Hill v. Rixey

• Decision Date: 25 March 1875
• Citation: 67 Va. 72
• Court: Virginia Supreme Court
• Parties: HILL & als. v. RIXEY & STARKE & als.

67 Va. 72

HILL & als. v. RIXEY & STARKE & als.

Supreme Court of Appeals of Virginia.

March 25, 1875

I.The act of March 2, 1866, Sess. Acts 1865-'66, p. 191, ch 77, § 1, " to preserve and extend the time for the exercise of certain civil rights and remedies," is retrospective in its operation, and applies in favor of a judgment creditor as to the docketing of his judgment.

II.The act of March 2, 1866, Sess. Acts 1865-'66, ch. 69, p 180, called the stay law, does not apply to a judgment creditor to relieve him from the necessity of docketing his judgment.

III.R recovers a judgment against G in 1860, but it is not docketed until December 1868.W and others recover judgments against G in 1861 and 1865, which were docketed in November and December 1865 and in 1866.In November 1865 G conveys land in trust to secure other creditors, and in the same month it is left with the clerk to be recorded, but not being stamped and the tax on the deed and fee for recording not being paid until November 1867, it is not admitted to record until that time-- Held :

1.The deed having been recorded before the judgment of R was docketed, the lien of the deed has priority over the judgment of R.

2.The deed was not of record until November 1867, though left with the clerk in November 1865; and the judgments of W and others having been docketed before the deed was recorded, they have priority over the deed.

This was a suit in equity in the Circuit court of Culpeper county instituted in October 1869 by Rixey & Starke, merchants and partners, and as such judgment creditors of Williamson C. George, to subject certain real estate of George to satisfy their judgments.The defendants, beside George, were creditors claiming under a deed of trust from him to secure their debts, and other judgment creditors of said George; and as the property was not sufficient to pay all the debts, the question in the cause was as to the respective priorities of the creditors.

It appears that Rixey & Starke recovered their judgments against George in November 1860, and that they were docketed on the 11th of December 1868.Wm. B. Wayland and three others recovered judgments in March 1861; and they were docketed on the 11th of December 1865.A number of judgments were recovered by other parties in May, June and November of the same year, and they were docketed on the 3d and 9th of November 1865.And still other judgments were recovered subsequent to these last, and were docketed in December 1865 and in 1866.

The deed of trust from George to John C. Turner bears date the 21st of November 1865, and was acknowledged before a justice of the peace of Albemarle county, where the trustee lived, on the 23d of the same month; and it was delivered to the clerk of Culpeper to be recorded, but not being stamped, and the tax upon it and the fees for recording not having been paid, the clerk did not consider it as an office paper on record until the 6th of November 1867, when being made perfect in these respects it was recorded.

When the cause came on to be heard, the court held that the creditors by judgments were to be paid in the order of the date of their judgments, and that the creditors claiming under the deed of trust were to be postponed to all the judgment creditors.And at a subsequent day a decree was made appointing commissioners to sell the land.And thereupon E. B. Hill, one of the creditors claiming under the deed, applied to this court for an appeal; which was allowed.

Royall, for the appellant.

Field & Gray, for the appellees.

STAPLES J.

The appellees, Rixey & Starke, recovered judgments to a considerable amount against Williamson C. George, at the November term 1860, of the County court of Culpeper.These judgments were docketed on the 11th December 1868.Other creditors obtained judgments against the same debtor, some of which were recovered during the war, and others after its termination.These latter were, however, not docketed until 1865 and 1866.

On the 21st November 1865 the same Williamson C. George executed a deed of trust upon his real estate to secure the payment of certain debts therein enumerated.This deed was delivered to the clerk of the county on the 8th December 1865, but the stamp tax and registration fees not being paid, it was not recorded until the 6th November 1867.

The controversy in this case is between these judgment creditors on the one hand, and the trust creditors on the other, the latter claiming as purchasers under the deed of trust just referred to.The question is one of priority of lien, to be decided almost exclusively by the provisions of our own statutes.

It is conceded that as against a purchaser for valuable consideration without notice, no judgment operates as a lien upon real estate unless it is docketed within a year from its date, or ninety days before a conveyance to such purchaser.Code of 1860, § 8, chap. 186.

It is insisted, however, that the acts of March 2d, 1866, and the several acts amendatory thereof, save to creditors the benefit of their liens during the period these acts were in force, although the judgments were not docketed in conformity with the provisions of the statute.One of these acts is entitled " an act to preserve and extend the time for the exercise of certain civil rights and remedies."Acts of 1865-'6, page 191.The first section of this act is very comprehensive in its terms.It declares that the period between the 17th April 1861, and the 2d March 1866, shall be excluded from the computation of the time within which by the terms of any statute or rule of law it may be necessary to commence any action or other proceeding, or to do any other act to preserve or prevent the loss of any civil right or remedy, or to avoid any fine, penalty or forfeiture."

Now it is very clear that " docketing a judgment" is " an act to be done."By the provisions of the 8th section, chapter 186, Code of 1860, already cited, it is to be done within twelve months from the date of the judgment, or ninety days before a conveyance.That it is directly within the saving of the first section of the act of March 2d, 1866, above quoted, does not, I think, admit of a question.The proposition is too plain for argument.My opinion therefore is, that the period between the 17th April 1861, and the 2d March 1866, is to be excluded wholly from the computation in determining whether the judgment was docketed in sufficient time to preserve the lien.It was so decided by the special Court of Appeals in the case of Hart et als. v. Haynes.

The learned counsel for the appellees, as I understand, does not deny that this is the effect of the first section of the act of March 2d, 1866; but he insists that as the judgment liens were lost under existing laws by the failure of the creditors to docket their judgments, the liens could not be restored by subsequent legislation as against bona fide purchasers.In other words, the legislature could not by a retrospective statute divest rights acquired under previous laws.

The act of March 2d, 1866, is, however, a mere repetition or reë nactment of the provisions contained in the acts of March 14th, 1862, and of February 23d, 1864.All these acts embrace a period either of actual war, or the subsequent disorganization of the courts consequent thereon.That it is competent for the legislature to pass remedial statutes of a retrospective character, applicable to such a state of society, can be maintained both upon reason and upon authority.The necessity and validity of such legislation have been recognized by all governments and in all countries which have been the theatre of great civil conflicts.Statutes of this sort merely afford remedies for evils originating in the disorganization of society, when the laws are supposed to be silent, and the courts are closed against the assertion of civil rights.

It is however unnecessary now to discuss the constitutionality of the act of March 2d, 1866, and other acts of a kindred character.Their validity has...