80 Va. 251 | Va. | 1885
delivered the opinion of the court.
In November, 1860, soon after the death of the widow of Joseph Hutcheson, deceased, a friendly suit in equity was instituted in the county court of Mecklenburg county, to which the heirs and distributees of the said Joseph Hutcheson were parties, to sell the land and slaves held by the widow in her lifetime as dower, and to distribute the proceeds among those entitled thereto. Sales of the land and slaves were made by commissioners of the court appointed for the purpose, who did}' reported their proceedings to the court. Of the eleven parties in interest, six resided in the county of Mecklenburg; the others were non-residents, residing in the States of Tennessee and Arkansas. At the January term, 1863, a decree was entered directing the commissioners to pay to the distributees the sums ascertained to be due them respectively; among them to Mrs. Rebecca A. Brown, afterwards Mrs. Rebecca A. Grubbs, a daughter of Joseph Hutcheson, and a non-resident, the sums ■ of 8557.31 and $431.57, with interest on each sum from that time until paid. It is admitted that nothing has ever been paid on account of this decree, either to Mrs. Grubbs in her lifetime, or to her personal representive since her death. But it is claimed by the commissioners that the fund, or such part of it as was payable under the decree to the non-resident pai’ties, was afterwards invested in Confederate securities under an order to that effect granted by a circuit judge, pursuant to the act of assembly of March 5, 1863.
To September rides, 1880, of the circuit court of Mecklen-
The statute, Code 1873, chapter 182, section 1, provides that “ a decree for land or specific personal property, and a decree or order requiring the payment of money, shall have the effect of a judgment for such land, property, or money, and be embraced in the word ‘judgment,’"’etc. And by section 2 it is provided that “the persons entitled to the benefit of any decree or order requiring the payment of money shall be deemed judgment creditors, although the money be required to be paid into a court, or a bank or other place of deposit. In such case, an execution on the decree or order shall make such recital thereof, and of the parties to it, as may be necessary to designate the case; and if a time be specified in the decree or order within which the payment is to be made, the execution shall not issue until the expiration of that time.” It is very clear, therefore, that under the decree of the county court Mrs. Grubbs became a judgment creditor of the defendants; and the question is, whether, inasmuch as no execution has ever been issued on that decree, the right to enforce the lien thereof in a court of ecpiity was barred at the time the present suit was brought. It is undisputed that all proceedings to enforce the judgment at law are barred by the statute. Then, does the lien, which is but an incident of the judgment, remain to be enforced in a court of equity? A brief reference to the law respecting judgment liens on real estate and the means of enforcing them, as it existed prior to the revisal of 18 If), is essential to an intelligent determination of this question.
The laAA’ also proA’ided the more eomprehensiA’e AA'rit of ca. sa., AA’liieh extended to all the lands of the defendant, and by tlie kwy of AA'hieli the creditor acquired an inchoate lien, AA’hicli became consummate upon the defendant’s taking the oath of insolA’ency. If the latter died in execution, the lien Avas lost. Stuart v. Hamilton's ex’ors, 8 Leigh 503.
The. time, liOAveA’er, AvithiiiMAdiich executions and aatíís of scire faeia* could ho issued on judgments Avas prescribed by statute; and in Flemings ex’or v. Dunlop, 4 Leigh 338, it aaus said by Judge Carr that Avhere no execution issued AA’ithin the prescribed time the judgment max annihilated.
The Iuaa’ Inning thus proA’ided legal remedies for the enforcement of judgments, it Avas only in cases AA’here those remedies AATere inadequate, as AA’here the estate sought to he charged Avas an equitable estate, or AA’here the rents and profits of the lands AA’onld not pay the debt AA’ithin a reasonable time, that equity AA’ould take jurisdiction and decree a sale. But in no case does it appear oA’er to haA’e been twen intimated that equity Avould afford relief AA’here the right to revh’e or proceed under the judgment at kiAv avrs lost.
finch AA'as the laAA’ at the time of the reA’ision in 1849. And the legislature cannot he presumed to haA’e intended to alter it further than its intention to do so is manifested by the express language employed or by necessary implication therefrom. By that revision the AA'rit of ea. sa. Avas abolished, and the lien of the judgment AA’as expressly given on all the real estate of or to Avhich the defendant is possessed or entitled. The lien of the fi. fa. was enlarged, and the operation of the elegit (AA’hich, Iioav-ever, is hoav abolished) Avas extended so as to embrace, not a vmetg only, but all the debtor’s real estate. And it AA’as further provided that “the lien of a judgment may always he enforced
It will thus be seen that the judgment creditor was given the choice, either to proceed at law under the enlarged writ of elegit to enforce his judgment out of the whole real estate of the defendant, or to proceed at once in a court of equity, in which by the statute he is entitled to a decree for the Mile of the lands, if the rents and profits thereof appear insufficient to pay the judgment in live years. It is undeniable that, prior to the abolition of the writ of elegit, in 1872, if the creditor chose to proceed by elegit, he must have* done so within the time prescribed by the statute. The statute provides that, “ on a judgment, execution may be issued within a year; and a scire fcu-ias or action may be brought within ten years from the date of the judgment; and where execution issues within the year, other executions may be issued or a scire facias or action may be brought within ten years from the return day of an execution, on which there is no return by an officer, or within twenty years from the return day of an execution, on which there is such return; except,” etc. Code 1849, chapter 186, section 12; Code 1873, chapter 182, section 12. And, by the following section it is provided that, “no execution shall issue, nor any scire facias or action be brought, on a judgment in this State, other than for the commonwealth, after the time prescribed by the preceding section, except,” etc. Id. section 13.
The legislature Inning thus carefully prescribed the time within which the remedies at law for the enforcement of a judgment may be resorted to, could it have intended to leave the remedy in point of time unlimited in a court of equity? From what has been said, it is plain that to hold that it did, would be a most unreasonable construction, not warranted by the terms of the statute, and opposed to the manifest policy of the legislature. ¡Surely, if such an anomaly as the right to enforce an incident- — namely, the lien — of the judgment after the judgment itself is “annihilated” was contemplated, the in
It is needless to multiply words and authorities upon a proposition, which we deem too plain to admit of doubt. Our conclusion, therefore, is that the lien of a judgment is a legal lien, conferred by the express terms of the statute, though 'enforceable in equity, and ceases with the life of the judgment upon which it is founded. The subject was ably and elaborately considered by the Supreme Court of Appeals of "West Virginia, in the recent ease of Werdenbaugh v. Reid, 20 W. Va. 588, .and the same conclusion reached.
Tt only remains to say, that while the general rule in equity is not to apply the bar of statutes of limitation in suits to enforce equitable demands against trustees and other fiduciaries, (1 Pom. Eq. section 411); 1 Story’s Eq. section 529), this rule has no application where the demands are merged in a judgment, which as such is sought to be enforced, as in the present ease. This proposition, however, requires no discussion, as we understand it to be conceded by the counsel for appellee.
DECREE REVERSED.