Lamon v. Gold
| Decision Date | 17 June 1913 |
| Citation | 79 S.E. 728,72 W.Va. 618 |
| Parties | LAMON v. GOLD et al. [d1] |
| Court | West Virginia Supreme Court |
Submitted March 12, 1912.
Syllabus by the Court.
When a judgment becomes barred by the statute of limitations, it ceases to be a lien on the debtor's land, and a court of equity will not enforce it.
The lien of a judgment continues so long as the right to have execution issued or to bring an action or scire facias on it is not barred.
Notwithstanding a debtor's departure from and residence out of the state, after a judgment has been recovered against him, may not obstruct the creditor in the enforcement of his lien, it will suspend the running of the statute and preserve the lien of the judgment.
( Additional Syllabus by Editorial Staff.)
Code 1906, c. 139, § 11, relating to limitation of time for enforcement of judgments, provides for omission from computation of time for reasons stated in chapter 104, § 18 providing that "where any such right as mentioned in this chapter shall accrue against a person who had before resided in this state, if such person shall by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means obstruct the prosecution of such right, *** the time that such obstruction may have continued shall not be computed as a part of the time within which the said right might or ought to have been prosecuted." Held that, as thus used, the word "obstruct" does not mean to prevent altogether but rather to interrupt, to impede, or embarrass the creditor in the pursuit of any of his remedies.
The word "suit," as used in Ann. Code 1906, c. 139, §§ 10, 11, relating to proceedings for enforcement of judgment liens, means a suit in equity.
Appeal from Circuit Court, Berkeley County.
Bill by J. M. Lamon against Robert Gold and others. Decree for plaintiff, and Maria E. Janney appeals. Affirmed.
Faulkner Walker & Woods, of Martinsburg, for appellant.
J. O Henson, of Charleston, for appellee.
This is a judgment creditors' suit, and Maria E. Janney, a defendant and judgment creditor, has appealed from a decree overruling her exceptions to the report of a master commissioner, to whom the cause was referred, to make report of the lands owned by the judgment debtor and the liens thereon.
In the years 1897 and 1898 a number of judgments were recovered against Robert Gold and his several indorsers on notes executed by him to different persons. Those judgments bear different dates. W. O. Nicklas, as administrator of Louisa Martin, deceased, recovered two judgments against said Gold on the 11th of January, 1898, for $984.86 and $492.73 respectively. Maria E. Janney paid these two judgments and took an assignment of them. In November, 1897, George I. Pitzer, first indorsed on a note held by the Citizens' National Bank and joint judgment debtor with said Gold to said bank, having paid the judgment, instituted a suit in chancery against Gold and others, the purpose of which was to subject all his lands, except his estate in remainder in the dower lands of his mother, to the payment of the liens thereon. In that suit all his lands, except his said estate in remainder, were sold, and the proceeds derived therefrom were sufficient to pay only a portion of the liens. The purposes of that suit having been accomplished, it was retired from the docket by decree made on September 30, 1898.
J. M. Lamon, indorser for, and joint judgment debtor with, said Gold, having paid the judgment against him and his principal in favor of the Citizens' National Bank, brought the present suit on the 3d of June, 1909, the purpose of which is to subject Gold's undivided one-third interest in remainder in a tract of 69 acres; it being the tract which was assigned as dower to his mother out of the lands of which his father had died seised.
More than ten years had elapsed between the return days of the last executions issued on all of the judgments against said Gold and the bringing of the present suit, except the two judgments now held by Maria E. Janney. Executions were issued upon those two judgments on January 4, 1907, and were returned not satisfied on February 4, 1907, which was within ten years from the return of the last executions that had been issued thereon. Notwithstanding executions had not been issued on the prior judgments for a period of more than ten years before the suit was brought, the commissioner reported them as liens superior in dignity to the lien of the judgments held by Maria E. Janney, and she excepted to the report, and the court overruled her exceptions. Appellant's judgments are subsequent in date, but she contends that the prior judgments have not been kept alive by having executions issued thereon within the time required by section 10, c. 139, Code 1906, while she was diligent and did keep her judgments alive. She contends that her judgments are the only existing liens.
Robert Gold was a resident of the state at the time the judgments were recovered, but some time in the year 1899 he left the state and has ever since continued to be a nonresident. He was proceeded against, in this suit, by order of publication, but before final decree he filed his answer, admitting that the judgments reported in favor of appellees had not been paid.
Relying upon Welton v. Boggs, 45 W.Va. 620, 32 S.E. 232, 72 Am.St.Rep. 833, counsel for appellees insist that the statute of limitations is purely a personal defense to the debtor, and that, so long as he is living, one judgment creditor cannot rely upon it to defeat the lien of another judgment creditor. But counsel for appellant attack the soundness of that decision and have presented very strong argument in their brief to show that it is inequitable and against the weight of authorities upon that question and should therefore be overruled. In support of their argument they cite the following cases, viz.: Callaway v. Saunders, 99 Va. 350, 38 S.E. 182; McCartney v. Tyrer, 94 Va. 198, 26 S.E. 419; Monk v. Exposition Corporation, 111 Va. 121, 68 S.E. 280; Brandenstein v. Johnson., 140 Cal. 29, 73 P. 744; De Voe v. Rundle, 33 Wash. 604, 74 P. 836; Boucofski v. Jacobsen, 36 Utah 165, 104 P. 117, 26 L.R.A. (N. S.) 898; 19 A. & E. E. L. (2d Ed.) 146. But we do not think that a decision of this question is essential to a determination of the case, for the reason that the suit is brought to enforce liens against the real estate of the debtor; and, if the court can see that the liens ceased to exist before the bringing of the suit, it will not enforce them. The court will not enforce a right which it sees does not exist. Although section 5, c. 139, Code 1906, creating the lien of a judgment, does not expressly limit its duration, yet, in view of other provisions of the law, the lien ceases to exist after a time, if certain requirements for keeping it alive and in existence have not been complied with.
The lien of a judgment is a right created by statute, and the Legislature has prescribed conditions and requirements for the preservation of such right, and noncompliance with those requirements will operate to divest the right. Ordinarily limitations relate to and affect the remedy without destroying the right. But a lien is a right; the enforcement of it is a remedy. If time has destroyed the lien, it cannot be restored by simple consent; it must be done by some kind of legal proceeding. So, while a barred judgment may furnish the basis of an action or scire facias on which another judgment may be obtained, if limitation is not pleaded, it is not...
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