| Va. | Jan 5, 1893
delivered the opinion of the court.
In the petition for appeal the point is for the first tune made, that not only was the debt secured by the deed'of trust merged in the judgment, but that the judgment is barred by the statute of limitations; and on this ground it is contended that the injunction ought to have been perpetuated.
This position is untenable. In the first place, no mention of the statute is made in the pleadings, and nothing is better settled than that the statute, to be availed of, must be pleaded. Hickman v. Stout, 2 Leigh 6; Smith v. Hutchinson, 78 Va. 683" court="Va." date_filed="1884-03-13" href="https://app.midpage.ai/document/smith-v-hutchinson-6807238?utm_source=webapp" opinion_id="6807238">78 Va. 683. Indeed, not only was the statute not relied on in the court below, but the amended bill prays, specifically, that proceedings under the deed of trust be enjoined, and that the parties entitled to the judgment be required to enforce it in the usual way.
It is, moreover, a general rule, universally recognized, that a decree has to be founded on the allegata as well as the probata of the case; otherwise the pleadings, instead of being a shield to protect parties from surprise, would be a snare to entrap them. Putnam v. Day, 22 Wall. 60 ; Mundy v. Vawter, 3 Gratt. 518; 1 Bart. Ch. Pr. 260.
But, according to the rule established in Virginia, the debt was not merged in the judgment, nor was the deed of trust security, in any way affected by the judgment. Undoubtedly the bond, the original evidence of the debt, was merged in
Accordingly, it has been expressly decided that although the evidence of the debt has been merged in a judgment, and although the judgment is actually barred by the statute of limitations, yet that the remedy in equity to enforce the lien is not affected by any lapse of time short of the period sufficient to raise the presumption of payment. Paxton v. Rich, 85 Va. 378" court="Va." date_filed="1888-09-13" href="https://app.midpage.ai/document/paxton-v-rich-6808198?utm_source=webapp" opinion_id="6808198">85 Va. 378; Bank of Metropolis v. Guttschlick, 14 Pet. 19" court="SCOTUS" date_filed="1840-01-21" href="https://app.midpage.ai/document/president-of-bank-of-the-metropolis-v-guttschlick-86117?utm_source=webapp" opinion_id="86117">14 Pet. 19. The limitation prescribed by section 2935 of the Code of 1887 has no application to the present case.
As to the prayer of the amended bill for a re-settlement of the administration accounts of John Cook Green, deceased, that is fully met by the plea of res judicata. The very matters thus sought to be litigated were in issue in the suit of Thompson v. Green's Adm'r et als., 84 Va. 376" court="Va." date_filed="1888-01-20" href="https://app.midpage.ai/document/greens-admr-v-thompson-6808018?utm_source=webapp" opinion_id="6808018">84 Va. 376, decided here in January, 1888, to which .suit all the parties to the present suit were parties. In that case the bill charged that the administrator had not fully accounted for all the assets that went into his hands, and the circuit court ordered an account, in conformity with the prayer of the bill. But this court, on appeal, reversed the decree, and dismissed the bill, not only on the ground of laches and lapse of time, but because
The result, moreover, would be the same were the amended bill in this case treated as a bill of review, on the ground of newly-discovered evidence. There is no distinct allegation as to when the receipt relied on was first discovered, nor is it alleged that by the use of reasonable diligence it could not have been produced in time to have been used in the original canse; nor does it contain anything which could have produced a different result had it been brought forward in time.
But the amended bill cannot be treated as a bill of review. The female complainant, so far as the prayer for a re-settlement of the administration accounts is concerned, is claiming as the assignee of Samuel W. Thompson, the plaintiff in the Thompson suit, and a bill of review does not lie for assignees. Thompson v. Maxwell, 95 U.S. 391" court="SCOTUS" date_filed="1877-12-18" href="https://app.midpage.ai/document/thompson-v-maxwell-89615?utm_source=webapp" opinion_id="89615">95 U. S. 391; Armstead v. Bailey, 83 Va. 242" court="Va." date_filed="1887-04-28" href="https://app.midpage.ai/document/armstead-v-bailey-6807840?utm_source=webapp" opinion_id="6807840">83 Va. 242.
Decree affirmed.