H. Shauklin, trustee, a deed of trust on thirty-eight acres of land called Dry Creek and a negro woman and other personal property in, about and belonging to the Dry Creek Hotel to secure among other debts, a debt to P. A. Prindle due by note in the sum of $850 or thereabouts. It also now appears, that on the 4th day of August, 1855, only a few months prior to'the date of the last named deed of trust, the said E. S. Calwell made to said Joel McPherson, trustee, a deed of trust on one slave named Sarah, growing crop on the Dry Creek farm, wagons, horses, cows, farming utensils and also all of the household and kitchen furniture belonging to Dry Creek Hotel to secure several debts, among which is a debt to P. A. Prindle of $1,130.00. It does uotappear how the two last named debts secured as aforesaid were paid or settled, and neither of them is claimed to be due or unpaid in this suit. The said deed of trust for $20,000.00 was executed in less than one year after the date of said Thomas order; and the deed of trust of the 10th day of February, 1860, for the said $777.00 was executed some two and a half years after the date of said Thomas order; so that said Calwell executed two deeds of trust to secure the two several debts, (including the deed of trust included in this suit) to said Prindle acknowledging two several existing debts of specified amounts after the date of said Thomas order.

It seems to me, that the deposition of said E. S. Calwell as retaken and filed is not competent or proper to be read as evidence in the respects and for the reasons substantially as stated in the opinion heretofore rendered and.given in said cause of Calwell v. Prindle’s adm’r, 11 W. Va. 307" court="W. Va." date_filed="1877-09-10" href="https://app.midpage.ai/document/calwell-v-prindles-admr-6591801?utm_source=webapp" opinion_id="6591801">11 W. Va. 307. Nothing has occured in the case since that decision to render said deposition admissible as evidence for any purpose except the part thereof, which, it was then held, might be read.

The declarations of Joel McPherson, the trustee in the said deed of trust of the 10th of February, 1860, testified to by Samuel Price as to the debt being paid, it seems to me, cannot be read as against Prindle or his personal representatives as evidence of the payment or non-existence of the Prindle debt or for the purpose of estopping Prindle or his personal representative from asserting the same against the property covered by said deed of trust. The power of the trustee over the legal estate vested in him exists only for the benefit of the cestui que trust. No act or negligence of the former can prejudice or narrow the title of the latter. 3 Ves. 127, 341; 2 Fonb. 170; 16 Ves. Jr. 26; 1 H. & M. 49. His deed it is true will pass the legal title. 6 Munf. 358, 367. But it will not avail against the cestui que trust in equity, except indeed in the single case of an alienation to a purchaser without notice, the trustee being in possession, an event that can scarcely ever occur, since in tracing the title the purchaser would in almost every conceivable instance be led to a discovery of the trust. 1 Mad. 366 ; 2 Fonb. 170; 4 Johns. C. C. 138. Should such a case occur, the remedy of the cestui que trust would be against the trustee, who would be bound to make good the trust. 2 Fonb. 170, 173; See 2 Tucker’s Com. side p. 437 ; See also Wolfe v. Bate, 9 B. Mon. 210; 2d ed. of Hill on Trustees top p. 388, side p. 274, note 1, and cases there cited. It is doubtless true, that for some purposes notice to the trustee is in effect notice to the cestui que trust. But from this it cannot be inferred or held, that the cestui que trust is bound by the acts or declarations of the trustee, and especially of a trustee of the desription of the one created by the deed of trust of the 10th of February, 1860. Upon the whole it seems to me, that the actual payment of said trust-debt of the 10th of February, 1860, is not proven.

Are the facts and circumstances appearing in the case sufficient to authorize or justify us in presuming the payment of said debt ? A legal presumption of payment of a bond or covenant given for the payment of money does not arise from mere lapse of time, where the bond or covenant has not been due for twenty years before commencement of suit or proceedings for the recovery of the amount thereby due and payable. If a shorter period, even a single day less than twenty years, has elapsed, the presumption of satisfaction from mere lapse of time does not arise. While the mere lapse of twenty years without explanatory circumstances affords a presumption of law, that the debt is paid, even though it be due by specialty, still payment may be inferred by the jury from circumstances with the lapse of a shorter period of time than twenty years. When an action is brought on a bond or covenant for the payment of money, if twenty years elapse between the time of its becoming due and of the institution of the action or proceeding, the defendant may without pleading the statute of limitations rely upon presumption of payment; and upon issue joined in plea of payment payment may be inferred by the court or jury from circumstances, coupled with a lapse of a shorter period than twenty years. Sadler’s adm’r v. Kennedy’s adm’x, 11 W. Va. 187" court="W. Va." date_filed="1877-09-10" href="https://app.midpage.ai/document/sadlers-admr-v-kennedys-admx-6591782?utm_source=webapp" opinion_id="6591782">11 W. Va. 187; Hale et al. v. Pack’s ex’rs, 10 W. Va. 145" court="W. Va." date_filed="1877-04-28" href="https://app.midpage.ai/document/hale-v-packs-exors-6591694?utm_source=webapp" opinion_id="6591694">10 W. Va. 145; Perkins adm’r v. Hawkin’s adm’r, 9 Gratt. 656; Goldhawk ex’r &c. v. Duane, 2 Wash. C. C. 323" court="None" date_filed="1808-10-15" href="https://app.midpage.ai/document/goldhawk-v-duane-9298696?utm_source=webapp" opinion_id="9298696">2 Wash. C. C. 323.

As we have seen Charles S. Wallack qualified as executor of said Prindle deceased in the District of Columbia on the 13th day of May, 1861, about the time of the commencement of the late war between the Government of the United States and the Confederate States; and James Minor was appointed curator of the estate of said Prindle deceased by the Hustings court of the city of Richmond on September 21,1861, which was shortly after said war commenced and three years before its termination; and Alexander Mathews after the termination of the war and after the formation of the State of West Virginia, and after she had extended and enforced her jurisdiction over the said county of Greenbrier; and on the 7th day of February, 1876, was appointed administrator of said Prindle deceased in this State. This appointment of said Alexander Mathews as administrator as aforesaid was according to the principles settled in Clay v. Robinson, adm’r, 7 W. Va. 348" court="W. Va." date_filed="1874-03-02" href="https://app.midpage.ai/document/clay-v-robinson-6591433?utm_source=webapp" opinion_id="6591433">7 W. Va. 348, 356, 357. As we have seen, the deed of trust from said Cálwell to Joel McPherson to secure the said debt to said Prindle was executed the 10th day of February, I860; and in said deed of trust the said Cahvell expressly covenanted and agreed, that he would pay and fully discharge each of the debts mentioned in said deed of trust on or before the expiration of two years from the date of said deed. The deed of trust then did not mature before the 10th day of February, 1862, after the commencement and during the continuance of the said war, and from that pei’iod until the trustee in said deed at the instance of said Mathew’s administrator advertised the property to be sold by him under said deed of trust was only about fourteen years without deducting the period, during which the war continued, which perhaps under the principles settled by the third section of the syllabus in the case of Hale et al. v. Pack’s ex’rs, 10 W. Va. 145" court="W. Va." date_filed="1877-04-28" href="https://app.midpage.ai/document/hale-v-packs-exors-6591694?utm_source=webapp" opinion_id="6591694">10 W. Va. 145, should be done in this case. But I do not decide that question at this point, as under the view, which I take of the case, it is unnecessary.

It seems to me without deducting the period of the war from the said fourteen years, that under the facts and circumstances appearing we are not authorized under the law to presume or infer, that said debt of $777.00 with its interest or any part thereof, has been paid or had been paid, before the said Calwell filed his bill of injunction, or the said property was advertised for sale under said deed of trust by said trustee, and that therefore the said circuit court did not err in overruling the first exception to the reports of commissioner Withrow by its decree of the 20lh day of November, 1878, so far as it relates to the debt allowed therein in favor of P. A. Prindle’s administrator. I am farther of opinion because of the evidence of Samuel Tuckwiller, who was the executor of David Tuckwiller, that the said court did not err in its said decree in sustaining said first exception to said reports so far as it relates to the debt allowed in favor of Tuckwiller.

I now proceed to enquire, whether the said circuit court erred in overruling the second exception filed to the said reports of commissioner Withrow in and by its said last named decree. In order to arrive at a correct understanding and conclusion upon the questions involved in this proposition, it is essential to recur briefly to the history and legislation of the re-organized government of Virginia at the city of Wheeling, The convention of delegates, which tnef at the city of Wheeling on the 11th day of June, 1861, adopted a declaration entitled a “ declaration of the people of Virginia;” and on the 19th day of June, 1861, in acooi’dance with the said declaration passed an ordinance for the re-organization of the State-government. It declared that the general assembly elected on the 28d day of May, 1861, and those elected to fill vacancies, who should qualify by taking the oath prescribed by the convention, should constitute the Legislature of the State and assemble at Wheeling on the 1st day of July succeeding. On the 20th day of June in conformity to an ordinance the convention elected a governor and other executive officers for the State. The convention afterwards adjourned to re-assemble on the 1st Tuesday in August thereafter. The first Legislature of the re-organized government of Virginia met at Wheeling on the 1st day of July, 1861.

Pursuant to adjournment the convention re-assembled on the 6th day of August, 1861. On the 20th day of August, 1861, the convention passed an ordinance to provide for the formátion of a new State out of a portion of the State of Virginia, by which it was ordained, that a new State, to be called the State of Kanawha, should be formed and erected, including within its boundaries certain counties therein named. At the time of voting on the question of forming this State out of Virginia, the voters were authorized to vote for delegates to a convention to form a Constitution for the government of the proposed State. This convention was authorized to include within the proposed State the county of Greenbrier and other counties named, and such other counties not named as lay contiguous to the counties named, if the said counties or either of them by a majority of the votes given should declare their wish to form a part of the proposed State and should elect delegates to the convention. The governor was required on or before the 15th day of November, 1861, to ascertain and proclaim the result of the vote, and if a majority of the votes given by the counties named should be in favor of the formation of the new State, he was to call the convention in Wheeling on the 26th of November, 1861. The convention was required to frame a Constitution for the new State, and submit it for ratification or rejection to the qualified voters on the 4th Thursday of December following., It also made-the duty of the governor to lay before the Legislature at its next meeting for its consent according to the Constitution of the United States the result of the vote, if it was found, that a majority was in favor of the new State and also in favor of the Constitution proposed. It was provided, that the new State should take upon itself a j list proportion of the public debt of the Commonwealth of Virginia, prior to the 1st day of January, 1861, to be ascertained by charging to it all State expenditures within its limits and a just proportion of the ordinary expenses of the State government, since any part of it was contracted, and deducting therefrom the moneys paid into the treasury of the Commonwealth from the counties included within the new State during the same period. It was also provided, that when the consent of the Legislature to the formation of the new State should be obtained, it should forward the same to the Congress of the United States together with the Constitution and request, that .the new State be admitted into the Union. The convention then on the 21st of August, 1861, adjourned ; and unless called by the president or the governor by the first Thursday in January, 1862, it was to remain adjourned sine die.

Under the ordinance the vote was taken in August, 1861, and resulted in favor of the formation of a new State. At the same time delegates were elected to the convention to form a Constitution for the new State. The last named convention assembled in Wheeling on the 26th day of November, 1861; and after having framed a Constitution, which it directed to be submitted to the people on the 3d day of April, 1862, it adjourned on the 18th day of February, 1862. This Constitution changed the name of the new State from that of Kanawha to that of West Virginia. On the day prescribed the vote was taken on the adoption of the Constitution and resulted in its adoption. The Legislature of the reorganized government of Virginia met in Wheeling in extra session on the 6th of May, 1862, and by an act passed on the 13th of the same month gave its consent as the Legislature of Virginia to the formation and erection of the new State within the jur-diction of Virginia. The act, which passed on the 13th day of May, 1862, giving the consent of the Legislature of Virginia to the formation of the new State required, that the act together with a certified original of the new Constitution for that State should be transmitted by the executive to the senators and representatives of the State of Virginia with the request to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union.

On the 31st day of December, 1862, an act was passed by Congress giving its consent to the admission of'the State of West Virginia into the Union, requiring however an amendment to be made in the Constitution of the new State as a condition precedent to its admission. See the act of Congress. The act of Congress declared, that the constitution was republican in form and enacted “that the State of West Virginia be and is hereby declared to be one of the United States of America and admitted into the Union on an equal footing with the original States in all respects whatever, and until the next general census shall be entitled to three members in the House of Representatives of the United States. The act • of Congress further provided: “that whenever the people of West Virginia shall through their said convention and by a vote to be taken at an election to be held within the limits of the said State at such time, as the convention may provide, make and ratify the change aforesaid and properly certify the same under the hand of the president of the convention, it shall be lawful for the President of the United States to issue his proclamation stating the fact, and thereupon this act shall take effect and be in full force on and after the date of said proclamation.”

By reason of this action of Congress the convention reassembled on the 12th day of February, 1863, made the change required on the 17th of the same month, referred the question to the people for ratification or rejection, the vote to be taken on the 26th day of March following. The vote was taken at the appointed time, and the Constitution as amended was rat-fied. The result was certified by the president of the convention to the President of the United States; and in compliance with the act of Congress his proclamation was issued on the 19th of April following, declaring the fact, and that at the expiration of sixty days thereafter the new State of West Virginia would constitute one of the States of the Union. The convention prior to its adjournment in February, 1863, provi-dec! that if a majority of the votes cast at the election in March should he in favor of the adoption of the amended Constitution, then an election should be held on the fourth Thursday of May to choose members of both branches of the Legis-,ature, a governor, &e. This election was held; and on the 20th day of June, 1863, the State of West Virginia became one of the States of this Union.

The 8th section of the 8th article of the Constitution of the State of West Virginia provides, that “An equitable proportion of the public debt of the Commonwealth of Virginia, prior to the first day of January in the year one thousand eight hundred and sixty-one, shall be assumed by this State; and the Legislature shall ascertain the same, as soon as may be practicable, and provide for the liquidation thereof, by a sinking fund sufficient to pay the accruing interest and redeem the principle within thirty-four years. On the 3d day of February, 1863, some nine months after the Legislature of the reorganized government of Virginia had given the consent of Virginia to the formation of the new State of WestVirginiaand some time after Congress had passed said act, the General Assembly of Virginia passed an act entitled “An act transferring to the proposed State of West Virginia, when the same shall become one of the United States, all this State’s interest in property, unpaid and uncollected taxes, fines, forfeitures, penalties and judgments, in counties embraced within the boundaries of the proposed State aforesaid,” which act isas follows:

“1. Be it enacted by the General Assembly of Virginia, That all property, real, personal and mixed, owned by or appertaining to this State, and being within the boundaries of the proposed State of West Virginia, when the same becomes one of the United States, shall thereupon pass to and become the property of the State of West Virginia, and without any other assignment, conveyance, transfer or delivery than is herein contained ; and shall include among other things not herein specified, all lands, buildings, roads and other internal improvements, or parts thereof situated within the said boundaries, and now vested in this State, or in the president and directors of the boards of the literary fund, or the boards of public works thereof, or in any person or persons, for the use of this State to the extent of the interest and estate of this State therein ; and shall also include the interest of this State, or of the said president and directors, or of the said hoard of public works, in any parent bank or branch doing business within the said boundaries ; and all stocks of any other company or corporation, the principal office or place of business whereof is located within the said boundaries standing in the name of this State or of the said president or directors, or of the said boards of public works, or of any person or persons, for the use of this State.

“2. Be it further enacted, That all unpaid and uncollected arrearages of taxes on lauds, town lots, property tax, capitation tax, license tax, militia fines, fines imposed by courts, forfeitures and penalties, belonging to the State in the hands of the sheriffs, collectors or individuals, in any or all of the counties embraced within the boundaries of the proposed State of West Virginia, as also all bonuses on the capital stock of any bank, taxes on the dividends declared by any bank, savings institution or insurance company; dividends on stock owned by the State, or by the board of public works, or the president and directors of the board of the literary fund, in any bank, bridge, or other corporation in any one of.the counties aforesaid ; also taxes on seals, deeds, wills, writs and other legal processes due from the clerks of the courts, notaries public or the Secretary of the commonwealth; taxes on passengers and tonnage due from railroad companies, taxes on bank notes or other property transported by express companies within the counties aforesaid; also all fines, forfeitures and penalties incurred by railroads, express companies or other parties or persons within the counties aforesaid; also all judgments, decrees or penalties incurred by officers of the State, railroad or express companies, or other persons before or since the reorganization of the state government at the city of Wheeling; also all suits and their results now pending in the name of the board of public works, or of the president and directors of the board of the literary fund in any court of any of the counties aforesaid; also all taxes on lands, town lots, property tax, capitation tax, license tax, assessed in the comities aforesaid, and due the State for the year eighteen hundred and sixty-three, in the hands of the officers of the State or individuals, together with all the rights of the State, or of the board of public works, or of the president and directors of the board of the literary fund to any and all money and claims in the connties'aforesaid that may not be specifically mentioned in this act, but that rightfully belong to the State or corporations for the use of the State, shall be the property of the State of West Virginia, when the same shall become one of the United States.

“3. It shall be the duty of all sheriffs or collectors of the public revenue, also of all presidents or other officers of railroads, express, bridge or internal improvement companies, presidents and other officers of savings banks and insurance companies, clerks of courts, notaries public, the secretary of the commonwealth, and of individuals owing or having money in their hands due the State, or the boards of public works, or the president and directors of the board of the literary fund, in any of the counties aforesaid, to pay the same into the treasury of the State of West Virginia, when the same shall become one of the United Slates.

“4. Be it further enacted, For the purpose of carrying this act into effect, that suits may be brought in the name of this Commonwealth for the use of the State of West Virginia, when it becomes one of the United States on any bond or claim which shall pass to or become the property of the State of West Virginia by virtue of this act.

“5. Be it further enacted, That if the appropriations and transfers of property, stocks and credits provided for by this act take effect, the State of West Virginia shall duly account for the same in the settlement hereafter to be made with this State; Provided, That no such properly, stocks and’credits shall have been obtained since the reorganization of the state government.

"6. It shall be the duty of the auditor of public accounts, the secretary of state, the treasurer, and the adjutant general of this Commonwealth to procure fit and proper blank-books for the purpose, and cause to be transcribed therein true copies of all such records, official acts, orders, minutes and memo-randa, and like copies of original papers upon which any such official action was based, which from its locality or general Slate interest appertains to and will be useful and advantageous to the State of West Virginia: and the officers aforesaid shall severally certify to the governor of this Commonwealth the correctness of their respective copies ; and it shall be the duty of the governor to certify to all whom it may concern, the official character of such officers so certifying under the great seal of this Commonwealth, and deliver all such copies to the governor of West Virginia, when his election is officially declared for the use of said State of West Virginia.

“ 7. This act shall take effect when the proposed State of West Virginia shall become one of the United States.”

It is claimed by the counsel for the appellant, that this act was void, because the State of West Virginia was not in existence at the time of its passage. This is claimed upón the common law principle applying to deeds — that there can be no valid deed without a grantee as well as grantor. This principle, I think, cannot be held to apply to an act of the Legislature like this or perhaps acts similar in character. The common law may be modified or repealed by the Legislature in its applicability to a particular subject or matter or act, or generally. It is true that the act never could have been operative, if the State of West Virginia had not become due of the States of the Union ; and it was manifestly intended by the Legislature, that it should not be operative for any purpose, until that event happened. At the time of the passage of the act, as we have seen, the new State was in contemplation, and in fact had advanced far towards becoming a State of the Union; and the Legislature of Virginia, at Wheeling, evidently considered, that the new State would soon become an accomplished fact. Hence the act was passed with the express provision contained in it, that the act should take effect “ when the State of West shall become one of the United States.” And in my opinion the act did take effect on the instant the State of West Virginia became one of the States of the Union, which was the 20tb day of June, 1863. As well might it be claimed, that the said act of Congress admitting the State into the Union was void and inoperative, because the admission was on its face subject to a condition precedent. I think the Legislature of Virgiuia had the power to pass the act to take effect, when the contingency therein mentioned happened, and that when the contingency did happen the act became operative and valid so far at least, as the State of Virginia was concerned. ....

■; But it is further claimed, that the act never became operas tive, until the Staté of West Virginia accepted it, and that she never did accept it until the passage of the act of the 20th of December, 1875, and the 23d section thereof. This section provides, that “ the auditor shall institute , all necessary appropriate measures for the collection of all-claims for taxes and other demands transferred by the Commonwealth of Virginia to this State by an act of the General Assembly of said Commonwealth entitled ‘An act transferring to the proposed.Stateof West Virginia, when the same shall become one of the United States, all the State’s interest in property, unpaid and uncollected taxes, fines and forfeitures, penalties and judgments, in counties embraced within the boundaries of the proposed State aforesaid,’ passed on the 3d day of February, 1863. Acts of 1875, p. 126. This act does not in express words accept the said Virginia act. It is a direction, to the auditor to proceed, to collect the claims'■ taxes, &e.; transferred by said Virginia act. The very language of the. act strongly indicates, that the Legislature at the time of . its passage regarded the said claims, taxes, &c.,” as already transferred to and vested in the State of West Virginia and as ■ being hers by virtue of said Virginia act.

But the said act of 1875 is not the first act, which tlie Legislature of West Virginia passed in relation to claims, taxes, &c., transferred by the said Virginia act. By the 3d section of an act passed June 26, 1863, it is provided, that “the sheriffs, elected and qualified under the Constitution of this State and the ordinance of the late convention of those counties, in which the taxes for the years eighteen hundred and sixty-one and eighteen hundred and sixty-two, in whole or in part, have not been collected, and where the commissioner’s books -have not been placed in the hands of a collecting officer, shall proceed to collect, and account for the taxes for the years eighteen hundred and sixty-one and eighteen hundred ;and .sixty-two.” Acts of 1863, p. 5. This act was passed by the Legislature of West Virginia on the 6th day after, she'became a State. See also Acts of 1866,. p, 48, ..(asserting her. right to-Virginia’s interest in the Exchange Bank at Weston). See also Acts of 1865, p. 36, releasing John Slack, late sheriff of Kanawha county, and his sureties from paying a judgment obtained against them in the circuit court of the city of Richmond, bearing date May 10, 1859, for $15,680.40 with interest at twelve per centum per annum and damages and costs for certain taxes and liabilities alleged to be due the State of Virginia from said Slack as sheriff as aforesaid for the year 1857, and from a judgment of same court of like date for $16,068.50 with interest at six per centum per annum and damages and costs for similar taxes and liabilities for the year 1858. See also Acts of 1866, p. 53, whereby the Legislature released the securities of Joshua H. Staats, late sheriff of Jackson county, from all liability to the State of West Virginia including all judgments rendered against them as such surities in the city of Richmond. See also Acts of 1866, p. 115, (transferring State’s interest in roads and bridges to counties). Also Acts of 1867, p. 133, (transferring James River and Kanawha road to counties,) and also Acts 1867, p. 88, (transferring bank-stock in bank at Weston to school-fund.)

From the foregoing acts it is manifest, that the Legislature of this State treated a large part of the property taxes, judgments, &c., transferred to the State by said Virginia act from the beginning as belonging to the State under and by virtue of said Virginia act; and although the Legislature of this State did not by an act in express terms “ accept the said Virginia act,” yet it is plain, that the Legislature of this State did by clear implication accept the said Virginia act (if any acceptance were necessary) and it must be so considered and held. The said Virginia act making the transfer was clearly beneficial to this State. ít seems to me however, that under the circumstances, under which said Virginia act was passed considering its purposes and character it must be considered, that it became operative and effective for its purposes and objects on the 20th of June, 1863, the time, when this State became one of the United States, unless it appeared, that this State then or afterwards dissented from or refused to accept the provisions of said Virginia act expressly or by implication. See as bearing on the subject Skipwith’s ex’rs v. Cunningham, 8 Leigh 271, 281-290. In this case it was held, that it is not necessary to the validity of a deed of trust, that, it should be executed by the cestui que trust. The deed operates to pass the .legal title so soon as executed by the grantor and the trustees, and can only be avoided by the dissent, express or implied of the cestui que trust. A deed of trust conveying land for the benefit of creditors, which is executed by the maker of the deed and the trustees and duly recorded, before a judgment is obtained against the maker, will intercept the lien of the judgment, although the creditors may not have given their assent to the deed until after the judgment. In such case even in a court of equity the equity of the judgment-creditor will generally be considered inferior to the equity of the creditors claiming under the deed. See also Jackson ex. dem. Pintard v. Bodle, 20 Johns. 184" court="N.Y. Sup. Ct." date_filed="1822-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-pintard-v-bodle-5474535?utm_source=webapp" opinion_id="5474535">20 Johns. 184; Jackson ex dem. Ten Eyck et ux. v. Richards, 6 Cow. 617" court="N.Y. Sup. Ct." date_filed="1827-02-15" href="https://app.midpage.ai/document/jackson-ex-dem-ten-eyck-v-richards-5464800?utm_source=webapp" opinion_id="5464800">6 Cow. 617.

Entertaining these views I am of opinion, that the said two judgments mentioned and referred to in the second exception to the report of commissioner Withrow continued to belong to the State of Virginia until the 20th day of June, 1863, at which time they were by virtue and force of said Virginia act transferred to the State of West Virginia, and she becamq the owner thereof and has continued to be such owner from thence hitherto.

At the time, when the said judgments were rendered, the county of Greenbrier and all the other counties within the State of West Virginia were part and parcel of the State of Virginia and constituted a part and parcel of her jurisdiction as a /State, and they so continued, until West Virginia became one of the United States. As soon as said judgments were rendered, they became by operation of law liens upon all of the real estate of said Cal well deceased in the said county of Greenbrier. Code of Va. of 1860 ch. 53 § 6. No statute of limitations could or did run against the State of Virginia as to said judgments certainly prior to the 20th day of June, 1863; for the statute law of Virginia provided, that no stati ute of limitations, which shall not in express terms apply to the Commonwealth, shall be deemed a bar to any proceeding by or on behalf of the same. Code of 1860 ch. 42 § 23. This however was the settled law in the absence of such statute-law. . Angel- on Lim. 6th ed. ch. 5 §§ 34, 35, 36, 37 and cases there cited in notes; Nimmo v. Commonwealth, 4 H. & M. 57; Gore v. Lawson, 8 Leigh 458; Levasser v. Washburne, 11 Gratt. 572" court="Va." date_filed="1854-07-15" href="https://app.midpage.ai/document/levasser-v-washburn-8481499?utm_source=webapp" opinion_id="8481499">11 Gratt. 572; Kemp v. Commomwealth, 1 H. & M. 85; City of Wheeling v. Campbell, 12 W. Va. 67, 68. The Code of Virginia of 1860 so far, as not repugnant to the Constitution of this State and not amended or repealed by the Legislature, continued to be law in this State until the Code of 1868 of this State took effect on the 1st day of April, 1869.

At the time'the said judgments became transferred to this State, no statute of limitations had commenced to run against théin and éould not for any purpose, as we have seen, and they were severally liens upon the lands of said Calwell, deceased, in the said county of Greenbrier, whether docketed or not. When'and after the said'judgments became transferred to this State, no statute of limitations could or did run against them so as to effect her interest and rights therein for any purpose for the same reasons, that no statute of limitations' 'could or'did run against them before the transfer until the period hereinafter mentioned. In Glover v. Wilson, 6 Barr (Pa.) 290, it was held, that “ where a bond was given as’ a security by a-collector of taxes, and his liability on the- bond fbf the- county-rates has been barred by the statute of limitations, but that for State-taxes remains, under- a general plea of the-statute he'and his sureties are liable for both county anil State-taxes/”- In this case the judge, who delivered thé P'pihion of the court; at page" 293' says: “ As against the corihty alone we think the plea of the statute would be an effective bar ; for a collector of public taxes is a public officer, jind as the cause of action upon this-bond accrued at the end of three months from the delivery of the tax-duplicate to him nioie than seven years had elapsed before the commencement of tfris action. But-the county is not the only party beneficially interested in the bond. As we have seen the Commonwealth lias also air equitable title to the security afforded by it, and an interest in the action instituted upon it. Nowit is settled,'that on grounds of public policy statutes of limitations do not extend to the Commonwealth, unless she be expressly'named and her rights waived; arid this,- whether'it bfe'in !the case of a personal action against a surety i n an official boridjor entries'on land, or other like cases; and in pérsonal actions it matters not whether the suit be in the name of the Commonwealth or in the name of some person for her use; for if is not the form of the action that is to govern the operation of the statute. Commonwealth v. Baldwin, 1 Watts. 54; Ramsey’s Appeal, 4 Watts. 71; McKeehan v. The Commonwealth, 3 Barr 151. Nor does it, I conceive, make any difference that another party may also be interested in the securtiy taken in part for the use of the State,” &c. '

This continued to be the law in this State in reference to the statute of limitations as against the State, until the Code df 1868 of this State took effect. The 20th section of chapter 35 of this Code provides, that “ every statute of limitations, unless otherwise expressly provided, shall apply to the State, but-as to claims heretofore accrued the time shall be computed as commencing when this chapter takes effect.” The said chapter 35 did not take effect until the 1st day of April, 1869, and neither at the time of the order of reference made in this cause 'to ascertain and report the liens, nor at the time the petition of the State of West Virginia was filed in these causes setting up and claiming said judgments as liens on the lands of said-Calwell involved in this suit and claiming the benefit thereof; were the said judgments barred by the statute of limitations.' The said petition of the State of West Virginia was filed in these causes on the 16th day of November, 1877; ■not ten years after the said 20th section of chapter 35 took éffect. At the time this State filed its said petition in these causes, she could have brought an action of debt in the circuit court of the county of Greenbrier in the name of the Commonwealth of Virginia for her use for the recovery of said judgments; and no statute of limitations in force in this State could have barred a recovery upon said judgments for the amounts thereof; sufficient time had not elapsed under the provisions of said 20th section of chapter 35.

Entertaining the foregoing views it is my opinion, that neither at the time'of the order of reference made in these causes to report-the liens on the lands of said Cal well nor at the time of the filing of the said petition in these causes by this State were said judgments barred by the statute of limitations, so as to prevent a recovery therefor by this State in ah action of debt.- Although under-the said 20th section of said chapter 35 the statute of limitations as to the revival of judgments rendered in this State in favor of the State or to the right to issue executions thereon or to recover therefor in an action at law, may operate as a bar it is gravely maintained and has been held in some of the States, I believe, that the statute of limitations does not operate to bar the enforcement of a judgment-lien in a court of equity, but as I do not deem it material or necessary to decide that question in these causes under the views I entertain in relation to them, and as that question has not been specially argued by the counsel in these causes, I deem it unnecessary to express any opinion now on that question.

But it is claimed by the counsel of the appellants, that the said judgments ceased to be liens within the limits of this State on the 20th day of June, 1863, and that said judgments were not docketed and indexed in the clerk’s office of the county court of Greenbrier county, so as to preserve their liens upon the real estate of the said Calwell as against a purchaser thereof for valuable consideration without notice. For convenience I propose to consider both these questions in connection with each other. Chapter 186 of the Code of Virginia of 1860 provides as follows: “3. In the following section, the word “judgment” shall include any bond or recognizance which has the force of a judgment. 4. The clerk of each county and corporation court shall keep in his office, in a well-bound book, a judgment docket, in which he shall docket without delay any judgment in this State, when he shall be required to do so by any person interested, on such persons delivering him, if the judgment be not in his court or office, an authenticated abstract of it. In such docket there shall be stated in separate columns the date and amount of the judgment, the date of docketing it, the alternative value of any specific property secured by it, and the amount and date of any credits on the judgment with the names, description and residence of the parties, so far as they appear in his office or in such abstract. Every judgment shall, so soon as it is docketed, be indexed in the name of each defendant therein. If a clerk fail to do anything required of him by this section, he shall pay a fine of not less than thirty nor more than three hundred dollars to any person, who will prosecute therefor. 6. Every judgment for money rendered in this State] heretofore or hereafter against any person shall be a lien on all the real estate, of or to which such persons shall be possessed or entitled, at or after the date of such judgment, or if it was rendered in court, at or after the commencement of the term at which it was so rendered, except as follows: 7. A judgment rendered before the commencement of this act shall as against a purchaser or creditor, claiming under a deed made or judgment obtained before the day of such commencement, or as against the heirs or devisees of a person dying before that day, affect no more of such real estate, than would have been liable thereto under the laws in force on the day before this chapter takes effect. 8. No judgment shall be a lieu on real estate as against a purchaser thereof for valuable consideration without notice, unless it be docketed according to the third and fourth sections of this chapter in the county or corporation, wherein such real estate is, either within a year next after the date of such judgment, or ninety days before the conveyance of such estate to such purchaser. 9. The lien of a judgment may always be enforced in a court of equity,” &c.

At common law, lands of the debtor could not be taken to satisfy his debts except judgments due the King ; and judgments therefore did not operate as liens on land. But by the statute of Westm. 2, 13 Edw. I, ch. 18, substantially adopted in Virginia, (1 Rev. Code, ch. 134, § 1, pp. 524 — 527), a new execution was provided, the writ of clegii, by which a moiety of the lands of the debtor could be subjected to the satisfaction of the judgment. The statute however did not in express terms give the lien on the land. It provided for the writ, and prescribed the form of it. By its terms the officer was required to deliver to the creditor all the goods and chattels of the debtor, saving the oxen and beasts of his plow, and also a moiety of all his lands and tenements whereof the debtor at the day of obtaining his judgment was seized or at any time afterwards, by reasonable price and extent to have and to hold the said goods and chattels to the creditor as his own proper goods and chattels, and the said moiety as his freehold, to him and his assigns, until that of the judgment be satisfied, (“ until he shall have levied thereof the debt and damages aforesaid.”) It was the judicial construction given to this writ,, that the judgment was said to be a lien on the land. The lien resulted from the mandate of the writ to deliver to the creditor by reasonable price and extent a moiety of all the lands and tenements of the debtor, whereof he was seized at .the date of the judgment or at any time afterwards. The lien was an incident of the writ and depended for its existence and continuance upon the capacity to sue out the writ. As long as this capacity lasted, even although revived after being temporarily suspended, the lien continued, and whenever it ■finally ceased, the lien, which was dependent upon it, was extinguished. Perhaps while a judgment was capable of revival, the judgment might have been enforced. As the mandate of the writ extended to all the lands and tenements, of which the debtor was seized at the date of the judgment or at any time afterwards, it was by force of this mandate also, that the lien of the judgment overreached all subsequent conveyances, although made to purchasers for valuable consideration without notice of the judgment, and extended to all the lands of the debtor within the jurisdiction of the State. ■ ,

In the interest and for the protection of such purchaser's, the act of March 3, 1843, was passed, which provided for the docketing of judgments; and further that “no judgment, decree or bond or recognizance thereafter rendered, should bin.d .the land of any party to the same against a bona fide purchaser for valuable consideration without notice, unless the same .should be docketed in the county or corporation,in which the land lay, within twelve months after the rendition or forfeit- : ure of such judgment, decree, bond, or recognizance, or ninety days before such land shall have been conveyed to such purchaser.” Except as thus modified in respect to purchasers by ■ the act of 1843 the lien of the judgment continued the same in all respects as to its nature, extent, and the mode of enforcing it until the general revision of the laws of 1849, when ■the.law was enacted substantially, as I have quoted it from the Code of 1860. Up to that time as we have seen, it was a mere incident of the writ of digit, resulting by construction from the mandate of the writ, and dependent for its existence and continuance on the capacity to sue out the writ. It was now made for the 'first time as to judgments thereafter to be rendered an express, direct, positive, absolute lien on all the real estate, of or to which the judgment-debtor should be possessed or entitled at or after the date of the judgment, or if it was rendered in court, at or after the commencement of the term, at which it was so rendered, with the same qualification as to purchasers for valuable consideration without notice, as was made by the act of 1843. The lien of the judgment being now express, positive and in no way dependent upon the eligit, and the remedy in equity being performed in practice, the eligit soon fell into disuse and was finally abolished by the Legislature of Virginia. Code of Va. of 1873, ch. 183, § 26 p. 1175. It was also abolished in this State by the Code of 1868. Code of W. Va. ch. 140 sec. 2.

“It,” says Judge Burks in Borst v. Nalle et als., 28 Gratt. 430, “can hardly be said of such a lien as we have described, that it is not a ‘civil right,’ and one of a high order ; seeing that, it is under the law, as it stands, and by force of the law a plain, direct, postivc charge upon real estate. Having once attached it continues, unless it is in some way discharged, as long as the real estate, on which it rests, remains the property of the judgment-debtor. It accompanies the laud in its descent to the heirs, follows it into the possession of volunteers, and even into the hands of purchasers for value, if they have, or even if they do not have notice, provided the judgment is docketed in the manner prescribed by law. It is a mistake to suppose, that the 8th section of chapter 186 of the Code of 1860 was intended to create a lien against the purchaser by docketing the judgment. The lien is created by section 6, and attaches to all the real estate of the debtor except so far, as it is qualified by section 8. The qualification is, that it shall not extend to real estate aliened after judgment to purchasers for value, who have no'notice of the judgment, unless the judgment be docketed in the manner and within the time prescribed. The implication is irresistable, that if so docketed, it shall be a lien; that the lien, which was created by section 6, shall continue as to such purchasers.” Borst v. Nalle et als., 28 Gratt. 423" court="Va." date_filed="1877-03-15" href="https://app.midpage.ai/document/borst-v-nalle-8481918?utm_source=webapp" opinion_id="8481918">28 Gratt. 423, 428, 429, 430, 431 ; Taylor’s adm’r v. Spindle, 2 Gratt. 44, 69; Renick v. Ludington et al., 16 W. Va. 367, 373, 374, 375, 376.

In the case of Gatewood’s adm’r v. Goode et als., 23 Graft, 880, (he syllabus as far as hereiu given is, (bat “at the March term, 1871, of the county court ot Monroe county, a judgment was rendered at the suit o± the Bank of Va. plaintiff v. W. S. and G. the latter living in the county of Bath. Execution of ji. fa. was issued on this judgment and levied on the property of W., and the sheriff returned, after June, 1861, a levy upon the personal property of W., that the property was appraised and offered for sale, and not bringing valuation it was returned. G. died during the war leaving real estate in Bath county and also in West Virginia; and after his death some of his creditors filed their bill in the circuit court of Bath, to subject his real estate to the payment of his debts. The commissioner reported the above judgment as a debt by judgment having priority. A copy of the judgment was certified by the clerk of Monroe circuit court ‘and as such keeper of the records of my office.’ The circuit court confirmed the report. Held 1: The judgment constituted, as between the parties thereto, a lien on the real estate in Virginia belonging to the judgment-debtors or any of them, whether the said judgment-debts or any of them were docketed in the counties, in which the real estate might be, or not. * * 3. That the lien of saidjudgment on the lands of G. in Bath county was neither lost nor impaired by reason of the division of the State of Virginia into two States and the falling of the county of Monroe into the State of West Virginia.” The opinion of the Court authorizes this syllabus.

In this case it was claimed by the counsel for the appellant, that for the purposes of the suit, as it stood in the court below, the saidjudgment could not be regarded as a judgment of the State of Virginia, but should be regarded as a judgment-of a foreign Slate, &c., as it is claimed in the case at bar by counsel for appellants. The 8th section of the 11th article of the Constitution of this State of 1863 provides, that “ such parts of the common law and of the laws of the State of Virginia asare in force within the boundaries of the State of West Virginia, when this Constitution goes into operation and are not repugnant thereto, shall be and continuo the law of this State until altered or repealed by the Legislature,” &c. The plain effect of this constitutional provision was to continue in force from and after the time, when this State became one of the United States, chapter 186 of the Code of 1860 hereinbefore quoted from until altered or repealed by the Legislature of this State. We have seen, that the said two judgments were liens upon the said Calwell’s lands in the county of Greenbrier on the 20th day of June, 1863, when they passed to this State by virtue of the said Virginia act. Did they cease to he such liens at the time they so passed to this State? These judgments were certainly domestic judgments quoad the people and territory embraced within the limits of this State at the time, when they were rendered. They were not rendered in a jurisdiction foreign to them, for they at the time of the rendition thereof were a part and parcel of the territory and people of the State of Virginia. It is not pretended, that the court, which rendered the judgments, had not jurisdiction and authority to render them. The 42d chapter of the Code of Virginia of 1860 provided: “ 1. The auditor of public accounts shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth. 2. The proceeding may be in the circuit court of the city of Richmond. When at law, it may be by action or motion.” These provisions of law were in force, when these judgments were rendered by the circuit court of the city of Richmond, and these judgments were rendered against said Cal well as a surety for a sheriff of Greenbrier county in his official bond given before the county court of said county for the default and failure of said sheriff to pay over taxes, &c., collected by him as sheriff of said county, and which were due from the said sheriff to the Commonwealth of Virginia.

These judgments are based and founded upon contract and the failure to comply with such contract, and I apprehend, that until said judgments were reversed, set aside, annulled or perpetually enjoined by competent authority, or discharged or released in some lawful way, they continued to be liens upon the land of said Calwell in the county of Greenbrier not only up to the time this State became one of the United States, but afterwards. If a judgment rendered in the county of Monroe (which is one of the counties of this State) before the division of the State of Virginia into two States continues to be a lien upon the realty of the judgment-debtor in Bath county, Virginia, after the division under said chapter 186 of the said Code of 1860, as, we see, was held by the Court of Appeals of Virginia, why and on what principle will not a judgment rendered in the circuit court of the city of Richmond in the State of Virginia before said division continue to be a lien after the division upon real estate of the judgment-debtor in Greenbrier county within this State under the provisions of said chapter 186 of said Code of 1860? Suppose the two judgments in question had been rendered against the said Calwell by a court of competent jurisdiction in the county of Greenbrier before the said division, would the judgments have continued liens against the lands of Calwell after the division ? I apprehend it cannot successfully be denied, that they would. Still such judgments would not have been rendered by one of the courts of the State of West Virginia, but by a court of the State of Virginia. The lien of a judgment under the said chapter 186 of the said Code of 1860 was not confined to the lands of the judgment-debtor in the county, in which the judgment was rendered, but extended and attached to all the lands of the judgment-debtor in any and every county within the State of Virginia. Upon such judgment execution could have been issued directed to the proper officer of any county in the State.

If Calwell owned land in the State of Virginia after the said division said judgments constitute liens thereon, which could be enforced in that State. And said judgments could be revived against Calwell’s personal representatives and execution issued thereon in Virginia. I see nothing under the circumstances in the way of this, if it were material. It is true, that after said division writs of execution could no.t have been issued upon said judgments and directed to the sheriff or other officer of a county in this State; but this was not so, because the-judgments were not liens upon the said lands of Calwell in this State, but because no jurisdiction or authority of Virginia after said division had the right or power to exercise jurisdiction or authority within this State or to command or direct any officer of this State to do any act. By the said division the jurisdiction of Virginia became contracted and limited by her then boundaries. Judgments rendered by any competent judicial tribunal in any county of this State prior to the said division continued to be liens upon the lands of the judgment-debtors in this State and in Virginia after the said division, and this upon the principal, that they were domestic judgments quoad the people and territory of each of the States. Judgments rendered in the counties now composing this State by competent authority before the said division have always and in every respect been treated and considered by the courts of this State since the division as domestic judgments in this State; and they are still so considered and treated in every respect, so far as I have knowledge, and upon the principle, on which this is done, the judgments in question are domestic judgments, in so far as relates to the liens thereof upon the lands of said Calwell involved in these snits.

Have the liens of these judgments been discharged or released ? I think not, unless it was accomplished by the adoption of the Code of this State of 1868, which, as we have seen, took effect on the 1st day of April, 1869. It is maintained by the counsel for the appellants, that the Code of 1868 did have that effect, when it took effect, if any lien then existed. Without stopping to consider, whether the Legislature could discharge or extinguish the lien of a judgment founded upon contract in any case by statute, I will proceed at once to enquire and consider, whether the proposition of the counsel for appellants is well grounded. Parts of chapter 139 of the Code of 1868 are as follows : “ 5. Every judgment for money, rendered in this State heretofore or hereafter against any person, shall be a lien on all the real estate, of or to which such person shall be possessed or entitled at or after the date of such judgment, or if it was rendered in court, at or after the commencement of the term, at which it was rendered, except as follows : 6. A judgment rendered before the first day of July eighteen hundred and fifty shall as against a purchaser or creditor claiming under a deed made or judgment obtained before that day, or as against the heirs or devisees of a person dying before that day, affect no more of such real estate than would have been liable thereto under the laws in force at the time such judgment was rendered.” And the 8th section provides as follows : “ 8. The lion of a'judgment may always be enforced in a court of equity.”

Now it will be'observed, that section 5 is in the exact language of the 6th section of chapter 186 of the said Code of 1860. This being so, the reasonable, presumption is in the absence of anything appearing to the contrary, that it was the intention of the Legislature simply to continue the law, as it was, and not to make any change therein. If you give said 5th section a strict technical construction, it will not include judgments rendered in the counties of this State before the division. Such judgments were rendered in the State of Virginia, before this State existed ; and therefore they cannot strietly’speaking be judgments rendered in this State. But such was not the intention of the Legislature; and it has never been so considered by any one, so far as I am advised.

Let us consider the said fifth and sixth sections together and see, whether the meaning and intent of the Legislature is not more apparent. What is meant in the 6th section by “a judgment reudered before the 1st day of July, 1850, shall as against a purchaser or creditor claiming,” &c., affect no more of such real estate than would have been liable thereto under the laws in force at the time such judgment was rendered. Of course in strictness no such judgment could have been rendered in this State. It manifestly refers to judgments rendered prior to the time, when West Vii'gnia became a State. But the said 6th section of said chapter 189 is in substance and meaning precisely the same, as the 7th section of chapter 186 of the Code of I860, which is as follows: “7. A judgment rendered before the commencement of this act shall, as against a purchaser or creditor claiming under a deed made or judgment obtained before the day of such commencement, or as against the heirs or devisees of a person dying before that day, affect no more of such real estate than would have been liable thereto, under the laws in force on the day before this chapter takes effect.” It is proper here to say, that said chapter 186 was enacted in the Code of 1849, which took effect on the 1st day of July, 1850. The clear object of said 7th section was to leave the judgment-creditor, who obtained his judgment prior to the 1st day of July, 1850, the same rights and liens as. he had under the law prior to that day. Thus we see that sections 5 and 6 and 7 of chapter 139 of the Code of 1868 are in substance the same as sections 6, 7 and 8 of chapter 186 of said Code of 1860, the 5th section of the one Code being an exact copy of the 6th in the other and the 6th in the one being in substance and meaning exactly the same as the 7th section in the other, and the 7th section in the one Code being an exact copy of the 8th in the other. This being true, the reasonable presumption ordinarily in such ease is, that the Legislature did not intend to change the law.

But suppose it be admitted, that there may be doubt, as to whether the 5th section of said chapter 139 only comprehends judgments rendered in the State of West Virginia, or that it probably does only comprehend such judgments, if we look alone to said 5th section. If we look at chapter 166 of the Code of 1868, p. 735 (which is the last chapter thereof) we find it enacted in that chapter as follows: “1. All the provisions of the preceding chapters shall be in force upon and after the first day of April, eighteen hundred and sixty-nine; and all acts and parts of acts, of a general nature, in force on the day preceding that day, shall stand repealed, subject to such limitations as may be made by law. 2. Such repeal, except where it is otherwise provided in this act, shall not affect any act done, or forfeitures incurred, or any right established, accrued or accruing before the said first day of April, eighteen hundred and sixty-nine, or suit or proceedings pending on that day, save only that the proceedings thereafter had shall conform, as far as practicable, to the provisions of the foregoing chapters of this act.” We have ascertained, that the liens of said two judgments were liens upon the lands of the said Calwell, deceased, involved in these suits prior and up to the said first day of April, 1869; and I apprehend, that there can be no doubt, that said liens were in these cases “accrued rights” at that time, and being so they stand unaffected, and such rights were not intended to be impaired or destroyed by the Legislature in the adoption of said Code of 1S68. udge Burks says expressly in his opinion in the case of Borst v. Nalle et als., 28 Gratt. at p. 430, that such a lien is a “civil right”; and all the other judges seem to have concurred in his opinion.

I will now proceed to consider, whether the said two judgments were so docketed in the clerk’s office of the county court of Greenbrier county, as to affect subsequent purchasers for value of the lands involved in these suils or any part thereof without notice. I will consider the objections made by counsel of appellants seriatim.

1. It is objected, “that they are not abstracts, but purport on their face to be copies of judgments.” It will be seen by reference to the 4th section of chapter 186 of the Code of 1860, that if the judgment is in the county court of the county, of which the clerk required to docket it is clerk, an abstract of the judgment is not required to be delivered to such clerk, that he may docket the judgment; but in that case it is evidently contemplated, that he shall docket it from the record of the judgment in his office on being required to docket the judgment by any person interested. In that case the law supposes, that the clerk has in his custody the recorded judgment of the court, which is all, that is necessary to enable him to docket the judgment in the judgment-docket-book, which he is required to keep in his office. But where the judgment was not rendered in his court, then an authenticated abstract of the judgment or an authenticated copy of the judgment is necessary for the information of the clerk, 1st, as to there being such a judgment, and 2d, to enable him to docket it. While there is a difference between an authenticated abstract of a judgment and an authenticated copy of a judgment, still it must be admitted, that an authenticated copy of a judgment contains all the information and more than an authenticated abstract of the judgment, and is in fact more reliable for the clerk to act upon. An authenticated copy of a judgment for the purpose of said 4th section includes an authenticated abstract, because it contains all such abstract could and more; and in my opinion the requirement of said section is complied with, when an official copy of the judgment is delivered to the clerk instead of an official abstract of the judgment.

2. It is objected, that “ the dates of the judgments are not given.” I am of opinion, that “March 6, I860,” in the connection and place in which the words and figures are used, do plainly import the date of each of the judgments, and that they import such date so clearly, that no one could be mistaken or misled thereby.

3. It is objected, that the court, in which the judgments were rendered, is not given. The words “ Greenbrier county clerk’s office, to wit,” at the head of one of the copies, and the words, “ The State of West Virginia, Greenbrier county, to wit,” at the head of the other, were manifestly prefixed by .the clerk of the county court of Greenbrier county, as will be at once seen by the words immediatlely following : “ In the circuit court of the city of Richmond, March 6, 1860,” and what follows in each of said copies. The “ circuit court of the city of Richmond” is the court designated by the law. See sections 1 and 2 of chapter 42 of the Code of 1866, supra. The law seems to suppose, that that was a sufficient designation of the court without designating, that the city of Richmond was in the State of Virginia.

4. It is objected, that the names of the parties to said judgments are not given. The plaintiff is stated in the first judgment to be the Commonwealthand the defendant is stated to be “ Edmund S. Calwell, one of the sureties of John E. Lewis, late shereriff of Greenbrier county. First cáse upon a motion instituted and prosecuted by the auditor of public accounts.” The plaintiff in the second judgment is stated to be “ the Commonwealth and the defendant is stated to be Edmund S. Calwell, one of the sureties of John E. Lewis, late sheriff of Greenbrier county, second case upon a motion instituted and prosecuted by the auditor of .public accounts.” The 4th section of chapter 42 of said Code of 1860, expressly provides, that “ every judgment on-any such motion shall be in the name of the Commonwealth.” So that the name of the plaintiff is given as designated and required by the law, and no one could be misled or deceived as to who was the plaintiff in the -judgments.

5. It is objected, that neither of the judgments is properly certified. Each judgment is headed: “In the circuit court of the city of Richmond, March 6,1860,” then the title of each case is given and then the judgment of the court, and at the bottom of the judgments are the words : “A copy teste and then the signature “James Ellet, clerk.” These copies are attested in the usual way attestations of such copies are made and are required to be made by clerks in order to be evidence. See section 5, chapter 176 of the Code of I860, It-is true,-it would perhaps have been more satisfactory, if the clerk had appended to his name “ clerk oí the circuit court of the city of Richmond,” but considering the heading to the copy : “In the circuit court of the city of Richmond,” &c., and the attestation as it appears, I think it is substantially sufficient to meet the requiremenls of the statute.

6. It is objected, that “ the date of the docketing is not given.” The docketing and the date thereof is distinctly stated as to each judgment in these words: “ Docketed September 29, 1860.”

7. It is objected, that the statute requires, that the different items “ shall be stated in separate columns.” This raises thé question, whether the statute in this respect is mandatory or simply directory. I am of the opinion, that the statute in this respect must be held as simply directory and not mandatory, if for no other reason, because the thing directed to be done in this particular is not the essence of the thing required. Lord Mansfield in Rex v. Loxdale, 1 Burr. 447; Pott. Dwarr. on Statutes, &c., of 1871, 222, 223, 224, 226, notes; Marchant v. Langworthy, 6 Hill. 646; Striker v. Kelly, 7 Hill. 9 ; People v. Cook, 8 N.Y. 67" court="NY" date_filed="1853-03-05" href="https://app.midpage.ai/document/the-people-v--cook-3630155?utm_source=webapp" opinion_id="3630155">8 N. Y. 67; People v. Cook, 14 Barb. 290; People v. Schermerhorn 19 Barb. 558. In the last case it was held, that a statute is directory, where the thing directed to be done is an immaterial matter, where a compliance is matter of convenience rather than substance. In Dwar. on Statutes at page 226 in a note it is said : “And in general it may be laid down as a rule, that when a statute directs certain proceedings to be done in a certain way or ata certain time, and the form or period does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done.” This it seems to me states a good general rule upon the subject.

8. It is objected, that the book from which the copies were taken is not such a “ well bound book ” as the statute requires. The attestation of the clerk of the county court to one of the copies is as follows : “A true copy from the judgment lien docket, as it now remains in the clerk’s office of Greenbrier county court,”.and to the other: “A true copy from the judgment lien docket as it now remains in the clerk’s office of Greenbrier county court.” I see no substantial difference in the attestations of the clerk ; the only difference is, in the one the words “the judgment lien docket” are italicised, and in the other they are not. The clerk also after his attestive certificate certifies, that the book though old is substantially bound and well preserved for so old a book; that said book was used for docketing judgments from August 16, 1843, to May 15, 1861, and that he finds one judgment docketed therein the 1st day of May, 1866; that there is in the office no other book kept during that time or period for such purpose; that no judgments were docketed in his office from May 15, 1861, until February, 1866, from which time another book was commenced and used for that purpose; that the said first book was always treated and used in the office as a judgment lien docket, and was always exhibited as such to any persons wishing to see such a docket for the time, which it covers, and copies from said book were always furnished to persons desiring them certified as from the judgment lien docket. I have doubts, whether portions of these certificates as to facts stated can be proved by a certificate of the clerk, and whether, if such facts are relied on, if deemed material, they should not be proved by deposition. But I do not deem it necessary now to decide that question, as in my opinion the direction of the statute as to “a well bound book,” is simply directory as to the quality of the book, and so far as my knowledge extends, it has always been so considered by the legal profession.

9. It is further objected, that neither of said two judgments were indexed. The clerk certifies, that the said two judgments are indexed as follows: “ The space in the index under the letter ‘ C ’ is filled up and runs out just where the column for ‘E’ begins, and there where the ‘C’ space ends and before any indexing under ‘ E ’ is this note, ‘ See after J;’ and upon the page after the letter ‘ J ’ in the said index the indexing under ‘C’ is resumed, and after thirty-nine entries in letter ‘C’ the following are found: Commonwealth v. Calwell, E. S. ’81; Same v. Same, ’81.” The clerk also certifies, that said judgments are not otherwise docketed than as above. This precise question was presented to and decided by the Court of Appeals in Virginia in cases, in which the facts appearing were much strongerthan in the case at bar. The cases, to which I refer, are Old Dominion Granite Co. et als. v. Clarke et als.; Same v. Jones et als., 28 Gratt. 617" court="Va." date_filed="1877-03-15" href="https://app.midpage.ai/document/old-dominion-granite-co-v-clarke-8481925?utm_source=webapp" opinion_id="8481925">28 Gratt. 617. The syllabus of the cases is : “ C. obtained a judgment against B. and P. as partners trading under the firm of B. & Co. He delivered an abstract of his judgment to the clerk of the county court of the county, wherein there was a tract of land belonging to P., and the same was properly entered by the clerk in the body of the judgment-docket, but was not indexed in the name of P., but merely in the name of ‘B. & Co.’ Subsequently P. sold and conveyed his land to O., who had no knowledge of C.’s judgments. Upon a bill filed by C. to subject the lands in the hands of O. to his judgments, held : That under chapter 186 §§ 4, 8 Code of 1860 indexing was not a necessary part of the docketing.” This ease was decided in 1877. Judge Staples delivered the unanimous opinion of the court. In this opinion the judge reviews the subject ably and his conclusions and reasoning coincide so nearly with my own, that I repeat so much of his reasoning and conclusions in his language instead of my own. Commencing at page 621 the judge says :

• “Conceding for the sake of argument, it is the duty of the auditor to have his judgment docketed, the question still arises, whether that has not been done in the case before us. As already stated, the abstract of the judgment was properly placed on the judgment-docket, but it was not indexed in the individual name of the defendant, Pate. The point presented is, whether indexing is a part and necessary part of the docketing.' In other words, is the docketing incomplete, until the judgment is also properly indexed in the name of the defendants. This question must of course be solved by the provisions of our statute exclusively. The first act passed upon this subject was in April, 1843. A recurrence to that act will very materially aid us in reaching a correct conclusion. The first section provides, it shall be the duty of the clerk of the county court to keep in well bound books a judgment docket, in which shall be regularly docketed all such unsatisfied final judgments, decrees, &c., as any person interested therein shall require him to docket. In such book there shall be plainly set down in separate columns, the name, description and residence of the parties, the amount of the debt, costs, &c., appearing in each case, and the amount and date of the credits,, if any. We have here plainly pointed out what constitutes a docket, and the manner and form, in which it shall be made out, and the facts it is required to set forth for the information of the parties concerned.

“Having thus provided for a docket, the act makes provision for an index as follows: And for the purpose of more convenient reference there shall be made and preserved in the same books a plain and accurate index of all judgments, decrees, &e,, docketed, and every judgment, &c., in the said index shall be set down in alphabetical order the names of the debtors and each of them. The second section provides, that if any clerk shall fail to docket without delay in the manner herein prescribed any judgment, &c., which he shall be required to docket, or shall fail to make and preserve the index hereby required of him, he shall be liable to the action of the party aggrieved for such damages, as he may sustain thereby. It will thus be seen, that the docket is one thing and the index another and quite a different thing. Nothing can more strongly enforce this distinction than the language of the second section just quoted. The clerk is required to docket only when requested, but it is his duty to index, whether requested or not. While the statute imposes upon the creditor the duty of requiring the clerk to docket the judgment, it imposes no duty upon him with respect to the indexing. With that the creditor need not concern himself. Certainly h'e is not compelled to make any demand upon the clerk by the express terms of the provision. The sole object of the indexing, as disclosed in the statute, is for the purpose of a more convenient reference, to facilitate the search, to enable parties more readily to find that which is contained in the docket. The index is a guide to the docket; it saves labor and trouble in examining the docket, but is not the docket itself, nor a part of it.

“We come then to the fourth section, which provides ‘no judgment or decree shall bind the land against a bona,fide purchaser for valuable consideration without notice, unless the same shall be doeJceted in the manner prescribed in the first section.’ Now if this section had provided, that the judgment shall not continue a lien unless docketed and indexed according to the first section, the question would be free from difficulty. But it does not say so. The forfeiture results only from a failure to docket; and as we have seen, the docketing is complete without the indexing. If the clerk fails to make the index as prescribed by the statute, and the purchaser is misled, the latter doubtless may have his action for damages. But this is no concern of the creditor. Having docketed his judgment, he may safely leave the rest to the clerk, whose duty as to the index does not depend upon any act or request of the creditor. The provisions found in the revisal of 1849 are substantially the same as the act of 1843. The only difference is, that in the former the revisors omitted the phrase ‘for the purpose of more convenient reference.’ It is certain, that no material change was thereby intended. It was probably thought these words were unnecessary, and consequently they were left out in conformity with the plan of condensing all the statutes.

“In the discussion of questions of this character little aid is to be derived from the decisions of other States, unless their laws substantially correspond with ours. The statutes of the State of New York are perhaps more nearly like those of Virginia in this particular than those of any other State. The law requires a record-book of all deeds and mortgages, and it further declares, that the clerk shall provide books for making general indices, and shall form indices therein in such manner as to afford convenient and easy reference to the several books of record in their offices respectively. This act was passed about the same time as ours, in the year 1843. In a very recent case — Mutual Life Ins. Co. v. Dake, reported in the Central Law Journal, 340, of April 13, 1877, the question arose as to the rights of a bona fide purchaser as against the lien of a mortgage. There also the purchaser had examined the index, but found no reference to a mortgage, although in fact it was duly recorded. The Court of Appeals held, that the provision in respect to indexing instruments did not show any ground for claiming, that the index should constitute notice. The index was simply required to be attached to each book; and all this was for the convenience of those searching for records, but was not considered part of the records. Judge Smith, who spoke for all the Judges, in closing his opinion uses the following language: ‘On the whole, I am of opinion, that under our statute the index is not an essential part of the record for the purpose of notice; that in this case the plaintiff’s mortgage was duly recorded so as to be regarded as giving notice to after-purchasers, and that the lien of the plaintiff’s mortgage is superior to that of the Baity mortgage held by the defendant Dake. In reaching this conclusion, I have not overlooked the practical inconveniences, that may result from it in searching records. But the duty of the Court is only to declare the law, as the Legislature has laid it down. Argument ab inconvenienti may sometimes throw light upon the construction of ambiguous or doubtful words; but when as here the language of the law makes it plain, they are out of place. Inconvenience in practice will result, whichever way the question shall be decided. The place to remedy them is the the Legislature, and not in the courts. Even as the law now stands, the party injured by the omission of the clerk is not without remedy.’ All that is here said is equally applicable to the case before us. Indeed it would be difficult to find an authority more directly in point. Judge Smith further states, that the statutes of Vermont and Missouri are the same in many respects as those of New York, and he relies upon Curtis v. Lyman, 24 Vt. 338" court="Vt." date_filed="1852-03-15" href="https://app.midpage.ai/document/curtis-v-lyman-6574789?utm_source=webapp" opinion_id="6574789">24 Vt. 338, and Bishop v. Schneider, 46 Mo. 472" court="Mo." date_filed="1870-10-15" href="https://app.midpage.ai/document/bishop-v-schneider-8002989?utm_source=webapp" opinion_id="8002989">46 Mo. 472, in which the same questions arose, and the same doctrine was affirmed by a unanimous court. See also the recent, case of Chatham v. Bradford, 50 Ga. 327" court="Ga." date_filed="1873-07-15" href="https://app.midpage.ai/document/chatham-v-bradford-5556785?utm_source=webapp" opinion_id="5556785">50 Ga. 327, upon the construction of a statute similar in many of its provisions to the New York statute.

“These cases substantially assert, that the index is no part of the record, but a means of easy reference to the record. If the clerk fails to make the index, he injures those, who desire to make the search. The clerk’s duty is therefore to the searcher and to the public, and not to the holder of the deed. When the latter has placed his deed upon the record-book he has done all the law requires him to do. Any one who will take the trouble can examine this record. The time and labor expended in making this examination is merely a question of degree. If the party pursuing the search is content with looking at the index, without an examination of the record, and he is thereby misled, his remedy is against the clerk, whose duty it is to prepare the index for the benefit of the searcher, and not of the holder of the deed. These views are not only in conformity with the provisions of our statute, upon a fair and reasonable interpretation, but they are intrinsically just and sensible in themselves. All that is said with reference to the holder of a deed admitted to record, but not indexed, is equally applicable to a judgment-creditor, whose judgment is docketed and not indexed.”

In addition to the authorities above referred to on the matter of indexing I refer to the following cases as bearing thereon : Throckmorton et als. v. Price et als., 28 Tex. 605" court="Tex." date_filed="1866-12-15" href="https://app.midpage.ai/document/throckmorton-v-price-4890298?utm_source=webapp" opinion_id="4890298">28 Tex. 605; Horsley et als. v. Garth & Colquit, 2 Gratt. 474; Carper et als. v. McDowell, 5 Gratt. 212" court="Va." date_filed="1848-07-15" href="https://app.midpage.ai/document/carper-v-mdowell-8481381?utm_source=webapp" opinion_id="8481381">5 Gratt. 212. Under the circumstances appearing in this case, I think the said judgments and their liens ought to be enforced in equity in favor of the State, and that payment thereof should not be presumed against the State of West Virginia in these causes under the principles hereinbefore announced. People v. Supervisors of Columbia County, 10 Wend. (N. Y.) 363; Angel on Limitations, 6th ed. chapter 5, section 37, note 3, pages 31, 32, 33 ; and other authorities hereinbefore cited. Upon the whole I am of opinion that the appellant’s ninth objection is not well taken.

I have now' considered and determined all the material questions arising upon the assignments of error of the appellants contained in their petition for this appeal, and, I believe, all, which have been discussed by the counsel for appellants. But the counsel for the State of West Virginia and Tuck-willer have filed and argued some cross assignments of error, which I will consider and dispose of in the order, in which they have been argued before us.

The first of said cross-errors so assigned is the following: “ First. — The court erred in permitting the defendants, Caroline Tillman, David Norris, Sally Norris, Anthony Holmes and Nancy D. Tillman, to file amended answers on the 20th day of November, 1878, after all the matters in issue had been decided.” The amendment of answers referred to in this assignment of error as being permitted by the court is the amendment referred to in the clause of the said decree of the 20th day of November, 1878, which is as follows: “ And then after the foregoing opinion and decision had been given, the defendants, Caroline Tillman, David Norris, Sallie Norris, Anthony Holmes and Nancy D. Tillman, asked leave to amend the • answers by them heretofore filed in these causes, and leave to do so is granted them accordingly; and said amendments are now here made and the plaintiffs reply generally.” What the amendments were does not appear upon ■ the face of the decree, but it does appear, that the amendments were then made and as I infer by inserting them in the original answers simply. It does not appear, that any objections or exceptions were made to the making or allowance of said amendments, or what reasons, if any, were assigned, why said amendments were not asked for or made at an earlier period, or why the matter embraced in the amendment was not inserted in the original answers. What the amendments allowed and made as aforesaid were only appears by the notes of the clerk of the court below appearing in the record, in wThick he states, that the part of the answers in italics constitute. the amendments. It appears, that on the second day after the rendition of said last named decree, to wit: on the 22d day of November, 1878, upon motion of the said Alexander F. Mathews, administrator of P. A. Prindle, and of the State of West Virginia, leave was granted them to file a special replication to the original and amended answers filed in these causes by said Caroline Tillman, David Norris, Sallie Norris, Anthony Holmes, Nancy D. Tillman and Peter Holmes, and said special replication was accordingly filed, which denies all the material allegations contained in said answers and each of them. None of the answers amended were sworn to.

The object and purpose of said amendment was no doubt to raise the question in the cause by evidence as to whether these defendants were entitled as alienees for value of Calwell, the debtor, as they allege, to be allowed in these causes against liens ascertained and adjudicated compensation for the permanent improvements made by them on the parts of the land conveyed to them respectively by said Calwell during his life, after charging them with proper rents and profits, &c. And perhaps the object of the court in permitting said amendments, if its attention was called to their nature at all, was to allow the defendants to raise that question if they could, by evidence, without the court adjudicating or deciding thereby upon the question at that time in any respect, but leaving the question open, undecided and not passed upon by the court. I apprehend, that an order of court permitting the- amendment of an answer is not appealable. .The making amendments of answer generally ought not to delay the hearing of a cause as to the questions thereby raised in the pleadings except for good cause.

As the'eourt below in permitting said amendments decided no question or principle in the causes but in effect left any and every point or question, which might or could arise by or under said amendments, open, I do not think this Court is authorized now to reverse the said decree in whole or in part because of said amendments being allowed under the circumstances, as they appear by the record. To do so would in effect amount to this Court deciding in advance a question in these causes, upon which the court below has never passed and in fact may never be required to decide. Whether the said defandants or any of them as alienees of Calwell for value are entitled as against the lien-creditors of said Calwell to compensation for any improvements of any character, which they may have respectively put upon- the lands conveyed to them by said Calwell, or not, in these causes has not yet been decided or passed upon by the court below, nor can nor do I .see, that the court below has in any way held or decided in these causes by admitting said amendments or otherwise the principle of law, that a subsequent purchaser of land for value is or is not entitled under any circumstances to have as against judgment-lien-creditors or deeds-of-trust-creditors of his vendor, of which he had at the time of his purchase either actual or constructive notice, compensation for improvements, which he put upon the land purchased; and the evidence in the cause upon the subject of said amendments was not sufficient on the 20th day of November, 1878, to have required the court below to decide the question of law in these causes and issues upon said answers were afterwards made by special replication. The appeal was prematurely taken in this case, if it was- desired to have this Court pass on the question, as to whether subsequent alienees of Calwell are entitled to compensation for permanent improvements. In affirming the said decree of the 27lh of November, 1878, which under my views in these causes must be done, this Court does so with the full understanding and declaration of these facts.

The second assignment of error is, that the court below erred in sustaining the motion of said defendants Caroline Tillman and others for a continuance of these causes. Whether the court below erred in continuing the causes,'as to the matters, which it did, as appears by its said decree, it is immaterial and unnecessary here to enquire into or decide, as this Court is not authorized to reverse any part of the decree for that cause, or to give for that cause such decree as the court belpw ought to have given, if it had then heard and decided the cause. While courts should be careful not to continue causes, when they ought not to be continued, still an order of continuance is not appealable.

The third assignment of error is, that if there was any ground shown for a continuance, it only had reference to the aliened lands. The answer to this assignment of error is the same as that to the second assignment. The fourth error assigned is, that the court erred in sustaining the exception to the report of commissioner Withrow, as far as relates to the debt in favor of Tuckwiller, and in rejecting and disallowing said debt. I have already disposed of this assignment of error by holding, that the court did not err in this respect.,

I have now reviewed these causes so far, as decided and passed upon by the court below. I have done so with much labor, examination and consideration ; and my conclusion, for the reasons hereinbefore stated, is, that there is no error in the said decree of the circuit court of the said county of Green-brier rendered on the 20th day of November, 1878, for which it should be reversed. The said decree must therefore be affirmed, and,the said Lee George executor of Edmund S. Cal-well, deceased, out of the assets of the said Edmund S. Cal-well in the hands of the said George to be administered, and the said Caroline Tilman, Nancy D. Tilman, Susan M. Constable and Truman Skinner out of their own estates must pay to the appellees, the State of West Virginia, and Alexander F. Mathews administrator of A. P. Prindle, deceased, $30.00 damages and their costs about their defence made in this cause in this Court, and this cause must be remanded to the circuit court of the said county of Greenbrier for further proceedings therein to be had according to the principles settled in this opinion and further according to the rules and principles governing courts of equity.

Judges Johnson AND GreeN Concurred.

JudgmeNT Affirmed. Cause Remanded.