85 Va. 177 | Va. | 1888
delivered the opinion of the court.
The case is as follows : On the 24th day of March, 1862, Jonathan T. Hanby became one of the sureties upon the bond of Samuel H. Millard, as the executor of the estate of John Worley, deceased, with Archimedes Davis and John Byburn as his
The grounds upon which this decree is sought to be sustained are: (1) That the appellant had no cause of action against the appellee by reason of the circumstances above recited; (2) because it does not appear that the debt could not have been made out of the principal debtor, Samuel H. Millard ; (3) because the question of subjecting the homestead of H. M. Millard and James Henritze was res adjudicata; (4) because the complainant had no ground for relief when he filed his original bill, and, having no cause of action then, appellant could not file an amended and supplemental bill for causes of action arising thereafter.
As to the first ground cited above, the claim is that the sureties on the executorial bond of Millard had no claim for compensation against the sureties on the purchase-money bonds at the sale of the debtor’s land. But it is insisted by the appellant that the sureties on the purchase-money bonds, by their act in becoming such, became primarily liable for the payment of the decrees against their principal; and, the said sureties on the executorial bond being thus secondarily liable to the creditors, >
As for the second contention of the appellee, that the proceedings do not show the debt claimed could not have been made out of the principal debtor, we may remark that execution against the principal debtor has been returned unsatisfied, and the principal debtor’s lands have been sold at public auction, and the debt is still unsatisfied, and if there exists any possibility of making the debt out of any property belonging to the debtor, it is to their interest, primarily, so far as these appellants are concerned, to direct legal proceedings in that direction, because, as we have already said, as to the appellant, they, the appellees, are primarily liable, it being clear that if they comply with their undertaking, which has inured to the benefit of the. appellant, then the appellant will be compensated for his loss.
The third contention of the appellees is, that the question of subjecting their homestead is res adjudioata, by reason of the decree of May 27, 1880, the court having there decreed against the appellants, the sureties of the executorial bond, because it “appeared that no further sum could be made out of the estate of Henritze and Hugh Millard, over and above their homestead.” But here the circumstance is overlooked that this, by reason of the amended bill, is an attack upon the property once exempt, but claimed to be subject now to the debt, because the homestead exemption as to the property in question has expired; the husband and head of the family and the widow being dead, and the youngest child over twenty one years of age; and, this being so, then his contention is (4) that the complainant bad no ground for the relief sought, when he filed his original bill, and, having no cause of action then, appellant could not file an amended and supplemental bill for causes of action arising thereafter. It is perfectly true that supplemental bills will not be allowed for the purpose of introducing a completely new case. 3 Daniell Ch. Pr. 159. But the plaintiff may, by his amendments, so alter
The only question remaining to be considered is that raised in the argument—that the property held as a homestead exemption cannot be subjected to the satisfaction of any liabilities against it which were created before the property was impressed with that character, or after it was impressed with that character. It is said that some of the States have settled this question in the manner so claimed. But to determine the question so far as this State is concerned, we must look to our own constitution, and the laws passed in pursuance thereof. The Virginia constitution provides (article 11, § 1) that “every householder or head of a family shall he entitled, in addition to the articles now exempt from levy or distress for rent, to hold exempt from levy, seizure, garnishing, or sale under any execution, order or other process, issued on any demand for any debt heretofore or hereafter contracted, his re.al and personal property, or either, including money and debts due him, whether heretofore or hereafter acquired or contracted, to the value of not exceeding two thousand dollars to he selected by him.” Section 5 of the same article provides as follows: “The general assembly shall, at its first session under this constitution, prescribe in what manner and on what conditions the said householder or head of a family
Decree reversed.