Davis v. Roller

• Citation: 106 Va. 46,55 S.E. 4
• Parties: DAVIS . v. ROLLER. BOWMAN'S EX'RS . v. SAME.
• Decision Date: 24 September 1906
• Court: Virginia Supreme Court

55 S.E. 4

106 Va. 46

DAVIS .

v.ROLLER.

BOWMAN'S EX'RS .

v.SAME.

Supreme Court of Appeals of Virginia.

Sept. 24, 1906.

1. Judgment—Action on—Limitations.

Code 1904, § 3577, provides that where execution issues within a year from judgment, an action may be brought on the judgment within 10 years from return day of execution. Held, that an execution regular in all respects, duly attested by the clerk, and marked "to lie" though never delivered to an officer, was "issued" within the statute.

2. Same—Computation op Time.

Where, after the issuance of an execution a decree was made in the cause, directing that no more than a certain amount should be collected on the execution until the further order of the court, to be made subsequently, the time between the two orders should be excluded in computing limitations under the statute.

3. Liens—Priorities—Judicial Sales—Purchase Price.

The land of an insolvent was sold in a chancery suit, and purchased by his wife, but, she not being able to meet the first payment, the receiver was authorized to assign the bond covering such payment to D.; the decree providing that the lien so assigned should be postponed until the other bonds were paid off in full. Subsequently a judgment was obtained by the receiver on the remaining bonds, and by decree the receiver was authorized to sell the judgment to R. by the same decree, the receiver being directed to convey the lands to the wife, retaining a lien to secure the amounts assigned, and the deed recited that a lien was retained to secure the payment first to D. of a certain sum, and to secure to R. a certain sum. Held, that there was no preference as between D. and R„ but their liens were of equal dignity.

4. Estoppel—Claim to Property.

D. having assigned his lien to A., who was one of the sureties in the debt due R., could not assert his lien as against R. in an action by R. on the judgment assigned to him.

Appeal from Circuit Court, Rockingham County.

Suit by John E. Roller against L. Virginia Davis and others. From a decree for complainant, defendants Davis and the executors of David Bowman prosecute separate appeals. Reversed and remanded.

Conrad & Conrad, for plaintiff.

J. B. Stephenson and Chas. Curry, for defendant.

KEITH, P. The appellee, John E. Roller, suing on behalf of himself and all otherlien creditors of Mary E. Pence, filed his bill in the circuit court of Rockingham county, alleging that B. G. Patterson, receiver, recovered a judgment for $1,200, with legal interest from the 1st day of May, 1880, until paid, subject to a credit of $546 as of January 9, 1883, against Mary E. Pence and John P. Pence, her husband, Arehart, Bowman, Will, Thompson, Homan, and Andes; that in the chancery cause of Basore v. Pence, B. G. Patterson, special receiver, assigned to the complainant $870.88, a part of this judgment, with interest on $775.09 from November 29, 1884, and on $95.79, from January 12, 1885; and that by deed dated February 7, 1885, Patterson, as special commissioner, acting under the decrees of the court, conveyed to Mary E. Pence the real estate involved therein, which need not be here specifically stated. This deed was admitted to record in the clerk's office of Rockingham county on the 12th day of February, 1885, and the judgment referred to was docketed in the clerk's office of that county on the 7th day of May, 1884.

The bill further alleges that Mary E. Pence subsequently became indebted to the complainant in various sums, for which she and her husband executed to him a negotiable note for $300. due June 18, 1888; that by reason of certain transactions set forth in the bill, it was agreed between the plaintiffs John E. Roller, and Mary E. Pence, and John P. Pence, her husband, that a credit of $950 should be given to them upon settlement of the matters outstanding between them, to be applied to the satisfaction of the $300 negotiable note, and to the lien of the judgment which had been assigned to him.

It further appears from the bill that a part of the judgment in the name of Patterson, receiver above referred to, was assigned to one James Dove, and by him assigned to Andrew Andes, who was himself one of the defendants in the judgment; and a lien for both sums—that is to say, the $300 assigned to Andes and $870.88 assigned to Roller, together constituting the amount of the Patterson judgment—was reserved as a vendor's lien upon the property conveyed to Mary E. Pence by Patterson, special commissioner by the deed of February 7, 1885, before mentioned.

The prayer of the bill is, that all the parties against whom the judgment was obtained be made defendants to the bill; that the vendor's lien and judgment lien may be enforced against the property of the principal defendant; and that, if there be any deficiency after appropriating the proceeds of said property, the living sureties and the representatives of those deceased may be called upon to pay their respective proportions; and for general relief.

Several of the defendants answered the bill; and the cause coming on to be heard, an account was ordered to be taken as to the fee simple and annual value of the real estate owned by Mary E. Pence, and of the liens against the same and order of their priority. The commissioner reported, and to his report sundry exceptions were filed, with the result that the matter was again referred to a commissioner; and upon the exceptions to this second report arise the issues which we are now called upon to consider.

The statute of limitations was pleaded to the judgment in the name of Patterson, receiver, against Pence and others, which was in part assigned to the appellee, Johne. Roller. The commissioner was of opinion that this judgment was barred by the statute, and an exception to this ruling was sustained by the court. This is one of the alleged grounds of error insisted upon by appellants.

This judgment was obtained at the April term, 1884, of the circuit court of Rockingham county, and it was docketed on May 7th of that year. The first execution upon it bears date April 30, 1884, is regular in all respects, and is duly attested by the clerk. Upon the back of it is the following indorsement: "The within execution is subject to a credit of five hundred and forty-six dollars and sixty cents as of the 9th day of January, 1883;" and then follow the words "To lie."

The defendants In the judgment Insist that this...