112 Va. 574 | Va. | 1911
delivered the opinion of the court.
These two suits, the first at law and the second in chancery, from the Circuit Court of Tazewell county, were heard together by this court, the subject matter in controversy being so involved in both as to make that the most convenient method of considering the question to be determined.
It appears that on November 22, 1905, Harman Blankenship bought from Hurt & Hurt a stock of merchandise, the consideration for which was his negotiable note for $530, payable twelve months after date, and endorsed, as an accommodation endorser, by his sister, Ida Blankenship. The note- not being paid, Hurt & Hurt brought suit and obtained judgment thereon in May, 1907, against the maker and endorser, each of whom had been duly served with process. In June, 1907, Hurt & Hurt brought a chancery suit against these judgment debtors to enforce against their lands, respectively, the lien of their judgment. In this chancery cause process was duly served upon each of the defendants. After this bill was filed, Ida Blankenship, the sister, sold and conveyed her land, mentioned therein, to the plaintiffs, in consideration of an assignment to her of their judgment against her brother, and thereupon secured a decree in the pending chancery cause subrogating her to all of the rights of the judgment creditors with respect to such judgment. To her petition asking for this subrogation her brother was made a party defendant and duly served with process. The cause was then referred to a commissioner to take an account of the lands of Harman Blankenship and the liens thereon. Notice of this account was duly served upon the defendant, after which the commissioner took the required account, reporting other liens, and, in favor of Ida Blankenship, the judgment asserted in the bill, the right to which she had been subrogated. This
A number of defenses to this motion were interposed, which it is not necessary to mention. Upon the trial, the parties submitted the matter in controversy to the determination of the court. After hearing the evidence, which included the record in the chancery cause, the court, upon the issue of infancy, held that Harman Blankenship was an infant when the judgment in controversy was obtained and .vacated the same and set it aside. Subsequently the court, in the chancery cause, held that Ida Blankenship was entitled to no relief therein, her judgment there asserted hav
Viewed from the standpoint of a demurrer to the evidence, the testimony fails to satisfactorily or sufficiently establish the claim of Harman Blankenship, that he was under twenty-one years of age either when the judgment in question was obtained, or when the note upon which it was based was executed. The burden of proof was upon the plaintiff, in the motion to vacate the judgment, to establish his claim of infancy. The only evidence offered in support of such claim was that of plaintiff’s brother, Oscar, and himself, both shown to be interested in defeating the judgment. Neither of these witnesses profess to know with certainty the age of Harman Blankenship. Neither has ever seen any record of his age, and both admit that what they state with respect to his age was heard from other members of the family, whose names are not mentioned. The testimony of Harman Blankenship is that he did not know his age, that members of his family had told him that he was born about the 25th of March, 1888 or 1889; that he was either twenty or twenty-one years of age when testifying. This witness admits that for several years he had traded and done business as an adult; that the note upon which the judgment was rendered was given to Hurt & Hurt for a stock of goods; that he purchased these goods as an adult, and sold the same as such, and also purchased goods from wholesale firms; and that after merchandising at Big Creek, in Tazewell county, he carried on a mercantile business at Raven, in the same county. The testimony of Oscar Blankenship is that he did not know his brother’s exact age; that he had never seen any record of it; that his information from the family was that Harman was
It was admitted on the trial that the defendants could prove that the plaintiff, Harman Blankenship, told Hurt & Hurt dt the time the note in question was executed that he was then twenty-one years of age; and that he told W. B. Spratt about the same time on two different occasions that he was then twenty-one. This evidence is confirmed by the testimony of the plaintiff, who says that he purchased the goods for which the note was given as an adult and sold the same as such.
In this case Harman Blankenship seeks, under the claim of infancy, to escape responsibility for his admittedly just obligation, and to impose the burden of that obligation upon his sister, who has, as his surety, been compelled to sell her land to meet his debt. To accomplish this he must adduce clear and satisfactory proof that he was, as now claimed, an infant when the obligation in question was assumed. Taking the plaintiff’s evidence as a whole, it leaves the mind not only in grave doubt as to the truth of the claim, but with a decided inclination to the conclusion that the present claim of infancy is an afterthought. The evidence for the plaintiff on this issue is uncertain and inconclusive, and when it is considered in connection with the fact that he represented himself to be of age when
The order in the common law case, vacating the judgment, now belonging to Ida Blankenship, must therefore be set aside and the motion to vacate overruled; and the decree in the chancery cause, dismissing the original and amended petitions of Ida Blankenship, must be reversed and the cause remanded to the circuit court for further proceedings, enforcing the lien of the judgment in-favor of Ida Blankenship against the land of Harman Blankenship in the proper order of its priority.
Reversed.