Jones v. Hall

• Court: Virginia Supreme Court
• Writing for the Court: HUDGINS, Justice
• Citation: Jones v. Hall, 177 Va. 658, 15 S.E.2d 108 (1941)
• Decision Date: 09 June 1941
• Parties: JONES. v. HALL.

15 S.E.2d 108

JONES.

v.HALL.

Supreme Court of Appeals of Virginia.

June 9, 1941.

Error to Circuit Court, Accomac County; Jno. E. Nottingham, Judge.

Proceeding by W. T. Hall against Paul M. Jones, instituted by filing of a petition for attachment against property of defendant, who was a nonresident, and which was based on alleged duty of the defendant as purchaser of standing timber to see that proceeds from sale of the timber were applied to the payment of the debts of the seller, a judgment debtor. To review an adverse judgment, defendant brings error.

Reversed and final judgment entered for defendant.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLE-STON, and SPRATLEY, J J.

George L. Doughty, Jr., of Onancock, and B. T. Gunter, Jr., of Accomac, for plaintiff in error.

H. Ames Drummond, of Accomac, for defendant in error.

HUDGINS, Justice.

On January 15, 1934, W. T. Hall obtained two judgments, totaling $2,427, against Jerome Marshall. These judgments were duly docketed in the judgment lien book in the clerk's office of the Circuit Court of Accomac County. On November 5, 1936, Paul M. Jones purchased certain standing timber "from Jerome Marshall, who had title to and was in possession of a certain tract or parcel of timber, * * * for the sum of $1350.00, and paid said sum * * * to the said Jerome Marshall." While the purchaser was given two years in which to cut and remove the timber, he began operations as soon as he obtained the deed--November 6, 1936--and finished cutting and removing the timber from the land on the 22nd day of March, 1937. In 1938, certain prior lien creditors of Jerome Marshall brought a creditor's suit against him, in which all the real estate of the judgment debtor was sold, including the land from which the timber had been removed, and the proceeds of the sale were distributed among the creditors in the order of their priority. All liens prior to the judgment liens of W. T. Hall were paid in full, and a final decree dismissing the cause was entered at the February term, 1940. Jerome Marshall is insolvent.

W. T. Hall, the judgment creditor, instituted this proceeding by filing a petition for attachment against the property of Paul M. Jones, a non-resident. In the petition it is alleged that it was the duty of the purchaser to see that the proceeds from the sale of the timber were applied to the payment of lien debts of the judgment debtor, and that the failure to perform this duty rendered the purchaser personally liable to the judgment lien creditor for the amount of the purchase price. The trial judge, without a jury, entered judgment for the full amount of the purchase price paid for the timber less $344, which was applied on the payment of accumulated taxes on the land. From that judgment Paul M, Jones obtained this writ of error.

The dominant question presented is whether a judgment lien creditor, after timber has been cut and removed, is entitled to recover from the vendee the amount of the proceeds of the sale of the timber paid the judgment lien debtor in possession, where it appears that the land had been sold by other creditors and did not bring a sufficient amount to pay such judgment lien creditor.

The question is one of first impression in this jurisdiction. No case is cited in the briefs, nor have we found one in our research, permitting recovery under such circumstances; but see Hamilton v. Phillips, 120 Ala. 177, 24 So. 587, 74 Am.St. Rep. 29, Clark v. Johnson & Lattimer, 1913, 7 Ala.App. 507, 61 So. 34, 36, and Connecticut General Life Ins. Co. v. Smith, 1932, 226 Ala. 142, 145 So. 651, 654.

At common law lands of the debtor could not be seized to satisfy a judgment unless the judgment was in favor of the king. By statute, West. II, 13 Edw. 1, ch. 18, it was provided that: " 'When a debt should be recovered, or recognizance should be acknowledged in the king's court; or when damages should be adjudged, it should be in the election of the plaintiff to sue out a writ commanding the sheriff to make the debt or damages out of the goods and chattels of the debtor, or to deliver to the creditor all the chattels of the debtor (except oxen and beasts of the plough), and a moiety of his land, until the debt should be levied by a reasonable price or extent; * * *.' When a creditor chose to avail himself of this latter alternative, of subjecting the debtor's lands, there was an entry upon the roll, Quod elegit sibi ex-ecutionem fieri de omnibus catallis et med-ietate terrae (that he elected to have execution against the debtor's chattels, and a moiety of his land); and thence the execution itself came to be denominated an elegit, and the estate (which) devolved, by means of it, upon the creditor, 'until the debt should be levied by a reasonable price or extent, ' was known as an estate by elegit. (2 B1. Com. 161; Bac.Abr.Ex-ecution, (C.) 2.)

"The words of the statute are that the creditor shall have the property delivered to him per rationabile pretium vel exten-tam, which implies that there is to be a valuation made. This valuation, it has always been held, that the sheriff alone cannot make. It must be made by a jury which the sheriff impanels for the purpose, whose charge is to appraise the debtor's goods and chattels (except beasts of the plough), which thereupon the sheriff is to deliver to the creditor as his own; and if thereby the debt is satisfied the lands are not to be extended; but if the debt is not thereby extinguished, the moiety of the debtor's lands is to be delivered to the creditor at an annual sum, to be assessed by the jury, to be held by him until the residue of the debt shall be levied. (Bac. Abr. Execution, (C), 2.)" Minor Inst., 4th Ed., Vol. II, p. 302-3.

"It was by the judicial construction given to this writ, that the judgment was said to be a lien on the land. The lien resulted from the mandate of the writ to deliver to the creditor * * * a moiety of all the lands and tenements of the debtor, whereof he was seised at the date of the judgment or at any time afterwards. The lien was an incident of the writ and depended for its existence and continuance upon the capacity to sue out the. writ. * * *" Tudge Burks, the elder, in Borst v. Nalle, 28 Grat. 423, 429, 69 Va. 423.

Professor Minor states several changes which were made by later statutes in the writ of elegit: "1st, that personal chattels were wholly excluded from the operation of the writ; and 2nd, that it applied to the debtor's lands, leasehold as well as freehold. * * *, " and that "a judgment binds all the real estate of or to which the debtor was possessed or entitled at or after its date, notwithstanding the debtor may have sold it to purchasers for value and without notice of the judgment." Minor Inst., 4th Ed., Vol. II, p. 303.

This writ of elegit worked a hardship upon purchasers for value, so, in 1843 (later codified by the revisors of the Code of 1849), it was provided that no judgment should be a lien on real estate as against a purchaser thereof for valuable consideration without notice unless it be docketed. See Code of 1849, ch. 186, sec. 8. Under the writ of elegit the sheriff was commanded to cause all the real estate of, or to which, the said judgment debtor was possessed or entitled, to be delivered, by reasonable extent, to the judgment creditor "for him and his assigns to hold the same, until the amount of the said judgment be levied thereof." Code of 1849, c. 187, p. 712, § 8. But the sheriff had to make an inquisition of the value of the lands, for which purpose a jury was sworn, who ascertained the amount of real estate owned by the judgment debtor and its annual value. At such valuation the land was delivered to the judgment creditor for his claim to be satisfied.

This writ gave to the judgment creditor the right to seize the land of his judgment debtor in satisfaction of his judgment debt. This right was preserved by statute and made independent of the capacity to sue out the elegit. The statute now provides: "Every judgment for money rendered * * * shall be a lien on all the real...