Mcclanahan's Adm'r v. Norfolk & W. Ry. Co
| Decision Date | 24 January 1918 |
| Court | Virginia Supreme Court |
| Parties | McCLANAHAN'S ADM'R et al. v. NORFOLK & W. RY. CO. et al. |
Rehearing Denied June 13, 1918.
[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Contract in Writing.]
Appeal from Circuit Court, Montgomery County.
Bill by W. H. Pierce and others against W. D. Martin and others, administrators, in which McClanahan's administrator filed a petition, and W. J. Blair filed an amended petition, making the Norfolk & Western Railway Company and others defendants. Decree dismissing the bill as to the railway company, and the complainants appeal. Affirmed.
Randolph Harrison, of Lynchburg, R. E. Scott, of Richmond, and H. T. Hall, of Roanoke, for appellants.
Roy B. Smith, Everett Perkins, L. H. Cocke, Staples & Cocke and W. W. Coxe, all of Roanoke, for appellees.
This is a lien creditors' bill filed by several judgment creditors of Ferdinand Rorer, suing for the benefit of themselves and all other lien creditors of the said Rorer, who would contribute to the expense of the suit, for the purpose of subjecting his real estate to the payment of the liens thereon. The bill was several times amended and supplemented, and various petitions were filed in the case. A number of questions as to procedure were raised, all of which were disposed of on the former hearing of this case. McClanahan's Adm'r v. Norfolk & Western Ry. Co., 118 Va. 388, 87 S. E. 731. On that hearing this court, among other things, decided the following points:
(1) An amendment of a lien creditors' bill, which sets out in detail other lands bound by the plaintiff's judgments and brings before the court all those who claim to be interested in those lands adversely to the lien creditors, is not a departure from the original bill, and does not make a new case, although it contains some averments not contained in the original bill, and as to lien creditors who subsequently prove their debts in the case the filing of the bill stops the running of the statute of limitations.
(2) The removal of the judgment debtor from the state is of itself an obstruction to a suit to enforce the judgment, and the statute of limitations does not run against the judgment while the debtor remains out of the state.
(3) A judgment which is a lien on land in the hands of an alienee of a judgment debtor, and which is not barred as against the debtor because of his removal from the state, may be enforced against the lands in the hands of such alienee, although the latter has in no way obstructed the prosecution of the plaintiff's rights. Section 2933 of the Code does not apply to such case.
(4) The doctrine of laches has no application to a suit to subject land in the hands of the judgment debtor or his alienees to thelien of the judgment. The judgment is an express, absolute, statutory lien on the debtor's real estate, and the right to resort to a court of equity to enforce it is a legal right, without terms or conditions, and continues during the life of the judgment.
The correctness of the above propositions cannot now be called in question, even if we were disposed to do so, as they have become the law of the case. Steinman v. Clinchfield Coal Corporation, 93 S. E. 6S4.
On the former hearing, the cause was heard on an appeal from decrees of the trial court sustaining demurrers to appellants' several bills and petitions, and refusing to hear the cause on the master's report. The demurrers, of course, admitted all facts stated in said bills and petitions that were well pleaded, and the decision on the former hearing was based on such admissions. Facts controverted by the answers were not considered, and as to these the cause is still at large and undecided. Upon the allegations of the bill, admitted by the demurrer, it was held that the Norfolk & Western Railway Company was a proper party to the suit, but upon the facts set up in its answer, no decision was rendered as to the propriety or necessity of making it a party. This court also declined to pass on the report of the commissioner in chancery, but remanded the cause to the trial court, where it was declared that the details of the report could be more safely worked out.
When the case was remanded, the trial court refused to pass on exceptions to the commissioner's report, and referred the cause to another commissioner with directions to re-execute the order of reference which had been previously entered in the cause. Under this new reference, the commissioner made a report of the liens against Ferdinand Rorer's estate, and their relative priorities, and of the lands subject to the liens of the judgments proved and the order in which said lands were to be subjected. To this report various exceptions were filed by the landowners, which raised most of the questions to be hereinafter considered. So much of the evidence as is necessary will be stated in connection with the consideration of these various exceptions.
The commissioner to whom the cause was referred reported numerous judgments against Ferdinand Rorer recovered in the years 1SS4, 18S5, and 1886, and stated the order of their priority. These judgments were all reported as alive and subsisting liens on the real estate of the defendant Rorer. He also reported numerous parcels of real estate liable to the lien of said judgments, and the order of their liability. In the class of unaliened lands, the commissioner placed an undivided one-half interest in a parcel of land containing one acre, which was conveyed to F. Rorer & Son by John Trout and wife, by deed dated May 5, 1874 in the possession of the Norfolk & Western Railway Company, and subsequently known as the Norfolk & Western Railway office building lot. F. Rorer & Son never thereafter conveyed this lot to any one, and it stands on the records in their names to-day. The next conveyance of this lot of record is a deed from Waid & Terry to the Roanoke Land & Improvement Company, but how, it at all, they acquired title is not disclosed by the records. The chain of conveyances from Waid & Terry to the present owners is complete. With reference to this lot, the commissioner says the Norfolk & Western Railway Company is now in possession of this tract of land, and has been for a number of years, and claims the same by the most notorious acts of adverse possession, exercised by itself and those under whom it claims, as set out in its answer filed in this cause, and as shown by the agreed statement of facts filed before the commissioner, which was returned with his report. The commissioner further states that, as the question of whether or not the railway company's adverse possession amounts to a good and sufficient title is purely a question or law, he does not wish to pass upon it, but respectfully submits it to the judgment of the court.
The Norfolk & Western Railway Company filed sundry exceptions to this report, by which it is sought to set up the following defenses to the judgments asserted against the real estate claimed by it:
(1) That it had acquired title to the premises by adverse possession, and hence the land was not bound by plaintiff's judgments.
(2) That the land had been conveyed to F. Rorer & Son as a partnership, that it was acquired by the partnership, with partnership funds, for partnership purposes, and hence was personal property and not liable to plaintiff's judgments.
(3) That prior to the rendition of any of the judgments proved in the cause the interest of F. Rorer in the lot in controversy had been conveyed to trustees and thereby appropriated to a fund for the payment of all the debts of F. Rorer, and that he had no equity of redemption in such conveyance.
(4) That the complainants were equitably estopped from setting up their judgments against the lot in controversy.
These exceptions of the railway company were sustained by the trial court, and a decree was entered dismissing the case as to the railway company. It is from this decree that the present appeal was taken.
The briefs of counsel filed in this case have presented the case with great ability, and, though they cover upwards of 600 pages, they have been read with pleasure. The cases cited and discussed in the briefs cannot be reviewed in an opinion of ordinary length, nor do I deem it necessary to review them, as the questions involved can be de-cided by the application of well-established principles.
It is earnestly insisted by the railway company that it has acquired perfect title to the lot in controversy by adverse possession for the statutory period, and that it cannot be deprived of this title by being made a party to a chancery suit to enforce judgments against a defendant under whom the railway company does not claim. In fact, it denies that the railway company is either a necessary or proper party to this suit.
Disposing of the last question first, I have no doubt that the railway company is a proper party to this suit. If it ever had title by adverse possession, it did not acquire it before 1S9S. It claims that its predecessor in title entered upon the lot in controversy in the year 1SS3, and proceeded to make valuable improvements thereon. This claim could not ripen into title until the expiration of the 15 years required by the statute. Up to the very last day before the expiration of the statutory period, there was no title by adverse possession. The title by adverse possession was acquired only upon the completion of 15 years of adverse possession. The judgments sought to be enforced in this cause were recovered and docketed in the years 1884, 1SS5, and 1SS6. Long after that, if ever, the title of the railway company accrued, and in a suit for the enforcement of liens on the property, the railway company was certainly a proper party, if not a necessary party, as it has been held time and again that it is improper for a court to sell land until the rights of the parties in reference thereto have been...
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