Barksdale & Terry v. Fitzgerald , 1881 Va. LEXIS 77 ( 1881 )

Burks, J.,

delivered the opinion of the court.

. This is the fourth appeal in this cause. On the first, Terry being sole appellant, the decree below was reversed, and the cause remanded for further proceedings. 32 Gratt. 843. After the case got back into the circuit court, Elisha. Barksdale, Jr., was, on his petition, admitted a party, and in the further proceedings several decrees were pronounced, from three of which successive appeals were allowed, the first to Terry alone, the second to Barksdale, and the third to Terry and Barksdale jointly, all pending here at the same time. The first two were dismissed during the last term here of this court on the motion of the appellee, one of them because of the failure of the appellant to give the required bond, and the other for failure to have the record printed. The one last allowed, which seems to relate alone to the decree last entered, remains to be disposed of. The statute provides that after the dismission of an appeal, writ of error, of supersedeas, no other appeal, writ of error or supersedeas shall be allowed to or from the same judgment, decree, or order. Code of 1873, ch. 178, § 18. This act, in its spirit, if not in the letter, would seem to preclude inquiry into the matters involved in the former appeals. See Campbell v. Campbell, 22 Gratt. 649, and cases there cited.

But the conclusions we have reached will not be affected by waiving the bar of the statute in the present case.

1. As to the appellant Barksdale.

It appears that the firm of Wise Bros., on the 15th day of January, 1872, recovered against Terry and W. P. Barks-dale a judgment which wa.s docketed on the 26th of April,. 1872. Execution was sued out, which was levied and a forthcoming bond taken; in which Terry, W. P. Barksdale, Elisha Barksdale, <Jr. (the appellant), and William J. Banks were the obligors, the last two as sureties presumptively, though there is no direct proof of this. The bond being forfeited, it was returned May 20,18.73, to the clerk’s office from which the execution issued, and a judgment was rendered upon it against all the obligors January 19, 1874; and this latter judgment was also docketed, the forfeited forthcoming bond returned, having under the statute the force and effect of a judgment, never having been docketed. The claim of the appellant Barksdale is that he paid the judgment on the forthcoming bond as surety, and he asks to be substituted to the lien of Wise Bros., on the land of Terry conveyed to secure the appellee Fitzgerald. The deed of trust securing Fitzgerald was admitted to record a few days before the recovery of the judgment on the forthcoming bond—to-wit, January 3, 1874. An execution was sued out on this judgment and levied on the personal property of Terry, the principal obligor or one of the principal obligors.

For some reason unexplained, the property was not sold under the levy and a venditioni exponas was awarded, and there was no sale under that, but, with the consent and approval of the sureties, it was held up by order of the plaintiff’s attorneys, and the debt was paid by some one without sale.

If paid by the appellant Barksdale, as surety on the forthcoming bond, several questions might arise. First, whether his right of subrogation should be confined to the judgment on the forthcoming bond, which remains in force, and is subsequent and therefore subordinate to the deed of trust, or be extended to the lien of the original judgment, recovered aud docketed in 1872; in other words, whether the original judgment was not satisfied or merged in the forfeited forthcoming bond or in the subsequent judgment on the bond, the latter never having been quashed, nor being liable to be quashed, so far as appears. See Withers v. Carter, 4 Gratt. 420; Jones, &c. v. Myrick’s Ex’ors, 8 Gratt. 179, 211, 212; Rhea and others v. Preston, 75 Va. (1 Matthews), 757, 774; Bank of the Old Dominion v. Allen and others, supra, 200; Freeman on Judgments (3d ed.), § 216 and cases cited in notes. Second, whether the payment (if made) by the surety and the release thereby effected of the principal’s property levied on, do not, to the extent at least of the value of that property, render the'surety’s right of substitution (if it exists) to the lien of the first judgment, subordinate to Fitz.gerald’s lien, though junior, created by the deed of trust. Clevinger v. Miller, 27 Gratt. 740; Sherman’s Adm’r v. Shaver and others, 75 Va. (1 Matthews), 1; Rhea and others v. Preston, Ib. 757, 769-772.

But the questions suggested, interesting as they are, need not be decided in the present case, as the alleged payment by the appellant Barksdale, which is the foundation of his claim, is not, in our opinion, established by the proofs.

On the ft. fa. that issued to. enforce the judgment on the .forthcoming bond, or on the execution book, there is a -written statement, without date, purporting to be signed .by Whittle & Sims, attorneys for the plaintiff, to the effect that the fi. fa. was “ satisfied by E. Barksdale, Jr.,” the appellant here. But this statement is not evidence against the appellee Fitzgerald; and Mr. Sims (one of the attorneys), in his deposition, does not say that Mr. Barksdale paid the execution, but he thinks he was induced to hold it up by promises made to him by William P. Barksdale .(one of the original debtors), or Elisha Barksdale, or both; that they would see the money paid at an early day, and the testimony of the sheriff tends strongly to show that if payment was made by either William P. Barksdale or Elisha Barksdale, it was probably made by the former, and not by the latter. The burden of proof was on the appellant Barksdale. He never asserted his claim until after the ■cause had been remanded by this court on the first appeal, and it is singular that he did not attempt to maintain his pretensions by giving his own deposition, or at least by taking the depositions of Terry and William P. Barksdale touching the matter in dispute, especially when it was twice referred to the commissioner for inquiry. If he did not have notice of the first inquiry made, as he alleges, he certainly had notice of the last. The commissioner so reports, and files the summons with the sheriff’s return, showing that notice was given.

2. As to the appellant Terry.

Waiving every objection to a review of all the decrees rendered by the circuit court after the cause was remanded by this court, notwithstanding the dismissal of the two appeals already mentioned, we still find no error to the prejudice of Terry.

. The court ordered an account of Fitzgerald’s debt and all prior liens on the land. The commissioner reported two debts only—Fitzgerald’s and another to Hairston secured by a prior deed of trust. Terry excepted to both as usurious. The exceptions were properly overruled. Though the Hairston debt bore interest at the rate of 12 per centum per annum—that was the rate allowed by law at the time the debt was contracted; and the amount due on Fitzgerald’s debt had been finally adjudicated in a former suit between Terry and Fitzgerald.

The court also, pursuant to the decree of this court, with a view to a sale of the land in parcels, if a sale in that manner should be more advantageous, ordered certain commissioners, appointed for the purpose, to view the land, take such testimony as might be offered, and if none was offered, then to exercise their best judgment and report whether the land was susceptible of division into different tracts, &c.

They executed the order, divided the land into parcels, and made their report. Terry excepted to the report, and the court then ordered the commissioners to mate another division according to Terry’s own directions. They made it, and their report was confirmed without objection or exception by any one. Nothing then remained to be done except to decree a sale. The decree was made. The commissioner was directed to first offer the land in parcels, and if the price bid was sufficient to satisfy the liens and costs, he was required to-accept the bids; if not sufficient, he was directed to offer the tract undivided. He pursued the directions of the decree. The first offer was in parcels, and the bids aggregated about $1,000, less than one-fifth of the amount of the reported liens. He then offered the entire tract, and obtained a bid of $4,977,-which he accepted and reported, and the court confirmed the sale.

It is not worth while to enter upon a discussion of Terry’s exceptions to the report of the sale. They appear to be very frivolous, and not supported by anything in the record-The gist of the whole is that the land was sold at a sacrifice, but there is no proof whatever to that effect; none was tendered, not even ex parte affidavits.

The court is of opinion that as there is no error in any of the prior decrees which have been considered, so also there is none in the last, and that it should be affirmed.

Decree affirmed.