86 Va. 543 | Va. | 1889
delivered the opinion of the court.
The above-mentioned judgment creditors of Hoppe, being non-residents of this state, were proceeded against by order of publication. In June, 1880, the circuit court decreed that the judgments above mentioned were not, and never had been, liens upon the lot of land in question, nor any part thereof, it being plain, from the proofs in the cause, that the said Hoppe never really had any such interest in the said lot as could be the subject of anj lien paramount to that of R. F. Omohundro, which was paid off by Bodeker, who thereby stood in the shoes of said Omohundro, and specific performance was decreed as prayed for against Harman, and a deed ordered to be made by Bodeker in accordance with the said agreement. A sale was subsequently made by Bodeker and Harman to one Barksdale, trustee for, etc., who never paid the purchase money, which was in turn secured by trust deed to Wood, trustee; and so, in 1887, by order of the appellee, Wood, trustee, advertised the lot of land for sale under this deed, whereupon Barksdale, trustee for, etc., procured an injunction upon a bill filed for the purpose, upon a ground of defense based upon these same judgments; whereupon, in December, 1887, Peake, surviving partner, filed his petition in that cause, seeking to set up his judgment, now thirty years and more old; claiming that his judgment was not barred by the statute, because of the institution and pendency of the suit of Bodeker v. Harman, which had stopped the running of the statute; and in February, 1888, a decree was rendered dissolving the injunction and dismissing Peake’s petition. On May 16, 1888, the appellant, Straus, as surviving partner, filed his petition for rehearing, etc., aqd seeking to set up his judgment, asking -to have the decrees of June, 1880, and of February, 1888, set aside and declared null and void, etc. On the 19th of May, 1888, a decree
There are many assignments of errors which it will not be necessary to notice in the view we take of this case, which turns, we think, upon plain and well-settled principles. We will remark, first, that the judgments are admitted to be, and if not so admitted to be, are clearly barred by the statute of limitations (sec. 12, ch. 182, Code Va. 1873), unless they are saved by sec. 13 of same chapter of the Code, which is as follows: “Ho 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, [sec. 12, ch. 182, Code 1873,] except that, in computing the time, any time during which the right to sue out execution on the judgment is suspended by the terms thereof, or by legal process, shall he omitted.” It is contended by the appellant that the institution of the Bodeker suit against Harman to enforce his contract of sale of the lot in question was such “legalprocess” as suspended the right to sue out execution on the said judgment.
We do not think that this suit in any way suspended the right to sue out execution on the judgment. Its object was to enforce a contract for the sale of the land in question, and to settle between the vendor and vendee the direction in which the purchase money should properly go; and, while every effort was made by substituted process to give notice to the non-resident owners of the judgment, whose whereabouts had become unknown during the pendency of the late war, there was no order actually made to suspend the right to sue out execution on the judgment, and such was not the object of the said suit, and its pendency did in no way whatever suspend the right of the judgment creditor to sue out execution on the said judgment. In this case all the proceedings operated rather as an invitation to this lagging creditor to come forward
The 6th see. of ch. 182 provides a lien for the judgment creditors “ on all the real estate of or to which such person [the judgment debtor] shall be possessed or entitled at or after the date of such judgment.” In this case Hoppe, the judgment debtor, was not the owner of the real estate in question at the date of the judgment, hut subsequently it was purchased by him, under a contract as to which he defaulted, and he was wholly unable to pay for the said land. It was, however, conveyed to him by deed, and eo instanti reconveyed by him to a trustee to secure the purchase money therefor; and the seisin of Hoppe was transitory only, and not such an interest in the land as-became subject to the lien of the judgment against him in preference to the trust deed to the trustee Carr. It was said by Lewis, P., in Cowardin v. Anderson, 78 Va., 90, citing Chancellor Kent, in his Commentaries, (vol. 4, pp. 173, 174,) and Staples, J., in Summers v. Darne, 31 Gratt., 791: “In one instance a mortgage will have a preference over a prior docketed judgment, and that is the case of a sale and conveyance of land, and a mortgage taken at the same time in return to secure the payment of the purchase money. The deed and the mortgage are considered as parts of the same contract, and constituting one act; and justice and policy equally require that no prior judgment against the mortgagor should intervene and attach upon the land during the transitory seisin, to the prejudice of the mortgagee.” An again, in the same ca§e, it is said: “And it applies equally in favor .of a third person, who advances the purchase money, and, at th¿ time of the conveyance, takes a mortgage on the land for his indemnity;” citing, also 4 Kent, Comm. 30; Curtis v. Root, 20 Ill., 53 ;
There was no ground upon which the decree of June, 1880, should have heen reheard, and the circuit court of Albemarle did not err in refusing to do so, and in dismissing the two petitions of Straus and of Peake respectively. They had no interest in the lot of land, if these petitions had been filed in time—which they were not. The many errors assigned, and ably and ingeniously argued by counsel, as.to the formality of the proceedings against the non-resident judgment lienors, are immaterial, as well as the question whether the said rehearings were asked by the non-resident petitioners within the prescribed period. Upon the whole case the decrees complained of and appealed from are all plainly right, and they are affirmed.
Decrees aeeirmed.