Borst v. Nalle

• Decision Date: 19 April 1877
• Citation: Borst v. Nalle, 69 Va. 423 (1877)
• Court: Virginia Supreme Court
• Parties: BORST v. NALLE & als.

69 Va. 423

BORST v. NALLE & als.

Supreme Court of Appeals of Virginia.

April 19, 1877

Absent, Anderson, J.

I. The docketing of a judgment is an act to be done to preserve or prevent the loss of a civil right or remedy, within the meaning of the acts of March 4, 1862, acts of 1861-2, ch. 81 and of March 2, 1866, Code of 1873, ch. 146, § § 6 and 7, p 998-99. And therefore in computing the time within which a judgment is required by § 8, ch. 186, of the Code of 1860, to be docketed, in order to preserve the lien of such judgment against purchasers, the period between the 17th of April 1861 and the 2d of March 1866 is not to be computed as a part of such time.

II. An executor who conveys land with special warranty, who is not a party to the suit, and has no interest in the result of it or in the record as an instrument of evidence, is a competent witness to prove the facts in relation to his sale and conveyance of the land, in a contest between the creditor of his grantee and a purchaser from him.

III. T an executor, employs R, to sell a tract of land for him, and to facilitate it, T executes a deed to R, but does not deliver it. R makes a sale to B, and B pays the money to T, and then T delivers the deed to R, and at the same time R executes a deed to B. In a suit by a judgment creditor of R against B, to subject the land to pay his debt--HELD:

1. T is a competent witness to prove the fact that R sold as his agent, that the conveyance to him was that he might convey to B, and that B paid the purchase money to him.

2. By the conveyance to R there was an implied or resulting trust in favor of B, who had paid the purchase money; and this trust may be proved by parol evidence.

3. The trust having been fully executed by R conveying the land to B, before this litigation was commenced, it seems, that on that ground parol evidence is admissible to establish the trust.

4. R being dead, B is not a competent witness in his own behalf, as to the sale and conveyance of the property.

This was a suit in equity in the circuit court of Culpeper county, brought in August 1869, by Thomas B. Nalle, to subject certain lands to satisfy a judgment recovered by him against William B. Ross and James A. Beckham, in November 1860. One of the tracts of land had been conveyed by said Beckham to Franklin Stearns and John M. Botts in 1862, and another tract was conveyed by Ross to Peter B. Borst in March 1865. In November 1871 the court made a decree in the cause by which it was held that the land conveyed to Borst was primarily liable to the payment of the plaintiffs' debt; and a commissioner was directed to take certain accounts. From this decree Borst applied to this court for an appeal; which was allowed. The case is stated by Judge Burks, in his opinion.

Wm. Green, for the appellant.

Field & Gray and James W. Green, for the appellees.

OPINION

BURKS, J.

In November 1860, the appellee, Thomas B. Nalle, recovered a judgment in the county court of Culpeper against William B. Ross and James A. Beckham, his surety, and caused the same to be docketed in said county court on the 3rd day of November, 1865. At the date of the judgment, Beckham was seized of several tracts of land in the county of Culpeper, which he conveyed to John Minor Botts and Franklin Stearns by deed dated the 10th day of December, 1862, and admitted to record in the clerk's office of said county court on the 11th day of December, 1862.

Between the date of the judgment and the docketing thereof, John C. Thom and William A. Thom, as the executors of Lucy Lewis Taylor, by deed conveyed to the said William B. Ross, a tract of land in said county called " Berry Hill," which by the will of their testatrix they were empowered to sell; and Ross and wife thereupon conveyed the same to the appellant Peter B. Borst; both of which deeds were afterwards admitted to record in the county court aforesaid.

Nalle filed his original bill in the circuit court of Culpeper against Ross, Stearns, and the heirs of John Minor Botts (the latter being dead), to subject to the lien of his judgment the lands conveyed as aforesaid by Beckham to Botts and Stearns, alleging in the bill, among other things, that Ross was insolvent. Some of the heirs of Botts answered the bill; and denying that the judgment of the complainant constituted any lien on the lands purchased of Beckham, and averring that the " Berry Hill" estate conveyed by Ross to Borst, if there was any lien at all, was first liable to the satisfaction of the judgment, prayed that the complainant might be required to proceed against that estate, " as the lands of the principal debtor, and as the lands last aliened."

Thereupon, Nalle filed his amended and supplemental bill against the parties defendant to the original bill (except Ross who had died), and against the personal representative and heirs of Ross, the heirs of Beckham and against Borst, seeking to subject to the satisfaction of his judgment the " Berry Hill" tract of land owned by Borst, and charging that it was primarily liable for the payment of said judgment.

Borst answered the bill, denying that the judgment was any lien on the " Berry Hill" tract; first, because, as he averred, the judgment was not docketed within the time prescribed by law; and second, because, as he further averred, Ross was never so seized of said land as to make it subject to the lien of the judgment. As to this second ground of objection, he stated in substance, that the executors of Mrs. Taylor were empowered by the will of their testatrix to make sale of her real estate, of which " Berry Hill" was a part; that they employed the said William B. Ross as their agent to make sale of " Berry Hill" at a price of not less than $135,000 in Confederate currency; that Ross, as such agent, did make the sale to him (Borst); that he (Borst) paid the purchase money to one of the executors, and after the payment was completed, that a deed of conveyance of the land from the executors to Ross, which had been theretofore prepared, signed and acknowledged, was then delivered to Ross, and at the same time a deed of conveyance of the same land from Ross was delivered to him (Borst)--the delivery of the two deeds being contemporaneous acts--and both deeds were admitted to record at the same time; and that in the whole transaction, Ross asserted no claim to the land, acted merely as the agent of the executors, and never in fact at any time had any beneficial interest whatever in the land.

These statements of the answer were fully proved by the deposition of John C. Thom (one of the executors of Mrs. Taylor, and a grantor in the deed to Ross), and Borst gave his own deposition to the same effect. No other depositions were taken in the case. Exceptions were filed to the depositions on the ground of the alleged incompetency of the witnesses, and the illegality of parol evidence to establish the facts sought to be proved thereby.

At the hearing of the cause, the court sustained the exceptions taken to the incompetency of the witnesses, held the land of Borst to be primarily, and the land of Botts and Stearns to be secondarily liable to the lien of the complainant's judgment, and ordered an account to be taken of the fee simple and annual value of Borst's land and of the liens thereon, including the lien of the complainant's judgment. From this decree, an appeal was applied for by Borst, and allowed by one of the judges of this court.

It is objected, in the first place, by the appellant Borst, that even if Ross were the beneficial owner of the " Berry Hill" tract of land at the time he conveyed it to the appellant, still it was not bound by the judgment, because it was not docketed before the conveyance to him and within the time prescribed by law. The same objection is urged by the appellees owning the land purchased of Beckham.

This objection, we had supposed, was fully answered by the decision in Hill v. Rixey & als., 26 Gratt. 72, made by this court since an appeal was allowed in this case.

Notwithstanding that decision, however, learned counsel still insist, that the docketing of a judgment under § 8, ch. 186, Code of 1860, is not within the operation of the act passed March 14, 1862, entitled " an act to extend the time for the exercise of certain civil rights and remedies:" (acts of 1861-62, ch. 81, p. 99) or of the act with the like title passed March 2, 1866, (acts of 1865-66, p, 191, Code of 1873, ch. 146, §§ 6, 7, pp. 998-99): that the docketing of a judgment as required by the Code is not " an act to be done to preserve or prevent the loss of a civil right or remedy" within the meaning of those terms as employed in the aforesaid acts of 1862 and 1866; and therefore that Nalle, having failed to docket his judgment within the time prescribed by the statute, and conveyances having been made to the purchasers of the lands and admitted to record long before the docketing, the judgment constituted no lien on the lands conveyed.

Let us inquire for a moment into the origin, nature, and extent of the judgment lien. At common law, lands of the debtor could not be taken to satisfy his debts, except judgments due to the king, and judgments therefore did not operate as liens on land. But by the statute of Westm. 2, 13 Edw. 1, ch. 18, substantially adopted in this state, (1 R. Code, ch. 134, § 1, pp. 524, 525, 526, 527), a new execution was provided, the writ of elegit, by which a moiety of the lands of the debtor could be subjected to the satisfaction of the judgment.

The statute, however, did not in express terms give a lien on the land. It provided for the writ, and prescribed the form of it. By its terms, the officer was required to deliver to the creditor all the goods and chattels of the debtor,...