Barksdale v. Fitzgerald

• Decision Date: 15 December 1881
• Citation: 76 Va. 892
• Parties: BARKSDALE AND TERRY v. FITZGERALD.
• Court: Virginia Supreme Court

76 Va. 892

BARKSDALE AND TERRY v. FITZGERALD.

Supreme Court of Appeals of Virginia.

December 15, 1881

Appeal of Elisha Barksdale, Jr., and William C. Terry from a decree of the circuit court of Pittsylvania county, pronounced 27th April, 1881, in a suit therein pending in which William C Terry is plaintiff and William R. Fitzgerald is defendant. The facts and proceedings are fully stated in the opinion of the court.

J Alfred Jones and E. Bouldin, Jr., for the appellants.

Ould & Carrington, for the appellee.

OPINION

BURKS J.

This is the fourth appeal in this cause. On the first, Terry being sole appellant, the decree below was reversed, and the cause remanded for further proceedings. 32 Gratt. 843. After the case got back into the circuit court, Elisha Barksdale, Jr., was, on his petition, admitted a party, and in the further proceedings several decrees were pronounced, from three of which successive appeals were allowed, the first to Terry alone, the second to Barksdale, and the third to Terry and Barksdale jointly, all pending here at the same time. The first two were dismissed during the last term here of this court on the motion of the appellee, one of them because of the failure of the appellant to give the required bond, and the other for failure to have the record printed. The one last allowed, which seems to relate alone to the decree last entered, remains to be disposed of. The statute provides that after the dismission of an appeal, writ of error, or supersedeas, no other appeal, writ of error or supersedeas shall be allowed to or from the same judgment, decree, or order. Code of 1873, ch. 178, § 18. This act, in its spirit, if not in the letter, would seem to preclude inquiry into the matters involved in the former appeals. See Campbell v. Campbell, 22 Gratt. 649, and cases there cited.

But the conclusions we have reached will not be affected bye waiving the bar of the statute in the present case.

1. As to the appellant Barksdale.

It appears that the firm of Wise Bros., on the 15th day of January, 1872, recovered against Terry and W. P. Barksdale a judgment which was docketed on the 26th of April, 1872. Execution was sued out, which was levied and a forthcoming bond taken; in which Terry, W. P. Barksdale, Elisha Barksdale, Jr. (the appellant), and William J. Banks were the obligors, the last two as sureties presumptively, though there is no direct proof of this. The bond being forfeited, it was returned May 20, 1873, to the clerk's office from which the execution issued, and a judgment was rendered upon it against all the obligors January 19, 1874; and this latter judgment was also docketed, the forfeited forthcoming bond returned, having under the statute the force and effect of a judgment, never having been docketed. The claim of the appellant Barksdale is that he paid the judgment on the forthcoming bond as surety, and he asks to be substituted to the lien of Wise Bros., on the land of Terry conveyed to secure the appellee Fitzgerald. The deed of trust securing Fitzgerald was admitted to record a few days before the recovery of the judgment on the forthcoming bond--to-wit, January 3, 1874. An execution was sued out on this judgment and levied on the personal property of Terry, the principal obligor or one of the principal obligors.

For some reason unexplained, the property was not sold under the levy and a venditioni exponas was awarded, and there was no sale under that, but, with the consent and approval of the sureties, it was held up by order of the plaintiff's attorneys, and the debt was paid by some one without sale.

If paid by the appellant Barksdale, as surety on the forthcoming bond, several questions might arise. First, whether his right of subrogation should be confined to the judgment on the forthcoming bond, which remains in force, and is subsequent and therefore subordinate to the deed of trust, or be extended to the lien of the original judgment, recovered aud docketed in 1872; in other words, whether the original judgment was not satisfied or merged in the forfeited forthcoming bond or in the subsequent judgment on the bond the latter never having been quashed, nor being liable to be quashed, so far as appears. See Withers v. Carter, 4 Gratt. 420; Jones, & c. v. Myrick's Ex'ors, 8 Gratt. 179, 211, 212; Rhea and others v. Preston, 75 Va. (1 Matthews), 757, 774; Bank of the Old Dominion v. Allen and others, supra, 200; Freeman on Judgments (3d ed.), § 216 and cases cited in notes. Second, whether the payment (if made) by the surety and the release thereby effected of the principal's property levied on, do not, to the extent at least of the value of that property, render the surety's right of substitution (if it exists) to the lien of the first judgment, subordinate...