97 Va. 457 | Va. | 1899
delivered the opinion of the conrt.
William Cheatham, suing for the benefit of Sarah A. Cheat-ham and Alexander Eitzpatrick, at the September term, 1854, of the Circuit Court of Eelson county, recovered a judgment against E. I. Morgan and E. P. Aistrop, then late partners trading under the firm name of Morgan & Aistrop, for the sum of $406.02, with interest from March 2, 1854, and costs of protest of the note sued on, and costs of the suit, subject to a credit of $29.45,. as of August 7, 1854.
Two executions were issued on the judgment, the last one returned to June Eules, 1856, of Eelson Circuit Court, the return on both being “ no effects.”
Morgan & Aistrop were at that time totally insolvent, and Morgan died a short time afterwards in Eelson county, leaving no estate whatever.
Between the date of the judgment and the beginning of the civil war, in 1861, Aistrop removed from Eelson county to the city of Lynchburg, where he resided till 1863, when he was drafted into the Confederate army, which army he deserted, going to the city of Washington, where he resided until the spring of 1896, at which time he returned to Eelson county, and remained until his death in the spring of 1897. After leaving Eelson county, and while he resided in Lynchburg, Aistrop held a position as clerk or salesman in a commercial establishment, and whatever money he may have thus made was deposited in bank in his name as administrator of one L. D. Aistrop, deceased. He was regarded as a spendthrift, and had but little property which could have been reached by his creditors in the State of Virginia at any time prior to 1892.
On the 30th of May, 1892, Aistrop purchased a tract of land
Sarah A. Cheatham having died, William Cheatham qualified as her administrator, and the estate of A. Fitzpatrick having been committed to M. K. Estes, sheriff of Kelson county, for administration, William Cheatham, as administrator of Sarah A. Cheatham, deceased, and Y. K. Estes, as administrator of A. Fitzpatrick, deceased, filed their bill to the Kovember rules, 1897, of Kelson Circuit Court, against the devisee and heirs at law of E. P. Aistrop to subject the said tract of land owned by him in Kelson county to the payment of the aforesaid judgment.
John P. Jennings, to whom E. P. Aistrop devised the tract of land sought to be subjected to the payment of the judgment, and E. P. Aistrop’s administrator and heirs, set up as their defence to the bill the statute of limitations, and the presumption of payment arising from the lapse of time and the laches of complainants.
Upon the hearing of the cause on the bill, the answers thereto, and the depositions of witnesses, the Circuit Court- of Kelson county, at its September term, 1898, dismissed it, and from that decree the complainants obtained an appeal to this court.
A motion is made to dismiss the appeal as to- A. Fitzpatrick’s administrator, on the ground that his interest in the judgment sued on does not amount to $500.
The sum in controversy is the amount due on the judgment, and the judgment was obtained on a note given by [Morgan & Aistrop to William Cheatham, who assigned it to Sarah A. Cheatham as to $300 of its amount, and to A. Fitzpatrick as to the residue. Ke-ither of the assignees had a claim founded upon an independent contract, which each had the right to enforce
The next question presented is, are appellants barred in the collection of their judgment by the statute of limitations?
Certainly, if the time that E. P. Aistrop was a non-resident of Yirgina is to be included in the computation of the time that elapsed from the date of the return of the last execution issued upon the judgment, to the institution of this suit, excluding the period from April 17, 1861, to March 29, 1871, the appellants cannot enforce their judgment. But this court, in Ficldin v. Carrington, 31 Gratt. 219, held: “Where a debtor who resides in the State removes, after contracting the debt, to another State, the removal is itself an obstruction to the prosecution of a suit by the creditor'to recover the debt, and the statute of limitations will not run against the debt while the debtor remains out of the State.”
It is somewhat insisted upon by appellees that the decision in Ficklin v. Carrington, supra, has been overruled by this court in Brown v. Butler, 87 Va. 621, and it is so stated by Mr. Barton in a review of the two cases (2 Barton’s L. Pr., note, p. 793), but we are unable to take that view of the decision in Brown v. Butler. In that case Lewis, P., after stating that the decision in Ficldin v. Carrington laid down the broad doctrine that the removal by a debtor out of the State, operates proprio vigore an obstruction, within the meaning of the statute, to the prosecution of the creditor's right to sue, during the period of the debtor's absence, only says that it is somewhat remarkable that no allusion was made in the opinion to Wilson v.. Koontz, 7
The remaining question is whether or not the presumption of payment arises from the lapse of time and the laches of appellants in the assertion of their judgment against E. P. Aistrop, now deceased. '
As we have seen, the judgment was not barred by the statute of limitations when this suit was instituted, the period of Aistrop’s absence from the State being excluded from the computation of the time the judgment had been running, and it is conceded by appellees that the presumption of the payment of
What, then, are the circumstances on which, together with the lapse of time, appellees rely to justify the presumption that the judgment in question has been paid? They are, first, the fact that Aistrop owned an undivided interest in a house and lot occupied by his mother in the town of Lovingston till about 1868, where appellant, William Cheatham, and his mother, Sarah A. Cheatham, lived until their removal to Lynchburg about 1875, and no effort was made by them to subject the interest of Aistrop in this property or the rents received therefrom to the payment of the judgment now asserted; second, that Aistrop was employed in the city of Lynchbulg up to the time he was drafted into the Confederate army, and probably received a salary of from $1,200 to $1,500 per annum, and perhaps owned a negro man—a body servant—and spent money freely, not only for himself, but for his friends; third, it was currently reported that he, after his removal to Washington, had amassed a handsome fortune, and had bought and in 1892 had title to a farm in ISTelson county, putting upon it stock, farming implements, furniture, &c.; and, fourth, the failure of Cheatham or his mother, who were poor and needy, to take steps to collect their judgment till after Aistrop’s death.
On the other hand, the proof in the record shows, in addition to what has already been stated, that the interest of Aistrop in the house and lot at Lovingston, if it had been sold, subject to his mother’s dower interest therein, would have brought but little, if anything, over the costs of the chancery suit to subject it, and, besides, there was one other judgment at least against Aistrop docketed in LTelson county that had priority over the judgment of Cheatham for'&c.
It further appears from the deposition of William Cheatham that when Aistrop was in Lynchburg, he (Cheatham) made an
When the farm in ISTelson county was purchased by Aistrop in 1892, Cheatham had hot only moved to Lynchburg, but had ceased to visit that county on court days, as he formerly did. Aistrop did not return to Virginia until 1896, and died within a year, having been an invalid and confined to his room nearly the whole time. The unimpeached testimony of Cheatham is that he was always told that Aistrop did not own any property; that he was not aware that anything could be made out of him; that it was only a short time before Aistrop’s death that he heard he had purchased property in LTelson county; that he thought his judgment was out of date, but when he heard of Afetrop’s death he thought about it, and telephoned Mr. Caskie to come to see him with reference to it. lie further says, positively that the judgment has never been paid.
True, the judgment had been standing for forty-two years or more when this suit to enforce it was brought, but in the meantime the debtor deserted his State, within a few years after the judgment was recovered, and resided in another jurisdiction for thirty-three years. Whatever may have been the rumors as to his success in making money during his absence, the fact remains
In. view of this record, as to his manner of dealing with his creditors prior to that time, and the further fact that he believed the judgments against him in Kelson county were “ outlawed,” when he caused G-alt to convey the farm to him in 1892, Cheatham’s testimony that the judgment asserted in this suit has never been paid, and the absence of evidence to the contrary, we are of opinion that the decree of the Circuit Court of Kelson county, dismissing the bill as to the appellants, is erroneous. It will, therefore, be reversed and annulled, and the cause-remanded to be further proceeded with in accordance with the.views herein expressed.
Reversed..