118 Va. 388 | Va. | 1916
delivered the opinion of the court.
Ferdinand Borer, formerly a citizen of Virginia, residing at the city of Boanoke, was a large land owner in Montgomery and Botetourt counties and the city of Boanoke. In the years 1884, 1885 and 1886 a number of judgments were recovered against him, all of which were duly docketed. In the year 1886, shortly after the recovery of the judgments above referred to, Borer left the State of Virginia and became a resident of the State of West Virginia, where he continued to reside until his death, on the 23d day of March, 1906. W. D. Martin, the sheriff of Montgomery county, was duly appointed administrator of Borer on the 8th of May, 1906. Shortly thereafter W. H. Pierce, M. H. Tompkins and Lewis and Ferdinand Harvey, judgment creditors of Borer, suing as the hill stated, “for themselves and all other lien creditors of Ferdinand Borer, deceased, who will contribute to the expenses of this suit,” filed their hill in chancery in the Circuit Court of Montgomery county against W. D. Martin, administrator of F. Borer, deceased, Eulalie Powell, P. H. Borer and others, heirs at law of Borer; L. H. Cocke and others, trustees under
This cause was duly matured, and tbe bill taken for confessed as to all of tbe defendants except tbe Virginia Iron, Coal and Coke Company, wbicb appeared at tbe October term, 1906, and filed its demurrer and answer to tbe bill. In this demurrer tbe complainants joined, and by a decree subsequently entered it was adjudged that tbe demurrer be overruled.
At tbe February term, 1907, Zirkle, tbe administrator of McClanaban, who held judgments against Ferdinand Rorer, deceased, filed bis petition in tbe cause, in wbicb be stated, among other things, that be bad been informed that this suit “was brought for tbe purpose of subjecting tbe real estate of F. Rorer, deceased, to tbe payment of judgments wbicb constituted liens on said real estate,” and tbe prayer of tbe petition was, “that be may be allowed to file this, bis petition in tbe above-mentioned cause, wbicb be understands is a creditor’s suit; that all necessary accounts may be taken; that tbe priority of tbe liens against tbe estate of F. Rorer, deceased, may be fixed, and that your petitioner may be granted such other, further, and general relief in tbe premises as tbe nature of the case may
From time to time other creditors of Rorer, holding unsatisfied judgments, came into the cause, and by leave of court filed their petitions for the enforcement of their judgments. 'In these petitions it was stated that there were other lands than those mentioned in the bill liable to the Hen of the judgments, namely, certain properties in the city of Roanoke and the counties of Montgomery and Botetourt, and it was asked that the claimants of these lands be made parties defendant in-the cause. We shall not set out the several petitions in extenso,: but will content ourselves with stating in general terms their legal effect.
On the 6th day of May, 1911, leave was granted Zirkle, administrator as aforesaid, to file his amended petition, which was accordingly done, and process was directed to be issued against the defendants therein named. Among the defendants were: W. D. Martin, administrator of F. Rorer, deceased, the city of Roanoke, M. L. and T. O. Yest, Roanoke city school board, W. A. Burke, B. S. Headley and Mary R. Yates. Process on this amended petition was duly issued on May 6, 1911, within five years from the appointment of Rorer’s administrator, and was served on W. D. Martin, administrator of Rorer, on May 8, 1911, and on the other defendants named therein in May of that year.
This amended petition, after setting' out the proceedings theretofore had in the cause, alleged, among other things, that at the time of the docketing, in the city of Roanoke, of the judgments held by the petitioner, there were á number of lots of land theretofore owned by Rorer which he had sold to other
W. J. Blair and P. H. Eorer were also permitted to file petitions, by decree of May 6, 1911, but it is not deemed necessary to refer to them more specifically, as they are in substance similar to the petitions filed by McOlanahan’s administrator.
At the October term, 1911, the Eoanoke city school board and F. Fallon appeared and by leave of court filed pleas of the statute of limitations to the amended petition of McOlanahan’s administrator and to the petitions of Blair and P. H. Eorer. The two pleas, which are identical, are as follows:
“This defendant, not confessing or acknowledging all or any part of the matters and things in said petition contained to be true in manner and form as the same are therein set forth, for plea nevertheless to the said bill (petition) doth plead and aver that, if the complainant ever had any cause of action or suit against this defendant for or concerning any of the matters in said petition mentioned (which this defendant doth in no sort admit) such cause of action or suit did accrue or arise above ten years before the filing of said petition, and more than ten years before issuing execution or serving or suing out process against this defendant to appear to and answer the said petition.”
Moomaw, one of the defendants named in the second amended petition, appeared and filed his demurrer and answer, denying that the judgments set up in the petition were liens on the lands claimed by him, because process against him to answer said petitions was issued on October 24, 1911, more than five years after the qualification of Rorer’s administrator; because he became the purchaser of said land in 1882 and 1883 and put his deed to record in 1886, during all of which time he had been a resident of the city of Roanoke, in open and notorious possession of said land; that no executions were issued on said judgments, nor were they revived within ten years from their dates, and therefore the right to enforce them against the land claimed by him was barred; that Ferdinand Rorer was the owner of a vast estate at the time of his death, which was a primary fund for the payment of his debts, and there were other lands in the city of Roanoke aliened after the date of the deed to him, which should be first subjected; that the dealings of Rorer were so extensive that it would require reference to a commissioner to ascertain the facts; and that the land so primarily liable was sufficient to discharge the judgments binding on his real estate. Moomaw then prayed that his answer may be treated as a cross bill; that P. BE. Rorer may be required to answer the same, but not on oath; that the cause be referred to one of the commissioners of the court with instructions to take an account of the estate of which F. Rorer died seized and possessed, as well as an account of what moneys P. BE. Rorer received from said estate, and also an account of what lands F. Rorer sold and conveyed after the date of the purchase of the land by D. O. Moomaw from F. Rorer, and on which, for any reason, the aforesaid judgments may be liens. The other defendants to this petition filed like answers.
On December 9, 1911, the city of Roanoke and Frank Fallon
McClanahan’s administrator, Blair and P. H. Rorer excepted to these answers so far as they set up the defense of the statute of limitations, upon the following grounds: “That the several defenses attempted to be set up thereby are insufficient in law because the record and the proceedings herein show:
“(1) That the judgments in said petition mentioned were duly recovered against E. Rorer in a court of competent jurisdiction in the years 1885 and 1886 and were duly docketed:
“(2) That the said Rorer, at the time said judgments were recovered, was a citizen of the State of Virginia, and thereafter, within ten years from the date of said judgments, to-wit, on the-day of-, 1886, departed without said State and became a citizen of another State, to-wit, the.State of West Virginia, continuously residing there until his death, to-wit, on the 23d day of March, 1906, thereby obstructing the holders of said judgments and the parties entitled to sue thereon in the prosecution of their rights, respectively.
“(3) That on the 8th day of May, 1906, W. D. Martin was duly appointed administrator of the said-E. Rorer, deceased, and within five years thereafter, to-wit, in the year 1906, this suit was brought, and on the 12th day of February, 1907, an order' of reference was therein entered, and within the said
The issue thus presented between the petitioners, McOlanahan’s administrator, Blair and P. H. Borer, judgment creditors of F. Borer, deceased, and the respondents, vendees of Ferdinand Borer, claiming lands bound by those judgments, was whether those vendees could, in their own right, plead the statute of limitations applicable alone to Ferdinand Borer, it being conceded that the judgments were not barred as to Borer, or his administrator, or his heirs.
On May 9, 1912, the cause came on to be heard solely upon the question as to the right of the vendees of Borer to interpose the bar of the statute to these judgments, when they were not barred as to Borer, the judgment debtor, and the court decided that “The statute of limitations to the judgments set out in the said petitions was not suspended as against the vendees and grantees of land from F. Borer . . . although the statute of limitations may have been suspended as to F. Borer, the judgment debtor;” and accordingly the court held that all of the judgments were barred as to each of said vendees and those claiming under them, except as to one of said judgments, namely, the judgment of E. Gr. McClanahan, recovered in June, 1886, upon which it appeared that an execution issued in June, 1896, and was returned “no effects;” and dismissed each of said petitions with costs against the petitioners, so far as they sought to set up the judgment above mentioned, except the judgment of McOlanahan’s administrator.
At tbe May term, 1912, upon.a supplemental bill then filed, it appearing that tbe petitioner, Blair, bad become tbe owner of all tbe judgments set up in tbe original bill, it was directed that tbe cause should thereafter proceed in bis name as plaintiff, and at bis cost, and that be be substituted to all tbe rights and remedies of bis assignors and entitled to all of tbe benefits of tbe original suit, and all of tbe proceedings bad therein, and that be is entitled to all tbe relief prayed for in tbe original bill of complaint, and all of tbe relief pertaining to tbe enforcement of tbe judgments aforesaid. Thereupon, Blair, by leave of court first obtained, filed an amended bill of complaint. This bill sets out tbe proceedings theretofore bad in tbe cause, namely, tbe filing by bis assignors, Tompkins, Pierce and the Harveys, of tbeir original general creditors’ bill against Perdinand Borer’s administrator, heirs, and others, in 1906, tbe object of which was to enforce tbe judgment held by tbe plaintiff against tbe land of Borer subject thereto; tbe entry of an order of reference in said cause directing an account, among other things, of tbe real estate owned by Borer at any time after tbe rendition of tbe judgments, tbe liens thereon, and tbe conveyances and transfers thereof; tbe filing of tbe petitions of McOlanaban’s administrator, W. J. Blair and P. H. Borer, in May, 1911, witbin five years from tbe appointment of Borer’s administrator; tbe prayers of said petition, tbe assignment of tbe judgments set up in tbe original bill; tbe lands which were liable to tbe lien of said judgments, namely; certain lands in tbe counties of Montgomery and Botetourt, and Boanoke city, belonging to Borer, and which be bad never aliened; tbe several lots and parcels óf land in tbe city of Boanoke,
The prayer of this bill was that the parties above referred to, claiming said lands, be made parties defendant thereto and to the original bill, and required to answer the same; that the judgments held by the.complainants might be declared liens on the said lands and enforced against the same; that the execution of the decree for an account entered in February, 1907, be proceeded with, and all other necessary and proper accounts be taken, and for general relief.
All of the defendants to this amended bill—the Roanoke city school board, Moomaw, and others—appeared and filed their demurrers and answers thereto. These answers, among other things, averred that there were other lands in the city of Roanoke owned by Rorer at the time of his death which were liable to the lien of said judgments, and which should first be sold, and particular mention was made of a tract of one acre of land in the city of Roanoke, conveyed to F. Rorer and P. H. Rorer by John Trout, by deed dated May 5, 1874, and now in the possession of the Norfolk and Western Railway Company but which was never in fact conveyed to said company.
Upon the coming in of these answers, the following order was entered on July 12, 1912: “Upon consideration whereof, it being suggested in said answers that full justice cannot be done, or the whole controversy in this cause ended, without the presence of the Norfolk and Western Railway Company, it is ordered that the' bill of complaint be amended making said Norfolk and Western Railway Company a party defendant thereto. And it is further ordered that, upon said amendment
At the Pebruary term, 1913, the Norfolk and Western Railway Company filed its demurrer and answer to this amended bill, the ground of demurrer being that “it should not be required to answer said amended bill, for on its face it purports to convert the litigation in this cause into a general creditors’ suit against the estate of P. Rorer, when as a matter of fact, as shown upon the face thereof, the original bill in this cause was not a general creditors’ suit, and cannot be so made for the purposes set forth in said amended bill, or for- any other purposes, and this respondent says that said amended -bill should be dismissed and the same stricken from the record in this cause.”
The answer of the Norfolk and Western Railway Company avers that-the respondent was in possession of said land under a deed from Marshall Waid and P. L. Terry, and denies that the judgment debtor, Rorer, ever had any title' thereto. The answer further relies upon the defense of the statute of limitations and adverse possession.
The commissioner returned his report to the July term, 1914. In this report the contentions of the judgment creditors were sustained and the commissioner reported that the petitioners, McClanahan’s administrator and others, were the owners of the several judgments asserted by them; that these judgments were valid, subsisting charges against F. Eorer and his estate for the amounts claimed to be due thereon, and that they were not barred by the statute of limitations; that each of the judgments had been duly docketed and indexed as required by law, and were valid and subsisting liens upon the lands claimed by the Norfoik and Western Eailway Company, the school board of the city of Eoanoke, D. C. Moomaw, and the others heretofore mentioned, as set out in the pleadings filed herein. Then follows a description of the several tracts of land owned by Eorer and unaliened by him at the time of his death, and
On the first day of the July term, 1914, the Norfolk and Western Railway Company and other defendants who had filed demurrers, appeared and insisted upon a decree upon their demurrers to the amended bill. The judgment creditors produced a letter from the commissioner advising the court that his report would be filed within a day or two, and asked that a consideration of the case be deferred until the commissioner’s report would come in, when the whole case, with all of the facts, would be before the court; but this motion the court overruled, and entered a decree sustaining the demurrer to the amended bills and petitions aforesaid, and dismissed the same as to the Norfolk and Western Railway Company, Roanoke city school board, Fallon, Yest, the Moomaws, Nininger, the city of Roanoke, Burke, Headley and Yates. To this decree an appeal was awarded by one of the judges of this court.
As we have seen, the judgments against Ferdinand Rorer were obtained in 1884, 1885 and 1886, and were duly docketed as required by law before the date of the recordation of the deeds under which the appellees claim.
The contention of appellants is that the bill filed by Pierce and others, who sued for themselves and all other lien creditors of Ferdinand Rorer, deceased, was in its inception a creditors’ bill. It makes the administrator and heirs.at law parties; it is brought in the circuit court of the county in which one of the parties, to-wit, the administrator of Ferdinand Rorer, resided, and in which a part of the land lies which it is sought to subject to the lien of the judgments. Rorer being dead, under the decision of this court in Ewing’s Admr. v. Ferguson’s Admr., 33 Gratt. (74 Va.) 548, all of his debts were by operation of law charged upon his estate, and the term “all liens” used in the decree in that case the court held “must be taken to mean all debts which may bind the real estate.” That this
This was the course pursued in Ewing’s Admr. v. Ferguson’s Admr., supra. It was there contended by appellants, “that the paper purporting to be an amended bill is not an amended bill, because it is a departure from the original hill, and makes a new case, both in respect of parties, and in the relief sought; and that the court erred when it sustained the demurrer, in giving leave to amend, instead of dismissing the plaintiff’s bill; and that the amended bill should have been struck from the file, on motion.” But this court was of opinion that “although the original bill was not filed as a creditor’s
In Stephenson v. Taverners, 9 Gratt. (50 Va.) 388, it was held that “A creditor has a right to bring a suit for his claim; but he ought to bring it for himself and all other creditors;” and that not having done so, the other creditors had a right, on petition, to come in and be made eoplaintiffs with them. It was also held that, when in a suit for the administration of assets a decree is made for an account of outstanding claims against the estate, it operates a suspension of all other pending suits of creditors, who must come in under the decree, which is considered a decree in favor of all the creditors.
In Harvey's Admr. v. Steptoe’s Admr., 17 Gratt. (58 Va.) 289, it was held that where there was a decree directing a commissioner to take an account of all outstanding and unsatisfied debts, the court took upon itself the administration of the assets, and would have restrained parties afterwards from proceeding by separate suits.
In Kent's Admr. v. Cloyd's Admr., 30 Gratt. (71 Va.) 555, the same doctrine was enunciated and it was held that “the same result follows when the heir or devisee is made a party with a view to a sale of the real estate.”
In Ewing’s Admr. v. Ferguson's Admr., supra, the court in the course of its opinion says: “We think it is by no means clear that the plaintiffs, including the petitioners, could not have maintained their case upon the original bill;” but held that from the time the decree for an account was rendered in that case, it was no longer a separate creditor’s suit, but was a general creditors’ suit; and that the petitioners, from the
We think that the bill filed by Pierce and others was in substance as well as form a creditors’ bill; but if that proposition be open to doubt, it became a creditors’ bill upon the entry of the decree referring it to a commissioner to report an account of the real estate owned by Borer at any time after the rendition of either of the judgments mentioned in the bill, the liens thereon, the rental value, the conveyances and transfers, if any, which have been made of any of said lands, and any other matters deemed pertinent by him or required by any party.
But if that be not so, all doubt must be removed by the petitions filed by McOlanahan’s administrator and others, which set out in detail other lands bound by the judgments, and bring before the court all those who claim to be interested in those lands adversely to the lien creditors. In other words, again to refer to Ewing’s Admr. v. Ferguson’s Admr., while the petitions and amended bill “amplify the statement of the case, and present it with greatér precision and fullness, and with more directness and some averments which were not expressed in the original bill, it does not make a new case from that which was made by the original bill and the petitions.”
The subject of amendments to bills in equity was fully treated by Judge Staples in Belton v. Apperson, 26 Gratt (67 Va) 207, and though the subject has since been dealt with by this court but little has been added to what was said in that cáse. It was there held (see first and second syllabi) : “The rule in equity in regard to amendments is that they may be made when the bill is defective in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself. The plaintiff will not be permitted to abandon the entire case made by his bill, and make a new and different case by
The contention upon the part of the appellants in the case before us is far within the principle announced in Belton v. Apperson. There is no defect in the prayer for relief; there is no ground upon which to charge an abandonment of the case made in the original bill, and no effort to make a new and different case by way of amendment; nor is the frame and structure of the bill altered in substance. Other lands subject to the lien of the judgments owned by the debtors since their rendition are brought to the attention of the court, and as those lands were the subject of adverse claims, it was proper to bring those claimants before the court in order that they might have an opportunity to defend their rights. The bills and petitions have but one object, and that is the satisfaction of the judgments against Ferdinand Borer. This purpose is not for a moment lost sight of in the pleadings, and we find no support whatever for the proposition that the amended pleadings are a departure from the original bill.
But it is objected that the original bill does not ask that the administrator of Ferdinand Borer be required to state an account of his administration of the assets of his decedent. It is a Somewhat bold statement to say that in a record so voluminous there is no evidence in support of any given assertion, but we recall no suggestion of the existence of personal assets which ever came into the hands of Borer’s administrator. There was every incentive to stimulate a search for such personal assets, which, if they could have been shown to exist, would have been in relief of the real estaté sought to be charged, but neither the judgment creditors nor the owners of the aliened parcels of real estate sought to be subjected to the payment of the judgments have brought to the attention of the
Upon this branch of the case we are of opinion that the original bill was in form and substance a creditors’ bill, especially in view of the fact that when it was filed Rorer was dead and all his debts, however evidenced, constituted charges upon his real estate; that if this were not so, it was converted into a creditors’ bill by the decree for an account; and that, leaving that bill and that account out of consideration, the petitions referred to in the statement of facts, filed within five years from the qualification of the administrator, brought all of the creditors of Rorer before the court and all of his real estate, bound by those debts by lien or otherwise, into the suit, there to be administered.
It is earnestly contended, however, that if all this be true that the liens and debts asserted are barred by the statute of limitations.
The judgments were obtained, as we have seen, in 1884, 1885 and 1886; the original suit was not brought until September, 1906, more than ten years after the rendition of the judgments. But the contention of the appellants is that section 3577, which prescribes the limitation upon suits to enforce judgments, comes within the influence of section 3578, which provides that section 2933 shall apply to the right to bring a suit to enforce the lien of a judgment.
Section 2933 is as follows: “Where any such right as is mentioned in this chapter shall accrue against a person who by departing without this State or by absconding or concealing himself, or by continuing to reside without the State, or by any other indirect way or means shall obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time in which the said
It was held in Ficklin v. Carrington, 31 Gratt. (72 Va.) 219, that “Where a debtor who resides in the State removes, after contracting the debt, to another State, the removal itself is an obstruction to the prosecution of a suit by the creditor to recover the debt, and the statute of limitations will not run against the debt while the debtor remains out of the State.”
That case was followed in Cheatham’s Admr. v. Aistrop’s Admr., 97 Va. 457, 34 S. E. 57, the second syllabus of which is as follows: “The removal of a judgment debtor from the State is of itself an obstruction to a suit to enforce the judgment, and the statute of limitations does not run against the judgment while the debtor remains out of the State.”
That the debtor removed from this State shortly after the rendition of the judgments and remained out of the State until his death is not disputed—indeed the decree appealed from recognizes that his absence from the State was such an obstruction as prevented the running of the statute of limitations in favor of Eerdinand Borer personally, and the appellees have made no complaint of the decree in that respect; but their contention is that as the debtors of Borer have interposed no obstruction as to lands sought to be charged lying within this Commonwealth and within the jurisdiction of its courts, the creditors were at liberty at any time to assert their claims against the property which they seek to charge, and having failed to do so the statute of limitations continued to run in their favor, and now constitutes a complete bar to the claims of appellants.
In Brown v. Butler, 87 Va. 621, 13 S. E. 71, the identical point was made, and Judge Lewis, speaking for the court, said: “We are of opinion that so long as a judgment is in existence as against the judgment debtor, the lien thereof
In Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682, the court said: “There is no force in the suggestion that although the defense of the statute of limitations would not avail Jas. B. Ewell, because judgment had been rendered against him before the bar took effect, it nevertheless is a protection to Geo. W. Ewell, because he is a stranger to the judgment and mortgage, and the suit now pending was not brought till after the time limited for an action to recover the debt. Eor the present suit is not to recover the debt, nor is it a suit against Geo. W. Ewell. He is a party defendant because he has an interest by a subsequent conveyance in the lands sought to be sold under the mortgage. He has an equity of redemption, which entitled him to prevent a foreclosure and sale by payment of the mortgage debt; but the debt he has to pay is not his own, but that of Jas. B. Ewell. If he can show that that debt no longer exists because it has been barred by the statute of limitations, he is entitled to do so; but he must do it by showing that it is barred as between the parties to it.
But we are of opinion that the terms of the statute admit of no such construction. The language relied upon by appellees is, “But this section shall not avail against any other person than him so obstructing notwithstanding another might have been jointly sued with him if there had been no such obstructions.” Had the sentence stopped with the words “so obstructing,” the argument in their favor would certainly have been stronger, but it does not stop there but proceeds, “notwithstanding another might have been jointly sued with him if there had been no such obstruction,” which shows clearly, we think, that the legislature had in mind a suit in which there was more than one defendant, one of whom left the Commonwealth, we will say, and by so departing obstructed the plaintiff in the prosecution of his right, while the other remained in the Commonwealth and did no act to obstruct the remedy as to himself.
In Monk v. Exposition Corporation, 111 Va. 121, 68 S. E. 280, Judge Whittle, speaking for this court, said: “It is true that in some cases one creditor may set up the statute of limitations to defeat the demand of another creditor against the common debtor, but to sustain such plea it is essential to show that the cocreditor’s debt is barred as between himself and his debtor.” Citing McCartney v. Tyrer, 94 Va. 198, 26 S. E. 419, and Callaway v. Saunders, 99 Va. 350, 38 S. E. 182.
In Flanary v. Kane, 102 Va. 541, 46 S. E. 312, 681, Judge Buchanan, speaking of the nature and extent of judgment liens and of the rights of the holder thereof in a court of equity, says: “A judgment creditor who comes into a court of equity to enforce his lien upon land is not asserting an equitable right
In passing, therefore, upon the statute of limitations, we do so uninfluenced by the fact that the lands to be charged are in the hands of alienees of Ferdinand Borer. Those alienees failed to put their contracts and deeds with respect to the lands purchased by them upon record, and, therefore, as to the creditors of the judgment debtor such contracts are mere nullities and have no existence in contemplation of law. But if the contention of appellees be sound—if they can be permitted to show, by virtue of rights thus acquired, that they have not obstructed the creditor in the assertion of his remedy and, therefore, the statute of limitations continues to run in their favor, surely it cannot be said that the contracts under which they claim to have purchased land from Borer are without effect, for their effect would be, if appellees’ contention were
In Price v. Wall, 76 Va. 336, 33 S. E. 600, it was held that “Appellant having failed to record his deed as provided hy law, the land thereby conveyed is bound by the lien in question as effectually as if the judgment debtor had never parted with it.”
In Motley v. Carstairs, 114 Va. 432, 76 S. E. 949, in speaking of the doctrine of laches, this court said it “is not applicable to. this case. The appellees are not enforcing an equitable but a legal right, which is not subject to the equitable doctrine of laches.”
And Minor on Eeal Property, vol. 1, sec. 699, says: “It is to be observed that a judgment creditor who comes into a court of equity to enforce his lien upon the debtor’s land is not asserting an equitable right or seeking relief which it is in the court’s equitable discretion to grant or deny. His judgment is a legal lien, created expressly by statute. Hence, while it is an ordinary rule of the court of chancery that he who asks equity must do equity, this principle has no application here, because the judgment creditor’s right to resort to the court of equity to enforce his lien is a legal right, without terms and conditions imposed.”
The court has been. ref erred to many other authorities by appellants and appellees bearing upon their respective contentions. They have been considered, but a discussion of them would- unduly prolong this already too much protracted opinion. In view, however, of the apparent reliance of appellees upon Dorr v. Rohr, 82 Va. 359, 3 Am. St. Rep. 106, and Miller v. McIntyre, 6 Peters 61, 8 L. Ed. 320, we will observe that those cases can have no bearing upon the questions discussed in this opinion, as they are both wanting in the essential element of being creditors’ suits.
For the reasons given, we are of opinion that the decrees appealed from should be reversed, and the cause remanded to the circuit court to be there proceeded with in conformity with the views herein expressed in order to a final decree.
Reversed.