| W. Va. | Dec 10, 1898
Lead Opinion
At the May rules, 1894, for the circut court of Pendle-ton County, S. A. Welton filed a bill ag-ainst E. W. Boggs W. S. Boggs, trustee, I. P. Bogg-s, (since deceased), Solomon Cunningham, M. Manzy, and J. W. Warner, in which she alleged that on the 16th day of April, 1886, she obtained a judgment against defendant E. W. Bogg-s in said court for the sum of five hundred and twenty-two dollars and thirty-three cents, with interest thereon from that date, and costs; that on the 25th day of May, 1886, said judgment was duly docketed in the judgment lien docket of said county; that execution was issued on said judg-ment on April 23, 1886, and placed in the proper officer’s hands returnable to July rules, 1886, which execution was duly returned ; “No property found to levy on to satisfy this execution, or any part thereof. June 29th, 1886,” that no part thereof hau been paid; and that said judgment constituted the first lien on the real estate of said E. W. Boggs,which is described in the bill. It is also alleged in plaintiff’s bill that from the records of said county it appears that on the 15th of May, 1879, judgment was rendered against said E. W. Boggs and Solomon Cunningham in favor of David Goff, commissioner, use of William Adam-son, for the sum of five hundred and forty-nine dollars and thirty-seven cents; that execution was issued on said judgment on June 17, 1879, returnable to the 1st day of August, 1879; that the records do not show any return of said exe
On the 15th of June, 1894, the bill was taken for confessed as to the other defendants, except B. W. Boggs, who appeared and demurred to said bill. Demurrer was overruled, and cause referred to a commissioner to ascertain the real estate owned by the defendant Bogg's, its character and location, its value, annual and absolute, and the liens binding the same, whether by judgment or otherwise, and their priorities. Said commissioner returned his report, giving the real estate owned by Boggs, and ascertaining that the plaintiff’s judgment described in her bill was entitled to' the first place in point of priority of lien against said real estate, and the deed of trust executed by Boggs and wife to W. H. Boggs, trustee, to secure to William Adamson said judgment for five hundred and forty-nine dollars and thirty-seven cents, costs, and interest, subject to a credit of three hundred dollars paid February 27,1894, was entitled to the second lien on said land. This report was excepted to by J. P. Boggs, executor of the will of William Adamson, deceased, for the reason that it gave priority to the lien of S. A. Welton over the lien of William Adamson; the deed of trust lien having been taken to secure the payment of a judgment obtained long prior to the judgment of S. A. Welton, and said judgment of Adamson
The appellant made four assignments of error, all of which apply to the action of the court in sustaining said exception to the commissioner’s report, which may be considered tog-ether.
Did the circuit court err in holding that the deed of trust, or the judgment it was executed to secure, was entitled to priority over the plaintiff’s judgment? Now, while it is true that the plaintiff in her bill claims that she kept her judgment alive in the manner prescribed by the statute, and that the defendant Adamson allowed his judgment to expire, by neglecting to comply with the statutory requirements, yet the first question we encounter in considering this case upon the questions raised by the excepción to said commissioner’s report is whether the plea of the statute of limitations has been interposed in this case by any person entitled to the benefit of said plea. Can this plea be successfully relied upon by a co-creditor in a suit pending against a live debtor? Or is it a personal plea, which the judgment debtor alone could make available? Wood, in his valuable work on the Statute of Limitations (volume 1, p. 96), under the head of “Personal Privilege,” thus states the law: “The plea of the statute of limitations is generally a personal privilege, and may be waived by a defendant, or asserted, at his election. * * * A cestui que trust may set up the stacute whenever his trustee might do so, * * * and generally any person in privity with the claim sought to be enforced may set up the statute in bar thereto, as an executor, administrator, assignee, trustee, or any person who can be said to stand in the place and stead of the person for whose benefit the statute inures;
Rehearing
ON REHEARING.
After a careful consideration of the briefs of counsel for the appellant, and the examination of the authorities cited, I find no cause to change the opinion above quoted; and the same is hereby adopted, and the decree complained of is affirmed.
Note by
In McClaugherty v. Croft, 43 W. Va. 270 (27 S. E. 246), we held that parties privy in estate with the debtor, as heirs, alienees, or mortgagees, owning or entitled to charge the very land, might plead the statute of limitations against other creditors.'to defend their estates. I refer to former cases, leaving open the question involved in this case, whether one having a mere general lien, not being a specific lien on the land, could üo so. And I put it as a quaere in the Croft Case. Our cases settle that creditors of a dead man, or of an insolvent partnership, may plead against other creditors the statute, there being a fund belonging to all. But unless we are ready to abolish the old rule, that limitation is a plea made only for the debtor, which he may waive, I do not see how we can hold otherwise than as J udgjc English holds in this case. The statute pleads the bar in favor of a dead man’s estate, and therefore creditors may do so, but no statute compels a living debtor to plead it. I make this note to call attention to the Croft Case and Conrad v. Buck, 21 W. Va 396, in addition to Lee v. Feemster, cited by Judge English.
A firmed.