Callaway's Adm'r v. Saunders

• Decision Date: 21 March 1901
• Court: Virginia Supreme Court
• Parties: CALLAWAY'S ADM'R . v. SAUNDERS et al.

38 S.E. 182

99 Va. 350

CALLAWAY'S ADM'R .

v.SAUNDERS et al.

Supreme Court of Appeals of Virginia.

March 21, 1901.

LIMITATIONS OP ACTIONS—CREDITORS' SUITS —PARTIES—DECREE—SUSPENSION OP STATUTE.

1. A creditor may set up the statute of limitations against another creditor of the debtor's estate, though the debtor himself has not relied on such defense.

2. The rule that the limitations are suspended when a decree for an account of outstanding indebtedness is entered in a creditors' suit, has no application to a creditor who was not a party to the suit and did not come in under the decree.

Appeal from circuit court. Franklin county.

Action by the administrator of W. C. Callaway against C. I. Saunders and others. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

E. W. Saunders, S. A. Anderson, and L. W. Anderson, for appellant.

Dillard & Lee, for appellee.

BUCHANAN, J. This Is a creditors' suit to subject the lands of a living debtor to the payment of the liens thereon. The statute of limitations was one of the defenses relied on to defeat the appellant's demand. If the claim was barred by the statute, it will be unnecessary to consider the other defenses. That question win, therefore, be first considered.

That one creditor may set up the statute of limitations against the demand of another, as was done in this case, although the statute was not relied on by the debtor himself, seems now to be settled in this state. McCartney v. Tyrer, 94 Va. 198, 36 S. E. 419.

A judgment was rendered September 3, 1866, upon a negotiable note in which C I. Saunders, the debtor in this suit, was the second, and appellant's decedent, W. C. Callaway, was the third, indorser. No execution appears to have issued on the judgment. On or before September 23, 1881, there seems to have been paid out of the estate of Callaway, who had gone into bankruptcy, the sum of $1,350.06. The appellant claims that Saunders, as between himself and Callaway, was primarily liable for the debt, and that the estate of the latter is entitled to be subrogated to the rights of the judgment creditor against the lands of Saunders. This suit was instituted about the year 1888. The precise date does not appear. A decree for an account was rendered on or before May 15, 1889, and the appellant filed his petition In the case asserting his demand in the year 1S98. No execution having been issued on the judgment, it was clearly barred, as the statute of limitations had been running more than ten years before the institution of this suit, after deducting the period during which the statute was suspended, as provided by law (Code, §§ 3573, 3577), and more than five years after the right of subrogation accrued (Code, § 3574), unless, as is contended by appellant, the running of the statute was stopped of a creditors' suit...