Gibson Et Ux v. Green's Adm'r

• Decision Date: 05 January 1893
• Citation: 89 Va. 524,16 S.E. 661
• Parties: GIBSON et ux. v. GREEN'S ADM'R et al.
• Court: Virginia Supreme Court

16 S.E. 661

89 Va. 524

GIBSON et ux.

v.GREEN'S ADM'R et al.

Supreme Court of Appeals of Virginia.

Jan. 5, 1893.

Trust Deed—Injunction against Sale — Judgment on Bond Secured—Merger—Statute of Limitations—Bill of Review.

1. Where, in an action to enjoin a sale under a trust deed on the ground that it has been merged in a judgment on the bond secured by it, the bill not only fails to plead the statute of limitations as to the judgment, but prays that the parties entitled to it be required to enforce it in the usual way, the statute is not available on appeal.

2. A trust deed given to secure the payment of a bond is not affected by the rendition of a judgment on the bond, since the original debt is not thereby merged, but only the form of the evidence of the debt changed.

3. In such case the remedy in equity to enforce the lien of the trust deed is not affected by any lapse of time short of a period sufficient to raise the presumption of payment.

4. Where in such action a resettlement is asked of the accounts of defendants' testator as administrator de bonis non because of the recent discovery of a receipt showing assets un-accounted for, and it appears that all the pap-ties were parties to a former suit against deceased's administrators, in which it was charged that deceased had not fully accounted for the assets, the judgment in the latter case is res judicata.

5. Where one of complainants is the assignee of plaintiff in the former suit, the hill cannot he treated as a hill of review, since such bill does not lie for assignees.

Appeal from circuit court, Culpeper county.

Action by J. C. Gibson and wife against J. Ambler Brooks, administrator de bonis non with the will annexed of John Cook Green, deceased, and others, to enjoin the sale of certain land under a trust deed executed by Mrs. Gibson and Lucy B. Shackelford to secure a bond to James W. Green, administrator de bonis non of F. J. Thompson, deceased, who assigned to defendants' testator, and for a resettlement of the accounts of John Cook Green as administrator de bonis non. From a judgment for defendants, plaintiffs appeal. Affirmed.

Judgment was obtained on the bond in 1876. The bill alleged that the debt secured by the deed of trust, had been merged in the judgment, and that the deed of trust had consequently been extinguished.

J. C. Gibson and James Lyons, for appellants.

G. D. Gray, for appellees.

Lewis, P. In the petition for appeal the point is for the first time made, that not only was the debt secured by the deed of trust merged in the judgment, but that the judgment is barred by the statute of limitations; and on this ground it is contended that the injunction ought to have been perpetuated. This position is untenable. In the first place, no mention of the statute is made in the pleadings, and nothing is better settled than that the statute, to be availed of, must be pleaded. Hickman v. Stout, 2 Leigh, 6; Smith v. Hutchinson, 78Va.683. Indeed, not only was the statute not relied on in the court below, but the amended bill prays specifically that proceedings under the deed of trust be enjoined, and that the parties entitled to the judgment be required to enforce it in the usual way. It is, moreover, a general rule, universally recognized, that a decree has to be founded on the allegata, as well as the probata of the case; otherwise, the pleadings, instead of being a shield to protect parties from surprise, would be a snare to entrap them. Putnam v. Day, 22 Wall. 60; Mundy v. Vawter, 3 Grat. 518: 1 Bart. Ch. Pr. 260. But, according to the rule established in Virginia, the debt was not merged in the judgment, nor was the deed of trust security in any way affected by the...