Fulkerson v. Taylor

• Decision Date: 14 January 1904
• Citation: 102 Va. 314,46 S.E. 309
• Court: Virginia Supreme Court
• Parties: FULKERSON et al. v. TAYLOR et al.

46 S.E. 309

102 Va. 314

FULKERSON et al.

v.TAYLOR et al.

Supreme Court of Appeals of Virginia.

Jan. 14, 1904.

VENDOR AND PURCHASER—DEFECT IN TITLE-CONSTRUCTIVE NOTICE — CORPORATIONS — RAILROADS—JUDGMENT—DOCKETING—INDEX —LIEN—EXECUTION—COLLATERAL ATTACK.

1. Under Code 1887, i 3561, requiring every judgment to be indexed in the judgment docket in the name of each defendant, the word "Same, " occurring immediately below the name of a judgment debtor on the index, constitutes a sufficient index of the judgment next listed against him.

2. An execution which is voidable but not void, cannot be attacked in another case in which the judgment on which it is based is sought to be enforced.

¶ 2. See Execution, vol. 21, Cent. Dig. § 206.

3. Where one purchases land by parol, and is put in possession, he is not protected, to the extent of the purchase price paid, as to judgments against the vendor, until he has acquired a perfect equitable title by paying the entire price.

4. Where an examination of the records would have shown an infirmity in the title to a right of way granted to a railway company, it is bound by notice of the defect.

5. In view of Code 1887, §§ 1079, 1083, providing how a railroad corporation may acquire perfect title to land needed for its purposes, it is, in the absence of charter provisions to the contrary, subject to the same rules in acquiring title to land and making improvements thereon as private individuals.

6. Where a railway company has acquired a portion of its right of way by a defective title, of which it had constructive notice, a court may decree that the land be sold, with the portion of the roadbed thereon, to satisfy a judgment against the company's vendor.

Appeal from Circuit Court, Lee County.

Suit by Eliza A. Taylor and others against L. D. Fulkerson and others. From a decree in favor of plaintiffs, defendants appeal. Reversed in part.

C. T. Duncan and H. B. Sewell, for appellants.

R. T. Irvine and L. T. Hyatt, for appellees.

BUCHANAN, J. This case has been appealed twice. The decision of the court in the former appeal is reported in 100 Va. 426-437, 41 S. E. 863, and the proceedings had in the case prior to that time are set out in the opinion of the court.

The first assignment of error upon this appeal is that the court erred in holding that J. M. Wheeler, Sr., at the time he purchased and paid for the 113.80 and 51 acre tracts of land in the proceedings mentioned, had actual notice of the judgment of C. E. Baylor against L. D. Fulkerson.

The appellees assign as cross-error, under rule 9 (45 S. E. vi), that the court erred in not holding that Wheeler had constructive notice, even if he did not have actual notice, of that judgment. If this be true, it will be unnecessary to consider the question of actual notice.

Upon the former appeal, it appeared that the judgment had been properly docketed upon the judgment lien docket, as provided by section 3560 of the Code of 1887, but it did not appear that the docketing had been indexed as required by section 3561. The case was remanded to the circuit court without passing upon that question. After the case went back, the deposition of the clerk of the county court of Lee county was taken, and with his deposition was filed extracts from the index of the judgment lien docket. One of these extracts is as follows:

"Fulkerson L. D. Cur. & et al. ads. Emma Harber, p. 168.

"Same ads. A. L. Pridemore, p. 168.

"Same ads. Rosetta Harber, p. 168.

"Same ads. Bays Children, p. 168.

"Same ads. Chas. E. Baylor, p. 168."

The circuit court was of opinion that the use of the word "Same" in the index in the place of the full name of the judgment debtor was not a compliance with the provisions of section 3561 of the Code of 1887, which requires that every judgment shall be, as soon as it is docketed, indexed by the clerk in the name of each defendant, and shall not be regarded as docketed as to any defendant in whose name it is not so indexed.

It is true, as contended, that the name of L. D. Fulkerson, the judgment debtor, is not written out in the index to the docket in which the Baylor judgment is docketed, yet the word "Same" follows the name of L. D. Fulkerson in such connection that it could refer to and mean nothing else than "L. D. Fulkerson." If it does not mean that, it is without any signification whatever. "Same" is no one's name. If not the usual, it isa very common, method of indexing both recorded deeds and docketed judgments. To hold that such a mode of indexing is invalid would unsettle many titles, and might result in much injustice. The object of the provision of the Code for docketing and indexing abstracts of judgments is to apprise third persons—as, for instance, intending purchasers—of the existence and character of the judgment if they exercise ordinary care and intelligence. Cooke v. Avery, 147 U. S. 377, 13 Sup. Ct. 346, 37 L. Ed. 209. In the case cited, which involved the construction of a statute similar to the one under consideration, the Supreme Court of the United States said: "The only ground upon which this abstract and index could be held insufficient was that the names of the plaintiffs were not given in full in either abstract or index. Was this omission fatal to the lien? The circuit court did not think so, and we concur in that view. Willis v. Smith, 66 Tex. 31 . 'The object of the statute is not to incumber the register with full information, but to excite inquiry and indicate the source of full information.' It appears to us that the source of full information was so indicated in this instance that no reasonably prudent or cautious inquirer could go astray." To hold that the index to the docketed judgment in this case is sufficient, it is not necessary for us to go as far as did the Supreme Court in the case cited. It is always safest, however, for clerks, in the performance of their duties in indexing recorded writings and docketed judgments, to comply with the letter of the statute imposing such duties upon them.

The refusal of the court to quash the execution which had been issued upon the Baylor judgment in violation of the agreement of the parties is assigned as error.

The administratrix of L. D. Fulkerson, in an answer filed on the 8th day of June, 1901, set up the plea of the statute of limitations to the judgment of Baylor, upon the ground that more than 10 years had elapsed between the date of its rendition and the institution of this suit, and that no valid execution had ever issued thereon. She filed with her answer a notice served upon the personal representative of the judgment creditor, that she would on the 7th day of that month move the circuit court to quash the execution in question upon the ground that it was prematurely issued. Upon the same day upon which the answer was filed, a decree was entered in this cause overruling a motion made by the administrator of L. D. Fulkerson. What that motion was is not disclosed by the record. If it was the motion to quash the execution, it does not appear to have been made on the day named in the notice, and, besides, could not have been legally made in this case.

Conceding that the execution was improperly issued, it was not void, but only voidable. Until it is avoided it must be regarded as a valid execution, and could not be avoided by plea or proof in this, a collateral suit. Fulkerson v. Taylor, supra.

In Beale's Adm'r v. Botetourt Justices, 10 Grat. 278, the execution issued more than a year and a day from the date of the decree, without any proceeding by way of scire facias or otherwise to authorize the same. In that case it was held—though the conclusion may not have been necessary to a decision of the case—that the validity of the execution could not be attacked in that, a collateral proceeding. The reasoning, however, of Judge Moncure in that case, and the authorities cited by him, sustain the doctrine that an execution issued improperly, which is voidable, but not void, upon a judgment or decree rendered in one case, cannot be attacked in another case in which such judgment is sought to be enforced, but that, if such execution is to be avoided, it must be done in some independent proceeding instituted for that purpose.

The appellees also assign as cross-error that the circuit court erred in decreeing that the sum paid by J. M. Wheeler on the purchase price of...