82 Va. 751 | Va. | 1887
delivered the opinion of the court.
The record in this case shows that in 1871 F. M. Young, as executor of William Bawlings, filed his bill in the circuit court of Loudoun county to enforce the lien of a judgment, obtained in 1867, against J. H. McVeigh, W. A. Harper, James L. Chamberlain, William N. McVeigh, and Townsend McVeigh. The bond on which this judgment was obtained is in the words and figures following:
$2,000. “ On demand,- we promise and oblige ourselves, our heirs, administrators, etc., to pay to WiDiam Bawlings, his heirs or assigns, the just and full sum of two thousand dollars, lawful money of Virginia, with legal interest thereon till paid, said interest to be paid semi-annually, for value received of him.
“As witness our hands and seals this twenty-third day of April, 1855.
“James H. McVeigh. [Seal.]
“W. A. Harper, [Seal.]
“James L. Chamberlain. [Seal.]
“[Security,] .“William N. McVeigh. [Seal.]
“[Security,] “Townsend McVeigh.” [Seal.]
On the twenty-seventh day of April, 1883, the court rendered its decree, in which, after holding that W. A. Harper, James H. McVeigh, and James L. Chamberlain were principals, and William N. McVeigh and Townsend McVeigh were sureties, in the debt in the bill and proceedings mentioned, and that said debt was not covered by the contract of indemnity filed with the answer of Harper’s administrator, hereafter to he more particularly referred to, decreed against James H. McVeigh, James L. Chamberlain, and W. A. Harper’s administrator for the amount of the judgment hereinbefore mentioned. From this decree Harper’s administrator has taken this appeal.
The first assignment of error is that the circuit court erred in decreeing that W. A. Harper, James H. McVeigh, and James L. Chamberlain are principals in the debt, in the bill and proceedings mentioned, with W. N. McVeigh and Townsend McVeigh as sureties, and that the said debt is not covered by the bond of indemnity filed with answer of W. A. Harper’s administrator; but this contention cannot be supported. The bond is joint, and all the subscribers thereto are presumably principals except those which have the word “ security ” before their names; and this view is confirmed by the deposition of Maj. B. P. Newland, which shows, not only that Harper did not deny, but in effect admitted, that he was one of the principals in the debt, and only claimed that he was released from liability by the bond of indemnity mentioned above. It is true that certain extracts from the books of McVeigh & Chamberlain, and McVeigh, Harper & Chamberlain, and a deposition and letter of W. N. McVeigh, were offered as evidence
Another assignment of error is that the court erred in the amount decreed to the appellee, Townsend McVeigh’s administrator. It is insisted that the amount decreed him should not have included the $513 paid by Isaac G. Budd to Raw-lings’ executor on the debt in question. There seems, however, to be no ground for this objection; for, while this amount of $513 was paid by Budd in the first instance, as the record shows, Townsend McVeigh afterwards repaid the sum to Budd, and so became entitled to recover that amount also, from the principals in the bond as a part of the debt paid for them.
The next objection is that, although the whole of this debt was paid out of the estate of Townsend McVeigh, yet that, as it was not all paid out of the proceeds of the land sold in his lifetime, no recovery can be had by Townsend McVeigh’s administrator. Now, without stopping to comment upon the seeming inconsistency of the appellant in making this objection, after he had demurred to the amended bill, filed in the cause of Rawlings’ ex’ors v. McVeigh, on the ground that there was no right of action in anybody but Townsend McVeigh’s administrator, it is sufficient answer to say that, as Townsend McVeigh’s estate is confessedly insolvent, his heirs can have no possible interest in this recovery, and that, as the claim when realized will be assets for the payment of debts, the right of action is properly in the personal representative of Townsend McVeigh, and nó one else. But were this not so, the objection must still be regarded as not well taken. As hereto
It is next argued that the court erred in decreeing in favor of McVeigh’s administrator when he was largely indebted to the principals in the bond. This is not the case; for while the record shows that such indebtedness was claimed on one side, it is denied on the other, and there are no proofs sufficient to establish such indebtedness.
It is also argued that the court has treated James H. McVeigh and James L. Chamberlain as insolvent, without proof in the record of the fact. This is founded upon the assumption that the commissioner was obliged to return the evidence of insolvency along with his report. Such, however, is not the case. He did all that was necessary, in the absence of a special request to report the evidence, when he reported the fact of their insolvency. Code, chap. 128, sec. 27.
The last assignment of error is that the appellee’s right to subrogation was barred by the statute of limitations. This objection is also unfounded. Subrogation arises in every case
In any and every view we take of the case, the decree of the circuit court of Loudoun county appears to be right, and it must therefore be affirmed.
Decree affirmed.