102 Va. 314 | Va. | 1904
delivered the opinion of the court.
This case has been appealed twice. The decision of the court in the former appeal is reported in 100 Va. 426-437, 41 S. E. 863, and the proceedings had in the case prior to that time are set out in the opinion of the court.
The appellees assign as cross-error, under rule IX., that the court erred in not holding that Wheeler had constructive notice, even if he did not have actual notice, of that judgment. If this be true, it will be unnecessary to consider the question of actual notice.
Upon the former appeal, it appeared that the judgment had been properly docketed upon the judgment lien docket, as provided by section 3560 of the Code of 1887, but it did not appear that the docketing had been indexed as required by section 3561. The case was remanded to the Circuit Court without passing upon that question. After the case went back, the deposition of the clerk of the County Court of Lee county was taken, and with his deposition was filed extracts from the index o.f the judgment lien docket. One of these extracts is as follows:
“Fulkerson L. D. Cur. & et al. ads. Emma Harber, p. 168.
“Same ads. A. L. Pridemore, p. 168.
“Same ads. Bosetta Harber, p. 168.
“Same ads. Bays Children, p. 168.
“Same ads. Chas. E. Baylor, p. 168.”
The Circuit Court was of opinion that the use of the word “same” in the index in the place of the full name of the judgment debtor was not a compliance with the provisions of section 3561 of the Code of 1887, which requires that every judgment shall be, as soon as it is docketed, indexed by the clerk in the name of each defendant, and shall not be regarded as docketed as to any defendant in whose name it is not so indexed.
The administratrix of L. D. Fulkerson, in an answer filed on the 8th day of June, 1901, set up the plea of the statute of limitations to the judgment of Baylor, upon the ground that more than ten years had elapsed between the date of its rendition and the institution of this suit, and that no valid execution had ever issued thereon. She filed with her answer a notice served upon the personal representative of the judgment creditor, that she would on the 7th day of that month move the Circuit Court to quash the execution in question upon the ground that it was prematurely issued. Upon the same day upon which the answer was filed, a decree was entered in this cause overruling a motion made by the administrator of L. D. Fulkerson. What that motion was is not disclosed by the record. If it was the motion to quash the execution, it does not appear to have been made on the day named in the notice, and besides, could not have been legally made in this case.
Conceding that the execution was improperly issued, it was not void, but only voidable. Until it is avoided it must be regarded as a valid execution, and could not be avoided by plea or proof in this, a collateral suit. Fulkerson v. Taylor, supra.
In Beale’s Adm’r v. Botetourt Justices, 10 Gratt. 278, the execution issued more than a year and a day from the date of the decree, without any proceeding by way of scire faicias or otherwise to authorize the same. In that case it was held—though the conclusion may not have been necessary to a decision of the case—that the validity of the execution could not be attacked in that, a collateral proceeding. The reasoning, however, of Judge Moncure in that case, and the authorities cited by him, sustain the doctrine that an execution issued improperly, which is voidable, but not void, upon a judgment or decree rendered in one case, cannot be attacked in another case in which such judgment
The appellees also assign as cross-error that the Circuit Court erred in decreeing that the sum paid by J. M. Wheeler on the purchase price of the 113 and 51 acre tracts of land prior to the rendition of the Baylor judgment should be a lien on these tracts of land prior to the Baylor judgment.
If it be true, as insisted by counsel for Wheeler’s heirs, that his contract of purchase from Fulkerson was in parol; that Wheeler had been put in possession under it, and paid part of the purchase price before the Baylor judgment was rendered and docketed—it does not, to the extent of such payment, give them priority over the lien of the Baylor judgment. In order for a purchaser, under a contract which is not required to be recorded, to be protected as to subsequent judgments against his vendor, he must, before the date of such judgment, have become invested with a perfect equitable title. Withers v. Carter, 4 Gratt. 407, 412, 50 Am. Dec. 78; Floyd etc. v. Harding, 28 Gratt. 401, 414, 416; March, Price & Co. v. Chambers, 30 Gratt. at page 303; Long v. Hagerstown Agricultural Co., 30 Gratt. 665; Brown v. Butler, 87 Va. 621, 13 S. E. 71; Powell v. Bell's Adm'r, 81 Va. 222. Wheeler did not have at that time a perfect equitable title, as he had only paid a part of the purchase price.
Prior to the Code of 1887, a subsequent purchaser under a contract not required to be recorded was not protected against a prior unrecorded conveyance unless he had paid the whole purchase price before he received notice of the unrecorded conveyance. 4 Minor’s Inst. 968, and cases there cited. Mow, under section 2472 of that Code, such a purchaser is protected to the extent of the payments made when he receives notice of the prior unrecorded deed or writing, and has a lien on the property purchased for so much of the purchase money as he had paid before
The action of the court in decreeing a sale of the improvements made by the Louisville & 1STashville Bailroad Company on the Yanoy Bailroad strip, and especially without compensating the railroad company for said improvements, is assigned as error.
The Yanoy strip of land conveyed to the railroad company, and upon which it had constructed its improvements, it is conceded by the assignment of error, was liable for the liens for which it was decreed to be sold, but the contention is that the improvements placed thereon by the railroad company are not liable. This contention is based upon two grounds: First, that the railroad company made its improvements in good faith, believing that it had good title to the strip of land; second, that the same principles of law do not apply to allowances for improvements when made by a public improvement company or corporation like a railroad as apply when made by private individuals.
As to the first ground, that the railroad company made its improvements in good faith, believing that it had good title to the land: This contention is not sustained by the facts. The railroad company, when it purchased the land and made its improvements thereon, knew, or ought to have known, that it was not acquiring a good title. An examination of the records would have shown this, and that judgments against Fulkerson, theretofore or thereafter rendered, in the then condition of the title, would bind the land in its hands. Under these circumstances, it is immaterial whether or not it had actual notice of the infirmity of the title. It had the means of knowledge, and the means of knowledge with the duty of using them is equiva
As to the second ground, that a railroad or other quasi public corporation is not governed by the same principles as are private individuals, in claiming for compensation for the value of improvements: Code 1887, sections 1079, 1083, provide how such corporations may acquire perfect title to lands needed for their purposes, and transfer any controversy as to the title to the lands, or as to incumbrances upon them, to the damages assessed in the condemnation proceedings. C. & W. Railroad Co. v. W. C. & St. L. Ry. Co., 99 Va. 715, 723, 40 S. E. 20. Where such a corporation attempts to acquire title to lands by purchase from the occupant or supposed owner, we know of no rule of law which exempts it from the ordinary principles of law applicable to private individuals purchasing under like circumstances. A corporation, except where it is otherwise provided in its charter, expressly or by clear implication, in the acquisition and use of its property, the exercise of its powers, and the transaction of its business, stands upon the same footing as private individuals. See R. & F. R. Co. v. City of Richmond, 26 Gratt. 83 ; Bank v. Billings, 4 Pet. 514, 7 L. Ed. 939 ; Hope v. N. & W. R. Co., 79 Va. 283.
It is further insisted that, even if the railroad company is not entitled to compensation for the value of the improvements it placed upon the land, the court erred in decreeing a sale of the strip of land with the improvements thereon. A number of cases are cited to sustain this contention. Conceding that it is true, as these cases, or some of them, at least, hold, that detached portions of the roadbed of a railroad cannot be sold to satisfy judgment or other liens upon its property for debts of the company, it does not follow that, where a railroad company has constructed a part of its roadbed upon lands which are subject to liens of judgments against the persons from whom it acquired the lands such lands cannot be sold to satisfy such liens. The
In the case of Hope v. N. & W. R. Co., supra, where the same arguments of public policy and inconvenience were urged as in this case against interference with the operations of a railroad company by depriving it of a part of its roadbed, it was said by Judge Lewis, in delivering the opinion of the court, “that questions of inconvenience discussed by counsel cannot be considered by the court. The fact is that the defendant unlawfully withholds possession of the plaintiff’s property, to which it has acquired no title, and for which he has received no compensation. It is competent, however, for the company, if it cannot acquire the land by private agreement, to condemn it; and thus it is hardly probable that public inconvenience will result from a reversal of the judgment complained of. But be that as it may, the plaintiff has not shown himself entitled to recover, and the judgment must be reversed.” If a plaintiff in an action of unlawful detainer is entitled to a writ of possession, as was adjudged in that case, for a detached portion of the bed of the railroad, clearly the judgment lien creditor in this case can subject the detached portion of the railroad upon which he has a lien to its payment by a sale thereof.
The decree appealed from must be reversed in so far as it is in conflict with the views expressed in this opinion, and affirmed in other respects, and the cause will be remanded to the Circuit Court for further proceedings to be had in accordance with law, and not in conflict with this opinion.
Reversed.