Fulkerson v. Taylor

• Decision Date: 19 June 1902
• Citation: 41 S.E. 863,100 Va. 426
• Parties: FULKERSON et al. v. TAYLOR et al.
• Court: Virginia Supreme Court

41 S.E. 863

100 Va. 426

FULKERSON et al.

v.TAYLOR et al.

Supreme Court of Appeals of Virginia.

June 19, 1902.

JUDGMENT — LIEN — SUBROGATION — EXECUTION—VALIDITY—DOCKETING JUDGMENT.

1. Where a vendee is entitled to specific performance of a verbal contract for the sale of land made prior to May 1, 1888, creditors of the vendor cannot subject the property.

2. Where an owner of land finds it bound by a lien for the purchase money due by his grantor, and, to protect himself, pays off the lien, he is entitled to be subrogated to the rights of the holder of the lien.

3. Where a decree is rendered against a person for failure to perform his duties as curator, in which he is described as such, it is a personal judgment.

4. Where an execution is issued in violation of an agreement between the parties entered of record, it is voidable only, and is sufficient to protect a judgment from the statute of limitations.

5. Under Code, § 3561, directing that every judgment shall, as soon as docketed, be indexed, and shall not be regarded as docketed as to any defendant in whose name it is not indexed, a judgment is not duly docketed which is not indexed.

Appeal from circuit court, Lee county.

Suit by Eliza A. Taylor and others against L. D. Fulkerson and others. Decree, for plaintiffs, and defendants appeal. Reversed.

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

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

KEITH, P. Eliza A. Taylor filed her bill in the circuit court of Lee county, from which it appears that in March, 1893, she recovered a judgment in that court against L. D. Fulkerson for the sum of $432, with interest, which was duly docketed in the clerk's office of said county on the 27th of March, 1893. She further shows that by deed dated April 3, 1888, James W. Orr, commissioner in a chancery cause, conveyed to L D. Fulkerson a lot of land containing three acres, which deed was admitted to record on the 14th day of October, 1894; that Fulkerson afterwards sold said parcel of land to J. R. Thomas, and put him in possession thereof, but made no conveyance of it to him, and afterwards the heirs of Thomas sold and conveyed this lot to C. M. Morgan, who sold to James M Wheeler, who, having died, this lot was, upon partition of his real estate, assigned to his daughter, Mollle Kesterson, at whose request Pulkerson and wife and Morgan and wife, by deed dated August 31, 1894, conveyed it to O. R. Kesterson, her husband. This deed was duly recorded on the 9th of October, 1894. This lot is known in the record as the "3-acre mill tract."

It further appears that James W. Orr, commissioner, on the 11th of May, 1892, conveyed to L. D. Pulkerson, by deed of that date, four parcels of land which Fulkerson had purchased some years before in the chancery cause of Richmond's administrator against Bales and others. Pulkerson, between the date of his purchase and the 24th of September, 1889, sold lots 1, 2, and 3 and the onehalf interest in lot No. 4 to John C. Vanoy, who went into possession thereof, and to him Fulkerson executed a title bond, which was never recorded. Vanoy and wife, on the 24th of September, 1889, conveyed a strip of land as a right of way to the Louisville & Nashville Railroad Company. This deed is recorded in the Lee county clerk's office. Afterwards Fulkerson and wife and Vanoy and wife, by deed dated June 24, 1892, conveyed these three lots and the one-half interest in the fourth lot to Moses L. and James M. Ely. This deed was duly recorded on the 17th of December, 1894. The other one-half interest in the fourth lot was sold by Fulkerson and wife to their son, C. E. Fulkerson, on the 20th of June, 1892, and this deed was recorded on the 11th of March, 1895. This one-half lot was conveyed by C. E. Fulkerson to Granville Smith, and by Smith to William A. Crockett, who now owns it.

It appears that L D. Fulkerson was at one time the owner of two other tracts of land situated in Lee county, one of which was conveyed to him by David Chadwell by deed of April 21, 1893, duly recorded in Lee county, containing 113 acres, and by the same deed an undivided interest of about 80 acres, which was afterwards conveyed to him by J. M. Wheeler by deed of January 30, 1875. The other of the two tracts referred to contains 51 acres, and was conveyed to Fulkerson by H. S. Hoskins by deed of February 6, 1878. The tracts containing 113 and 51 acres were conveyed by Fulkerson to J. M. Wheeler by deed dated October 4th, and recorded November 10, 1887. August 21, 1889, Wheeler conveyed a strip of this land to the Louisville & Nashville Railroad Company as a right of way. By deed dated February 5, 1890, Fulkerson and wife sold and conveyed to James M. Wheeler the 80-acre tract above mentioned. Wheeler, Sr., died without ever having parted with any of said land except that parcel which he had conveyed to the Louisville & Nashville Railroad Company for a right of way. After his death his real estate was partitioned among his heirs, and these lands were assigned to his son, James M. Wheeler, Jr.

The bill sets out a number of Judgments, prays that Fulkerson and his several alienees may be made parties defendant, and that all proper accounts may be taken and the assets marshaled, so that each creditor may receive that to which he is entitled. All of the judgment creditors alluded to came in and were made parties to the suit.

Certain of the defendants filed answers, to which the plaintiffs presented numerous exceptions, and, the cause coming on to be heard upon the bill, answers, exceptions, cross bills, exhibits, depositions, and reports, the court decreed that none of the judgments sought to be enforced were liens upon the three-acre mill tract, owned by the defendant Mollie Kesterson, being of opinion that the proof showed a verbal contract by Thomas from Fulkerson prior to May 1, 1888, followed by payment of all the purchase money, and by such improvements thereon and possession thereof as entitled Joseph R. Thomas and those claiming under him to hold the land free from the claims of Fulkerson's creditors.

The court was of opinion, and so decreed, that the judgment of Charles E. Baylor, rendered September 3, 1887, for $1,979.91, and certain other judgments set out in the decree of subsequent date, were liens upon the land conveyed by Fulkerson and wife and Vanoy and wife to Moses L. and James M. Ely, upon the strip conveyed by Vanoy and wife to the Louisville & Nashville Railroad Company, and upon the parcel of land conveyed by Fulkerson and wife to C. E. Fulkerson, and that the Baylor judgment was a lien on the 80 acres of land conveyed by Fulkerson and wife to James M. Wheeler, Sr., and on the two tracts of 113 acres and 51 acres conveyed by Fulkerson and wife to Wheeler by deed of October 4, 1887, and also on the strip conveyed by Wheeler to the Louisville & Nashville Railroad Company by deed of August 21, 1889; and, it appearing that these lands would not rent for enough within five years to pay off and discharge the judgments, they were decreed to be sold. From this decree the Louisville & Nashville Railroad Company and certain other parties aggrieved applied for and obtained an appeal.

The first question which we will consider is upon the error assigned by the appellees to so much of the decree as exempts the three-acre mill tract from their demands.

We are of opinion that the decree of the circuit court is right upon this point. It was for the plaintiffs to state and prove a case which entitled them to recover. Fulkerson purchased the mill tract from Orr, commissioner, on the 3d of April, 1888. It seems that as early as July 7, 1879, Orr, commissioner in the case of Chadwell against Chad-well et al., pending in the circuit court of Lee county, sold this parcel of land to Fulkerson, and the sale was duly confirmed at the November term. About September, 1883, Fulkerson sold this tract of land to Thomas, and put him in possession; and Thomas, andthose claiming under him, paid the whole purchase price, and made extensive improvements upon the land; and it is not denied that, as between themselves and Fulkerson, they were entitled to the specific execution of the contract of sale and to a deed investing them with the title. If the creditors of Fulkerson can, under such circumstances, subject this property, it must be by force of the statute law with respect to the recordation of certain instruments. The bill filed in this case does not allege that there was any written evidence of the contract of sale from Fulkerson to Joseph R. Thomas. It alleges that Fulkerson sold the tract of land to Thomas, put him in possession thereof, but never made any conveyance to him; but it does not state that there was a written contract. The answer of the defendants denies that there was a written contract, and asserts that it was a verbal one, under which possession was delivered, and the whole purchase price paid. The burden was upon the plaintiffs to make out their case, and the evidence upon which they relied is insufficient for that purpose. The circuit court held that this parcel of land was exonerated from the charge which plaintiffs sought to impose upon it, and that decree we cannot disturb upon the record before us.

The next question arising upon the appeal is as to the liability of the parcels of land purchased by Fulkerson in the chancery cause of Richmond against Bales, sold by him to Vanoy, and known in the record as the "Ely Lands."

It appears that Fulkerson owed a...