Mcclanahan's Adm'r v. Norfolk & W. Ry. Co

Citation87 S.E. 731,118 Va. 388
CourtSupreme Court of Virginia
Decision Date13 January 1916
PartiesMcCLANAHAN'S ADM'R et al. v. NORFOLK & W. RY. CO. et al.

Rehearing Denied Feb. 2, 1916.

Appeal from Circuit Court, Montgomery County.

Bill by W. H. Pierce and others against W. D. Martin, as administrator, in which McClanahairs administrator filled a petition and W. J. Blair tiled an amended petition making the Norfolk & Western Railway Company and others defendants. The demurrer of these defendants being sustained, complainants appeal. Reversed.

H. T. Hall, of Roanoke, R. E. Scott, of Richmond, and Randolph Harrison, of Lynchburg, for appellants.

L. H. Cocke, Coxe & Cocke, Roy B. Smith, Everett Perkins, S. H. Graves, M. M. Caldwell, C. S. McNulty, T. W. Miller, and McCormick & Smith, all of Roanoke, and Roop & Phlegar, of Christianburg, for appellees.

KEITH, P. Ferdinand Rorer, formerly a citizen of Virginia, residing at the city of Roanoke, was a large landowner in Montgomery and Botetourt counties and the city of Roanoke. 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, Rorer 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, then sheriff of Montgomery county, was duly appointed administrator of Rorer on the 8th of May, 1906. Shortly thereafter W. H. Pierce, M. H. Tompkins, and Lewis and Ferdinand Harvey, judgment creditors of Rorer, suing, as the bill stated, "for themselves and all other lien creditors of Ferdinand Rorer, deceased, who will contribute to the expenses of this suit, " filed their bill in chancery in the circuit court of Montgomery county againt W. D. Martin, administrator of F. Rorer, deceased, Eulalie Powell, P. H. Rorer, and others, heirs at law of Rorer; L. H. Cocke and others, trustees under a deed of trust dated November 28, 1884, executed by Rorer for the benefit of his creditors; the Consolidated Mining Company and the Virginia Iron, Coal & Coke Company, claimants of certain portions of the lands in Montgomery county formerly belonging to Rorer and upon which the judgments against him were liens. The bill sets out numerous judgments obtained against Rorer, describes certain real estate owned by him in the county of Montgomery, stating specifically his interest therein, and averring that the deed to Cocke had been recorded in Roanoke city but not in the county of Montgomery. The bill contains many specific charges which we do not deem it necessary to detail. The prayer of the bill, after making Rorer's administrator, his heirs, and the other parties above named defendants, was that the lien of the said judgments may be enforced, and that all other, further, and general relief may be granted as the nature of the case requires.

This cause was duly matured, and the bill taken for confessed as to all of the defendants except the Virginia Iron, Coal & Coke Company, which appeared at the October term, 1900, and filed its demurrer and answer to the bill. In this demurrer the complainants joined, and by a decree subsequently entered it was adjudged that the demurrer be overruled.

At the February term, 1907, Zirkle, the administrator of McClanahan, who held judgments against Ferdinand Rorer, deceased, filed his petition in the cause, in which he stated, among other things, that he had been informed that this suit "was brought for the purpose of subjecting the real estate of F. Rorer, deceased, to the payment of judgments which constituted liens on said real estate, " and the prayer of the petition was:

"That he may be allowed to file this, his petition in the above-mentioned cause, which he understands is a creditors' suit; that all necessary accounts may be taken; that the priority of the liens against the estate of F. Rorer, deceased, may be' fixed; and that your petitioner may be granted such other, further, and general relief in the premises as the nature of the case may require and to equity may seem meet."

At the same term a decree was entered referring the cause to one of the commissioners of the court, who was directed to take an account of the real estate owned by Rorer at any time after the rendition of the judgments' mentioned in the bill, the liens thereon, the conveyances and transfers thereof, and any other matter deemed pertinent or required to be stated.

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 lien 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. C. Vest, 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 a number of lots of land theretofore owned by Rorer which he had sold to other parties, the deeds to which had not been recorded, and that the lands were liable to the lien of his judgments. Then follows a particular description of the several lots which the petitioner sought to subject to the lien of his judgments. The prayer of the amended petition was that:

"An account of all the property owned by the said F. Rorer which is liable to the lien of said judgments be directed and taken: and may the real estate in Roanoke city herein described be decreed to be subject to the liens of the judgments set out in said original petition; and may the same and all other property of the said F. Rorer ascertained to be liable for the judgments against him be sold and the proceeds applied to the satisfaction of said judgments; * * * may all such other, further, and general relief be granted your petitioner as the nature of his case requires and to equity may seem meet."

W. J. Blair and P. H. Rorer 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 petition filed by McClanahan's administrator.

At the October term, 1911, the Roanoke city school board and F. Fallon appeared and by leave of the court filed pleas of the statute of limitations to the amended petition of McClanahan's administrator and to the petitions of Blair and P. H. Rorer. 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 about 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."

Burke and wife also appeared and filed their answer, and by an order entered on October 2, 1911, leave was given McClanahan's administrator, P. H. Rorer, and W. J. Blair to file their amended petitions to meet the pleas of the statute of limitations, and upon these petitions process was directed to be issued against the defendants named therein. This amended petition of Zirkle. administrator as aforesaid, states, among other things, that at the time of the recovery of the several judgments against Rorer he was a resident of the city of Roanoke, and shortly thereafter, in 1886, departed without the state of Virginia, and continued to reside in the state of West Virginia, with no place of abode in the state of Virginia and thereafter continuously obstructed the holders of the judgments in the prosecution of their remedies against him until his death and the qualification of his personal representative in 1906; so that, excluding the time between his departure from the state and the qualification of his personal representative, the time which elapsed from the recovery of the judgments to the institution of this suit, the entry of the order of reference herein, and the filing of the original and amended petitions, there was less than ten years, the period set up in the pleas aforesaid. The petition, by way of further amendment, alleges that at the time of the recovery of the judgments held by the petitioner Ferdinand Rorer was the ownerof other lands than those hereinbefore referred to, and then proceeds to describe the lands and the parties who were in the possession of them, and he then prays that the prayers of original and the first amended petition be granted, that the judgments be decreed to be liens upon...

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14 cases
  • Mcclanahan's Adm'r v. Norfolk & W. Ry. Co
    • United States
    • Supreme Court of Virginia
    • January 24, 1918
    ...of questions as to procedure were raised, all of which were disposed of on the former hearing of this case. McClanahan's Adm'r v. Norfolk & Western Ry. Co., 118 Va. 388, 87 S. E. 731. On that hearing this court, among other things, decided the following points: (1) An amendment of a lien cr......
  • McClanahan`s Adm`r v. Norfolk & W. R. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 24, 1918
  • Blair v. Rorer's Adm'r
    • United States
    • Supreme Court of Virginia
    • November 8, 1923
    ...is the third time this case has been before this court. The two former appeals are reported under the style of McClanahan's Adm'r v. Norfolk & W. R. Co., 118 Va. 388, 87 S. E. 731, and McClanahan's Adm'r v. Norfolk & W. R. Co., 122 Va. 705, 96 S. E. 453. What was decided on the first appeal......
  • Commonwealth v. Dodson, Record No. 2310.
    • United States
    • Supreme Court of Virginia
    • October 14, 1940
    ...us in terms what was before it. Of this, it was the best judge. These authorities answer this contention: In McClanahan's Adm'r Norfolk & W.R. Co., 118 Va. 388, 87 S.E. 731, Keith, P., "It is claimed that this statement in the opinion is a mere obiter dictum, unnecessary to the decision. We......
  • Request a trial to view additional results

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