52 W. Va. 517 | W. Va. | 1903
On the 22d day of June, 1850, Samuel O’Neal and wife conveyed to Samuel George a tract of twenty-four and one-half acres of land in Barbour County. The vendee, Samuel George, died leaving surviving him his wife, Eveline, his sole heir. On the 21st day of November, 1883, Eveline having intermarried with John S. Cooper, together with her husband, in consideration of forty-five dollars, conveyed said twenty-four and one-half acres of land with general warranty to S. C. Douglass. On the first day of February, 1893, S. C. Douglass and wife conveyed to Alston G. Dayton, trustee, the said tract of land together with several other tracts to secure to H. F. Brohard the payment of a note, for three thousand dollars, with interest, payable in five years. At the November term, 1859, of the county court of Barbour County, Brady and Swindler, for the use of Benjamin McCoy obtained judgment against Samuel George and E. J. O’Brien and Daniel O’Brien, his securities in a forthcoming bond for the penalty of the bond to be discharged by the payment of fifty-two dollars and fifty cents, with interest from August 20, 1859, and costs. At the April rules, 1894, Samuel V. Woods, special commissioner, filed his bill in equity in the clerk’s office of the circuit court of Barbour County against S. C. Douglass, J. N. B. Crim, S. J. Heatherly, J. E. Ilcatherly, II. F. Brohard, A. G. Dayton, trustee, Case Manufacturing Co., Samuel Woods, and Columbus Kelly, for the purpose of enforcing his vendor’s lien and his judgment liens against the land of said Douglass; in which suit plaintiff obtained a decree for the sale of said land under which decree sale was made of the Douglass lands, including the twenty-four and one-half acres. On the third day of March, 1898, Daniel O’Brien tendered his petition in said cause and asked leave to file the same, to the filing of which defendant H. F. Brohard, and J. N. B. Crim by counsel ob-
From the allegations of the petition it appears that the suit of McClaskey and Crim v. O’Brien et al. was only for the purpose of enforcing the liens against the real estate of O’Brien and in no way affected.the twenty-four and one-half acres of land or other realty of George, who was evidently made a party defendant to the suit simply because he was a co-judgment debtor with O’Brien, the said twenty-four and one-half acres of land being in no way involved in said suit. Douglass could not be a pendente lite purchaser thereof, said tract of land not being proceeded against for the enforcement of the lien against it; the judgments affecting it would be subject to the statute of limitations. It does not appear from the allegations of the petition or otherwise that the judgment was kept alive as provided by statute by the suing out of execution thereon; nor does it appear that execution had ever issued on said judgment of Bradley and Swindler v. Samuel George. In Werdenbaugh v. Reid, 20 W. Va. 588, it is held: “The lien of judgment upon which no exccuton was ever issued will not be enforced in a court of equit}r in a suit brought after the lapse of ten years from the date of the judgment.” “The defenses of the statute of limitations and laches and stale demands may be made by demurrer.” Thompson v. Whittaker Iron Co., 41 W. Va. 574. Appellant Brohard as cestui que trust had the right to make the defense. “The plea of the statute of limitations is generally personal to the party and not available to strangers; but privies in estate, as heirs, devisees, vendors or mortgagees of the property may use it to defend their property.” McClaugherty v. Croft, 43 W. Va. 270, (Syl. pt. 5). Section 5, chapter 86, Code, provides : “Any heir or devisee who shall sell and convey any real estate which by this chapter is made assets, shall be liable to those entitled to be paid out of the said assets for the value thereof with interest; in such cases the estate conveyed shall not be liable, if at the time of the conveyance the purchaser shall have no notice of'the fraudulent intent on the part of the grantor, and no suit shall have been commenced for the administration of the said assets, nor any report have been filed, as aforesaid, of the debts and demands of those entitled.” ■ It does
It does not appear that the judgment was docketed in pursuance of the statute, which provides, among other things, that the record shall show the date of docketing said judgment. There was simply an abstract of such judgment from the record, but nothing to show that it was ever docketed in the judgment lien docket; and if it was actually entered in the judgment lien docket, of which there is no ovide'nee, the date of docketing does not appear, which is one of the essentials to the docketing; however, as the judgment was permitted to die for want of issuing execution thereon the docketing the same was immaterial as that could have nothing to do with keeping it alive.
The exception to the commissioner’s report taken by Daniel ■ O’Brien because the commissioner failed to report said judgment in his favor should have been overruled by the court; the final judgment of the court, while it does not mention the exception taken by O’Brien, in effect sustains the exception. It appears from the showing made by O’Brien that he is not entitled to any relief to the prejudice of other parties and the petition, though so defective, can be made the subject of decree against him, disallowing his judgment and dismission of the petition, because of such defect, would not prejudice him
For the reasons here given the decree of the circuit court must be reversed, only in so far as it requires Brohard to pay said sum to O’Brien, and the petition is dismissed.
Reversed.