Blair v. Rorer's Adm'r

• Decision Date: 08 November 1923
• Parties: BLAIR . v. RORER'S ADM'R et al.
• Court: Virginia Supreme Court

116 S.E. 767

BLAIR .

v.RORER'S ADM'R et al.

Supreme Court of Appeals of Virginia.

Jan.18, 1923.

Rehearing Denied March 15, 1923.

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Error to Circuit Court, Montgomery County.

Suit by W. J. Blair, against Ferdinand Rorer's administrator and others. From decrees for defendants, plaintiff brings error. Reversed in part, and affirmed in part.

Aubrey E. Strode, of Lynchburg, and S. A. Anderson, of Richmond, for plaintiff in error.

Hall, Wingfield & Apperson, W. L. Welborn, A. L. Hughson, S. K. Funkhouser, Jackson & Henson, and Woods, Chitwood, Coxe & Rogers, all of Roanoke, for the defendants in error.

BURKS, J. [1] This is a lien creditors' suit to subject the lands of Ferdinand Rorer, usually designated in the record as F. Rorer, to the payment of the liens thereon. All of the judgments asserted in the cause are owned by the appellant, and are of long standing, having been rendered between the years 1884 and 18S6. The judgment debtor removed from Virginia to West Virginia in the year 18S6 and died in the latter state in 1906, hopelessly insolvent, and after having been declared a bankrupt. The property now sought to be subjected is for the most part, in the hands of alienees of Rorer, or those claiming under such alienees. Nearly all of it lies in the city of Roanoke and was purchased of Rorer at the time when Big Lick was a small village, or was emerging, or about to emerge, into the city of Roanoke, whose phenomenal growth in the decade from 1880 to 1890 is a matter of common knowledge, and is also manifested by the United States census for the years mentioned, of which this court will take judicial notice. That growth has since continued at a rapid rate, as will also further appear from subsequent official censuses. Property that was then purchased at fractions of an acre is now sold by the front foot, and improvements have been placed upon it suitable to its location in a city, and some of it occupied by public buildings and public streets. Not only are the judgments of the ancient date mentioned, but they are no longer owned by the persons who sustained the loss by reason of the insolvency of Rorer. and are now sought to be enforced against persons who have paid the purchase money, Improved the property, and who have rested secure in the enjoyment of the property, without a suggestion of a defect in their titles till the year 1920. The conveyances by Rorer were made before any of the judgments against Rorer were recovered—one of them in the year 1874, another in the year 1S76, and others in 1882. The basis of the appellant's claim to subject the property to his judgments is that, by reason of defective descriptions in the deeds from Rorer, or defective acknowledgments of deeds or for some other such reason, there has been no due recordation of the conveyances from him, and that the judgments have been kept alive by the nonresidence of Rorer for a number of years, and thereafter by the institution and pendency of this suit since May, 1906.

This 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 is thus stated in one of the opinions on the last-mentioned appeal at page 733 of 122 Va., at page 454 of 96 S. E.

"(1) An amendment of a lien creditors' bill, which sets out in detail other lands bound by the plaintiff's judgments and brings before the court all those who claim to be interested in those lands adversely to the lien creditors, is not a departure from the original bill, and does not make a new case, although it contains someaverments not contained in the original bill; and as to lien creditors who subsequently prove their debts in the case, the filing of the bill stops the running of the statute of limitations.

"(2) The removal of the judgment debtor from the state is of itself an obstruction to a suit-to enforce the judgment, and the statute of limitations does not run against the judgment while the debtor remains out of the state.

"(3) A judgment which is a lien on land in the hands of an alienee of a judgment debtor, and which is not barred as against the debtor because of his removal from the state, may be enforced against the lands in the hands of such alienee, although the latter has in no way obstructed the prosecution of the plaintiff's rights. Section 2933 of the Code does not apply to such case.

"(4) The doctrine of laches has no application to a suit to subject lands in the hands of the judgment debtor or his alienees to the lien of the judgment. The judgment is an express, absolute, statutory lien on the debtor's real estate, and the right to resort to a court of equity to enforce it is a legal right, without terms or conditions, and continues during the life of the judgment.

"The correctness of the above propositions, cannot now be called in question, even if we were disposed to do so, as they have become the law of the case. Steinman v. Clinchfield Coal Corporation, 121 Va. 611, 93 S. E. 684."

On the last appeal, the court settled the rights of the litigants as to the property then before court. There was then in controversy, amongst other things, the liability of one acre of ground claimed by the Norfolk & Western Railway Company, on which its office building was erected, to the judgments of the appellant, and this court held that the said railway coin pa uy had good title to said one acre against all the world, and that Borer was completely divested of all title thereto by the adverse possession of said railway company. That question is no longer open to debate in this cause.

When the case went back, the trial court proceeded to subject by sale all of the real estate mentioned in the pleadings which this court had held liable for the appellant's judgments, and by September, 1919, had exhausted all of the property liable to said judgments which had been brought to its attention. The decree of September 18, 1919, left nothing to be done in the cause, that could affect the rights of the complainant or any of the defendants then before the court respecting any property that had been brought to the attention of the court as liable to the lien of complainant's judgments. It is claimed by the appellant that Rorer had some sort of interest in the fee in the streets adjoining the office building lot of the Norfolk & Western Railway Company and in that lot itself, but the streets aforesaid were a part of said one acre, and the adverse possession of the streets, subject to the easement of the city for street purposes, was as fully established as of the lot itself, and the decision on the second appeal was that Rorer had been divested of every interest in the whole acre by the adverse possession aforesaid. The language of the majority opinion is that the adverse possession of the railway company "has not only extinguished the Rorer title but created and conferred on the defendant company a brand new and indefeasible one, which cannot be sold for Rorer's debts." We need not enter, therefore, upon any discussion of a right in Rorer which, If sold, might give the purchaser the right to bring an action of ejectment.

Afterwards, in January, 1920, the appellant filed an amended bill, by which he charged that there were other lands liable to his judgments, and designated seven different parcels and the names of the persons in possession, which he charged were so liable for reasons stated. After making these specific charges, he then makes the following omnibus charge:

"Tour orator avers and charges that there are other lands in the city and county of Roanoke liable to the lien of your orator's judgments, which he has not had at this time an opportunity to ascertain, which should be examined by a commissioner of this court, and the parties in possession be brought into this suit upon the notice of the commissioner taking the account, or by an amended bill, as in your Honor's judgment may be proper, the, object and scope of this bill being to subject to the lien of the judgments owned by your orator asserted in this suit all of the lands of F. Rorer bound therefor within the state of Virginia."

In August, 1920, the appellant filed an additional amended bill, for the purpose of correcting errors committed in the amended bill of January, 1920. This bill (of January, 1920) was dismissed on the merits as to the defendants therein, who are appellees here, by the decree of October 1, 1920, which is one of the decrees appealed from.

In December, 1920, the appellant filed another amended bill in which he states that he has ascertained what he did not know when he filed his last-amended bill, that there are other lands liable to his judgments, and proceeds to designate some six or eight different parcels of land and the names of the parties in possession, and his reason for charging that they are liable to his judgments. He prays that the persons designated be made defendants, and that the lands mentioned be subjected to the payment of his judgments. In February, 1921, he filed in court another amended bill which is substantially the same as the bill of December,

1920. There was no appearance by the defendants to any of these bills, but in April,

1921, the defendants gave notice to the appellant that they would, on May 3, 1921, move the court, for reasons stated in writing and filed with the notice, to set aside its decree entered at February term, 1921, allowinghim to file an amended bill, and to enter a decree refusing to allow such amendment. The motion was in writing and stated numerous grounds on which the amendment should be refused.

Among the grounds so stated were that the case was an ended cause and the bill was not subject to amendment, and, even If it were not ended, the subject of amendment was within the...