Duffy v. Hartsock

• Court: Virginia Supreme Court
• Writing for the Court: MILLER
• Citation: Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570 (1948)
• Decision Date: 01 March 1948
• Parties: DUFFY. v. HARTSOCK.

46 S.E.2d 570

187 Va. 406

DUFFY.

v.HARTSOCK.

Supreme Court of Appeals of Virginia.

March 1, 1948

Appeal from Circuit Court, Wise County; George Morton, Judge.

Suit by Maud R. Duffy, assignee, etc., against Ruth M. Hartsock, to subject described realty to alleged lien of a judgment against defendant. From a decree of dismissal, plaintiff appeals.

Decree affirmed.

Before HUDGINS, C. J., and GREGORY, BUCHANAN, STAPLES, and MILLER, JJ.

Vernoy B. Tate, of Wise, for appellant

Fred B. Greear and Wm. T. Bowen, both of Norton, for appellee.

MILLER, Justice.

This is a suit to enforce the alleged lien of a judgment against real estate. From the allegations of the bill and the stipulation filed by counsel, the undisputed facts are as follows:

On the 23rd day of August, 1928, the First National Bank of Coeburn obtained judgment for $8500, with interest and attorney's fees, against W. H. Hartsock and Ruth M. Hartsock, his wife, in the Circuit Court of Wise County, Virginia. The judgment was duly docketed in the clerk's office of that court. For valuable consideration and by appropriate notation upon the margin of the judgment docket, it was thereafter assigned to the appellant.

W. H. Hartsock is now dead. He and appellee, Ruth M. Hartsock, were residents of Wise County, Virginia, when the judgment was obtained. They thereafter moved to the State of Kentucky where they resided at the time of his death. From the date of their departure until suit was instituted, appellee remained without Virginia for such length of time that the period which she had been in this State since the judgment was obtained was not as much as ten years. No execution had issued on the judgment and no scire facias was ever brought to revive it.

Early in the year 1945, appellee returned to Wise County and by deed dated February 15, 1945, acquired certain real estate in the town of Norton briefly described as lots 23 and 24, of Block 36, Plat. 5.

The pleadings now recited necessarily constitute a repetition of some of the above facts.

On the 19th day of March, 1946, appellant instituted this chancery suit to subject the above-described real estate to the alleged lien of her judgment.

Appellee interposed a plea of the statute of limitations; that more than ten years had elapsed since the rendition of the judgment; that no execution had ever issued or scire facias been brought thereon, and that the right to issue such execution or bring scire facias ceased at the expiration of ten years from the date of the judgment.

Thereupon, appellant asserted that appellee was a resident of Virginia when judg ment was obtained, but departed therefrom; that the accumulated time she had been within this State since the date of the judgment, both before her departure and since her return, had not been as much as ten years; and that the time she had been out of the State constituted an obstruction to the prosecution of appellant's right of action to enforce such judgment.

The trial court concluded that appellant's judgment was barred by the statute of limitations and by decree of January 28, 1947, dismissed her bill of complaint.

Appellant earnestly contends, that under the provisions of section 5825 of the Code of Virginia as in force at the time of the judgment, i. e., 1928, appellee's absence from the State tolled the statute of limitations for such period and that the statute as it existed at the date of the judgment is controlling.

Appellee asserts that section 5825 was amended by the Acts of 1936, p. 251, and 1938, p. 8; that each of those amendments applies to judgments obtained theretofore as well as thereafter and nullified that provision of section 5825 which had previously tolled the statute as to judgment debtors who depart from the State of Virginia.

The question presented requires construction of sections 5825, 6474, 6477 and 6478 of the Code of Virginia. This must be done by careful consideration of section 5825 as it read at the date of the judgment and also of the pertinent amendments subsequently made. The effect of these amendments upon sections 6474, 6477 and 6478 must likewise be determined.

The four sections enumerated as they now appear are as follows:

Section 5825: "Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such persons shall, by departing without the same or by absconding or concealing himself, or by filing a petition in bankruptcy or a petition for extension of time within which to pay his debts in any court of the United States, or by any other indirect ways or means obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time withinwhich the said right might or ought to have been prosecuted. But this section shall not avail against any other person than him so obstructing notwithstanding another might have been jointly sued with him if there had been no such obstruction. Nor shall it apply to the provisions of section sixty-four hundred and seventy-four.

"Upon a contract which was made and was to be performed in another State or country by a person who then resided therein, no action shall be maintained after the right of action thereon is barred either by the laws of such State or country or of this State." Code 1887, § 2933, Acts 1897-8, p. 441, Code 1919, § 5825, Acts 1936, p. 251, Acts 1938, p. 8, Acts 1940, p. 438.

Section 6474: "No suit shall be brought to enforce the lien of any judgment heretofore or hereafter rendered upon which the right to issue an execution, or bring a scire facias, or an action, is barred by sections sixty-four hundred and seventy-seven and sixty four hundred and seventy-eight, nor shall any suit be brought to enforce the lien of any judgment, heretofore or hereafter rendered, against lands which have been conveyed by the judgment debtor to a grantee for value, unless the same be brought within ten years from the due recordation of the deed from such judgment debtor to such grantee. This section so far as it affects such grantees for value or those claiming under them, shall apply as well to judgments in favor of the Commonwealth as to other judgments." Code 1887, § 3573, Acts 1922, p. 570.

Section 6477: "On a judgment, execution may be issued, and a scire facias or an action may be brought within ten years after the date of the judgment, and where execution issues within ten years, other executions may be issued, or a scire facias or an action may be brought within ten years from the return day of an execution issued at any time within said ten years, on which there is no return by an officer, or within twenty years from the return day of any such execution on which there is such return; except that where the scire facias or action is against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative. If, however, a return be made on an execution more than ten years after the return day thereof, it shall not extend the lien of the judgment beyond ten years from such return day as against a purchaser for value of real estate from the judgment debtor who acquired title prior to the time such return was actually made. Any return by an officer on an execution showing that the same has not been satisfied, shall be a sufficient return within the meaning of this section." Code 1887, § 3577, Acts 1942, c. 125.

Section 6478: "No execution shall issue, nor any scire facias or action be brought, on a judgment in this State, other than for the Commonwealth, after the time prescribed by the preceding section, except that, in computing the time, any time during which the right to sue out execution on the judgment is suspended by the terms thereof, or by legal process, shall be omitted; and sections fifty-eight hundred and twenty-three to fifty-eight hundred and twenty-six, inclusive, and section fifty-eight hundred and thirty shall apply to the right to bring such action or scire facias in like manner as to any right, action, or scire facias mentioned in those sections; and except that when the judgment is for the penalty of a bond, but to be discharged by the payment of what is then ascertained, and such sums as may be afterwards assessed or found due upon a scire facias on the judgment, assigning further breach of the bond, such scire facias may be brought within ten years after such breach." Code 1887, § 3578.

Section 6477 has been amended once since 1928. This amendment was by Acts of 1942, page 162. It extends the time in which an execution may issue and amends it in other particulars. This amendment is, however, unimportant to the question presented as no execution was ever issued or any scire facias brought on this judgment

Section 5825 has been thrice amended, namely, in the years 1936, 1938, and 1940. At the time of the rendition of the judgment against appellee in 1928 it read as follows:

"Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such person shall, by departing without the same or by absconding or concealing himself, or by any other indirect ways or means obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But this section shall not avail against any other person than him so obstructing notwithstanding another might have been jointly sued with him if there had been no such obstruction. Nor shall it apply to such grantees for value and those claiming under them as are mentioned in section sixty-four hundred and seventy-four. Upon a contract which was made and was to be performed in another State or country by a person who then resided therein, no action shall be maintained after the right of action thereon is barred either by the laws of such State or country or...