Ryan v. Kanawha Val. Bank , 18 C.C.A. 384 ( 1895 )

HUGHES, District Judge.

Under the law of West Virginia, a plaintiff, after obtaining judgment for his debt, can issue a writ of fieri facias against the personalty of the defendant. If the execution be returned unsatisfied, in whole or in part, and he wishes'to reach the land of the defendant, he must file a bill in equity in aid of the execution. The judgment which he has obtained is a lien upon the defendant’s land in any county in the state, although, as against a purchaser of the land without notice, the lien does not hold unless it be docketed in the county in which the land lies. In 1877, the plaintiff, appellee in this cause, recovered judgment against Lewis G. Huling et ah, in Kanawha county, for $3,540.72. This judgment was docketed in 1878 in Kanawha and Clay counties, and in May, 1880, in Nicholas county. In these two last counties the defendant Huling owned lands. The docketing of the judgment in Clay and Nicholas counties gave notice that the original suit, in which judgment had been entered, was in Kanawha county. The writ of fieri facias issued on the judgment in April, 1878, having been returned “No property found,” the plaintiff, in October, 1878, brought its bill in equity in Kanawha county to subject lands in that county to its judgment. The case was referred, in June, 1880, to a commissioner. His report was filed and confirmed in April, 1881. Sale of the lands in Kanawha county was ordered, and sale of them was made and confirmed in October, 1884. On the 22d of September, 1880, Huh ing conveyed the lands in Clay and Nicholas counties to the vendors of the defendant, appellant in this suit, who were thus purchasers pendente lite, in respect to the chancery suit in Kanawha county. There can be no doubt but that the statute of limitations began to run against the original judgment, at its date, in 1878, as to the lands in Clay and Nicholas counties. But the question in the case is whether the chancery suit, begun in October, 1878, and finally ended in October, 1884, brought to complete the relief of the judgment, was a continuation of the judgment, and kept it alive, as against the running of the statute of limitations, until the date of the final decree. The record shows that the latter suit, brought to enforce the judgment, resxxlted in satisfying it, in part, as late as October, 1884, leaving the residue of the amount of the original judgment xxixpaid. The chancery proceedings were a part of and ancillary to the judgment at law, wex*e a practical mode of enforcing it. and kept it alive. The decree in chancery was a continuation of the judgment, and continued it in force up to the date when it was exctered, kept it alive, not only in Kanawha couxxty, where it was obtained, bxxt in every county of the state in which it was docketed. Tin* docketing in Clay and Nicholas counties gave notice, there as well as in Kanawha county, of the Kanawha judgment, and of all pi'oeeedixxgs taken ixi Kanawha county to enforce it. Just as a successful appeal would have held the statute of limitations in abeyance, so did ihese proceedings. It follows that the running of the statute of limitations, which was unquestionably suspended in Kanawha comity until October. 1884, was also suspended in Clay aud Nicholas’ counties, and that the limit of the statute was not reached until October, 1891, 10 years after the decree in chancery. The defendant’s (appellant’s)vendors, having purchased the Huling lands in Clay and Nicholas counties in September, 1880, did so pendente lite, with constructive notice of the judgment which had been docketed in those counties, and of all proceedings taken in Kanawha county to enforce, keep alive, and extend that: judgment. The docketing in Clay and Nicholas counties put all purchasers of the lands there on inquiry; and 1he maxim “vigilantibus non dormientibus jura subvoniunt” applies. The decision of the court below must therefore be affinned.