30 W. Va. 548 | W. Va. | 1887
Suit in equity, commenced December 30, 1882, in the Oir-quit Court of Wood county, by J. L. Morehead against R.. E. Horner and others, to subject certain real estate to the payment of a debt alleged by the plaintiff to be a lien thereon. The cause was subsequently transferred to the Circuit Court of Harrison county, which latter court, by its decree, entered September 28, 1886, dismissed the .bill, and the administrator of the plaintiff (the plaintiff having died before the final decree) has appealed from said decree to this Court.
This is a branch of the case of Johnson v. Young, 20 W. Va. 614. The opinion qf the Court in that case shows fully
It'is further insisted, that Morehead by becoming the owner of the judgments and also the 138 acres of land upon which they operated as liens, released J. B. Johnson, one of the judgment debtors, and thereby deprived Mrs. Horner, if compelled to satisfy these judgments, of her right of substitution or recourse against said Johnson; and having thus impaired this right of substitution he lias in equity destroyed his claim for indemnity against the land conveyed to Mrs. Horner. If the house and lot conveyed to Mrs. Horner had been secondarily instead of primarily liable for the indemnity of Morehead, the position here asserted would prevail, but the fact is this house and lot is by the contract of the parties made primarily and solely liable for such indemnity. It is therefore, wholly immaterial who, or what secondary security, Morehead should release. Mrs. Horner or the house and lot being primarily bound to Morehead, she could under no circumstances have any right of substitution against any one or anything; and consequently she could not be affected' or prejudiced by the release of such secondary security. It is finally claimed that the judgments under which the plaintiff claims are barred by the statute of limitations. It is not pretended, however, that said judgments were not in full force in 1865, at the time the deed was made to the trustee for Mrs. Horner in which the lien for indemnity was retained in favor of Morehead. The lien here relied upon is that retained in the deed, and not the lien of the judgment. In Wayt v. Carwithen, 21 W. Va. 516, this Court held that “the right to enforce the lien of an equitable mortgage is not lost by the lapse of time, or barred by the statute of limitations, until such time has elapsed as would bar relief upon the instrument creating such lien— the dignity and character of the lien depending upon the nature of the instrument creating it, and not upon the- antecedent debt or lien intended to be revived or preserved.” The lien retained here to indemnify Morehead is in the nature of a vendor’s lien, and was not, therefore, barred at Ihe time this suit was instituted.
For these reasons, I am of opinion that the decree of the
Reveesed. Remanded.