Calwell's Ex'r v. Prindle's Adm'r Lilly's Adm'r
| Decision Date | 06 May 1882 |
| Citation | 19 W.Va. 604 |
| Parties | Calwell's Ex'r v. Prindle's Adm'r et alLilly's Adm'r v. Calwell's Ex'r et al. |
| Court | West Virginia Supreme Court |
1. The declarations to a third person, of a trustee in a deed of trust upon land made to secure the payment of money due from the deed of trust debtor to his creditor, that the debt so secured has been paid, cannot be received as evidence against f he cestui que trust as tending to prove the payment or non-existence of the trust-debt or for the purpose of estopping the cestui que trust from asserting his debt against the property covered by said deed of trust, where the trustee has not executed said deed of trust by sale thereunder. The power of the trustee over the legal estate vested in him exists only for the benefit of the cestui que trust Generally in a court of equity no act or negligence of the former can prejudice the latter. (page 639.)
2.A legal presumption of payment of a bond or covenant given for the payment of money does not arise from mere lapse of time, where the bond or covenant has not been due for twenty years before commencement of suit or proceedings for the recovery of the amount thereby due and payable. If a shorter period even a single day less than twenty years, has elapsed, the presumption of satisfaction from mere lapse of time does not arise, (p. 630.)
3. "While the mere lapse of twenty years without explanatory circumstances affords a presumption of law, that the debt is paid, even though it bo due by specialty, still the payment may be inferred by the court or jury from circumstances with the lapse of a shorter period of time than twenty years. (p. 640.)
4.When an action or proceeding is based upon a bond or covenant for the payment of money, if twenty years elapse between the time: of its becoming due and the commencement of the action'or proceeding, the defendant may without pleading the statute of limitations rely upon the presumption of payment; and upon issue joined on plea of payment payment may be inferred by the court or jury from circumstancps coupled with a lapse of a shorter period than twenty years, (p. 640.)
5.On the 3d day of February, 1863, near nine months after the Legislature of the reorganized government of Virginia had given the consent of Virginia to the formation of the new State of West Virginia, and some time after Congress had passed an act giving its consent to the formation of the new State of West Virginia, and providing for its admission into the Union as one of the United States, upon conditions precedent expressed, the General Assembly of Virginia passed an act entitled "An act transferring to the proposed State of West Virginia, when the same shall become one of the United States, all this State's interest in property, unpaid and uncollected taxes, fines, forfeitures, penalties and judgments, in counties embraced within the boundaries of the proposed State aforesaid." This act contains seven sections, and the seventh and last section thereof provides, that "This act shall take effect, when the proposed State of West Virginia shall become one of the United States." The said proposed State became one of the States of the United States on the 20th day of June, 1863. Held:
I.That the said act of the General Assembly of the reorganized government of Virginia was not void, because the State of West Virginia was not in existence as one of the United States at the time of its passage. (p. 648.)
II.That said act did take effect and become operative for the purposes of its enactment on the said 20th day of June, 1863. And although the Legislature of the State of West Virginia did not by an act in express terms "accept the said Virginia act," yet the Legislature did by clear implication derived by acts touching the subjects of said Virginia act accept the said Virginia act (if any acceptance were necessary to make the said a, ct effective for its purposes). (p. 648.)
III. Under the circumstances, under which said Virginia act was passed, considering its purposes and character, it should be considered, that it became operative and effective for its purposes and objects on the 20th day of June, 1863, unless it appears, that the State of West Virginia on that day or afterwards dissented from or refused to accept the provisions of said Virginia act expressly or by implication. (p. 649.)
6. The State of Virginia upon notices and motions by the name of "The Com monwealth" instituted and prosecuted by the auditor of public accounts on the 6th day of March, 1860, recovered two several judgments against Edmund S. Calwell "in the circuit court of Richmond'' as one of the securities of John e. Lewis, late sheriff of Greenbrier county, the one being for $4,893.92, the balance of the land property, and capitation and September license taxes of 1854 due from said John e. Lewis, late sheriff of Greenbrier county, with interest thereon to be computed at the rate of six per centum per annum from the 17th day of January, 1855, until paid, and the costs of the motion, $13.44, and the other being for $1,073.86, the balance of June, 1855, license taxes, due from said John e. Lewis, iate sheriff of Greenbrier county, with interest thereon to be computed at the rate of six per centum per annum from the 20th day of June, 1855, until paid, and $161.07 for damages thereon according to law, also the cost of the motion, $11.94. The law in force at the time said notices were given and motions made and judgments were rendered provided, that "the auditor of public accounts shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth that the proceeding may be in the circuit court of the city of Richmond that when it is at law, it may be by action or motion that " every judgment on any such motion shall be in the name of the Commonwealth." And the city of Richmond being the capital of the State of Virginia, as judicially known to the court, Held:
I.That each of said judgments is a valid judgment of the State of Virginia against said Edmund S. Calwell rendered in and by the circuit court of the city of Richmond, Virginia, though in the name of the Commonwealth," Commonwealth" under and by virtue of the law standing for and representing the State of Virginia for all purposes, of which all persons were bound to take notice. And the " circuit court of the city of Richmond" standing for and meaning the circuit court of the city of Richmond under and by virtue of the law, of which all persons were also bound to take notice. Chapter 42, Code of Virginia, 1860, sections 1, 2 and 4 (p. 651.)
II.That each of said judgments with their liens passed to and became vested in the State of West Virginia under and by virtue of the said act of the General Assembly of Virginia, passed February the 3d, 1863, on the 20th day of June, 1863. (p. 651.)
III.That each of said judgments belonged to the State of Virginia with their liens until the said 20th day of June, 1863. (p. 651).
IV.The said judgments and each of them were and continued to be positive liens in favor of the State of Virginia upon all the lands of the said Edmund S. Calwell in the State of Virginia, including those in the county of Greenbrier, now of the State of West Virginia, from the time of their rendition until the said 20th day of June, 1863. (p. 651).
V. That by virtue of the said Virginia act of February the 3d, 1863, the said judgments with their said liens upon the said lands of said Edmund S. Calwell on the said 20th day of June, 1863, passed to and belonged to the State of West Virginia, and said judgments on the date last aforesaid became and from thence continued to be positive liens in favor of the State of West Virginia upon the lands of said Edmund S. Calwell within the limits of the State of West Virginia, including his lands in the said county of Greenbrier. (p. 652).
VI.That said judgments did not cease to be liens upon the lands of said Calwell within the State of West Virginia, upon the last named State becoming one of the States of the Union, to-wit, on the 20th day of June, 1863, nor did the liens of said judgment upon the lands of said Calwell within the State of West Virginia in any wise become discharged or released by the State of West Virginia becoming one of the United States. (p. 654.)
vii.The statute of limitations did not commence to run against the State of Virginia as to said judgments for any purpose prior to the 20th day of June, 1863, when they with their liens passed to the State of West Virginia. (p. 651.)
viii.The statute of limitations did not commence to run against the State of West Virginia for any purpose by virtue of her laws as to said judgments until the 1st day of April, 1869. (Code of 1868, chapter 35, section 20.) (p. 651.)
7.Quaere: Does the statute of limitations run against the lien of a judgment upon the lands of a judgment-debtor, created by statute, in any case? (p. 653).
8.The "authenticated abstract" of a judgment mentioned and referred to in section'4 of chapter 186 of the Code of Virginia of 1860, in relation to docketing judgments is answered and fulfilled by presenting to the clerk of the county court an attested copy of the judgment in lieu of an "authenticated abstract" of the judgment; such copy of a judgment answers substantially for all purposes the requirements of said fourth section, and includes all that an abstract could show and more. (p. 664.)
9.The said two judgments were docketed in the clerk's office of the county court of Greenbrier county by the clerk thereof, in the name of "the Commonwealth against Edmund S. Calwell," on the 29th day of September, 1860, in the judgment lien docket kept in the clerk's office of said county court for the purpose of docketing judgments under the fourth section of said chapter 186 of said Code of 1860. Said judgments as docketed plainly show the date and the amount of each judgment and the date of the docketing of...
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