Welton v. Boggs
| Decision Date | 10 December 1898 |
| Citation | 32 S.E. 232,45 W.Va. 620 |
| Parties | WELTON v. BOGGS et al. |
| Court | West Virginia Supreme Court |
Submitted Sept.9, 1898
Syllabus by the Court.
1. Where a suit in equity is brought by a judgment creditor to subject the lands of the debtor to the satisfaction of his judgment, and the plaintiff in the bill sets forth the fact that there is another judgment against the same defendant older in point of time, but which has not been kept alive by issuing executions as required by statute, but the defendant is in life, and does not plead the statute of limitations as to said older judgment, the plaintiff in said suit in equity has no right to file or rely on such plea.
2. The plea of the statute of limitation is, in general, a personal defense, to be made by the party against whom the demand is asserted.
3. A mere stranger to the claim, as a creditor, although he may be injuriously affected by his debtor's failure to set up the statute, cannot either set it up himself, or compel his debtor to do so, as in such case the privilege is personal.
Appeal from circuit court, Pendleton county; R. W. Dailey, Judge.
Bill by S. A. Welton against E. W. Boggs and others. Decree for defendants, and plaintiff appeals. Affirmed.
F. M Reynolds and L. J. Forman, for appellant.
George A. Blakemore, for appellees.
At the May rules, 1894, for the circuit court of Pendleton county S. A. Welton filed a bill against E. W. Boggs, W. S. Boggs trustee, I. P. Boggs (since deceased), Solomon Cunningham, M Manzy, and J. W. Warner, in which she alleged that on the 16th day of April, 1886, she obtained a judgment against the defendant E. W. Boggs in said court for the sum of $522.33, with interest thereon from that date, and costs; that on the 25th day of May, 1886, said judgment was duly docketed in the judgment lien docket of said county; that execution was issued on said judgment on April 23, 1886, and placed in the proper officer's hands, returnable to July rules, 1886, which execution was duly returned: that no part thereof had been paid; and that said judgment constituted the first lien on the real estate of said E. W. Boggs which is described in the bill. It is also alleged in plaintiff's bill that from the records of said county it appears that on the 15th of May, 1879, judgment was rendered against said E. W. Boggs and Solomon Cunningham in favor of David Goff, commissioner, use of William Adamson, for the sum of $549.37; that execution was issued on said judgment on June 17, 1879, returnable to the 1st day of August, 1879; that the records do not show any return of said execution, but that no execution has issued thereon since, and that said judgment is barred by the statute of limitations, and constitutes no lien on the real estate of said E. W. Boggs mentioned in the bill; that there was no personal property of the defendant Boggs out of which her judgment could be made; and that the real estate of said Boggs would not rent in five years for a sufficient sum to pay off her judgment and costs. The plaintiff charges that her judgment aforesaid is the first lien on all of said real estate, and should first be paid out of the proceeds arising from the sale of said real estate; that the judgment aforesaid in favor of Goff, commissioner, use of Adamson, is out, by the statute of limitations, and constitutes no lien on any of said real estate; and that said Goff judgment should be credited by several payments, the amount of which was not known to plaintiff. And she prayed that her judgment lien might be enforced against said land. On the 15th of June, 1894, the bill was taken for confessed as to the other defendants, except E. W. Boggs, who appeared and demurred to said bill. Demurrer was overruled, and cause referred to a commissioner to ascertain the real estate owned by the defendant Boggs, its character and location, its value, annual and absolute, and the liens binding the same, whether by judgment or otherwise, and their priorities. Said commissioner returned his report, giving the real estate owned by Boggs, and ascertaining that the plaintiff's judgment described in her bill was entitled to the first place in point of priority of lien against said real estate, and the deed of trust executed by Boggs and wife to W. H. Boggs, trustee, to secure to William Adamson said judgment for $549,37, costs, and interest, subject to a credit of $300 paid February 27, 1894, was entitled to the second lien on said land. This report was excepted to by J. P. Boggs, executor of the will of William Adamson, deceased, for the reason that it gave priority to the lien of S. A. Welton over the lien of William Adamson; the deed of trust lien having been taken to secure the payment of a judgment obtained long prior to the judgment of S. A. Welton, and said judgment of Adamson being, at the time said trust deed was taken, alive, and on the lien docket of said county. On the 11th day of April, 1896, the cause was heard, and said exception to the commissioner's report was sustained, and the court decreed that said deed of trust was entitled, as a lien, to priority, and that the plaintiff Welton's judgment constituted the second lien on all the real estate...
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