White v. Offield , 90 Va. 336 ( 1893 )

Laoy, J.,

delivered the opinion of the court.

The appellant, R. M. White, filed his petition in the circuit court of Greene county, in the cause therein of Davis v. Ofiield, seeking to have a certain debt claimed to be due to him by James Offield’s estate paid out of the funds in the hands of the court, arising from the sale of the said lands in a creditor’s suit against Ofiield. He sought to have his petition filed in June, 1889. His claim is that his brother, William W. White, had died in October, 1865, leaving a considerable personal estate, and that James Ofiield had qualified as administrator of his estate in the same month, in the county court of Greene. At the February term following, in 1866, of the said court, an order was entered requiring the said Ofiield to settle his accounts before a commissioner, and, in pursuance of said order, his accounts were settled, and it was found that there was in his hands as administrator a net balance of $922 36 for distribution among the creditors of said William W. White’s estate. The debts were in excess of the assets, and the amount was apportioned by the court, and the interest of each creditor ascertained, and the report confirmed March, 1868. In 1887 the said petitioner, R. M. White, filed his bill in chancery against Ofiield and his securities, seeking to establish his claim against White’s estate against Ofiield and his sureties, and make it o.ut of the, latter, regarding the former as insolvent; but his bill was demurred to, demurrer sustained, the bill never amended, and that suit was dismissed. That in that suit the court decided that he had a judgment against the said Ofiield by reason of the said proceedings in the county court, and was barred by the statute of limitations. The petitioner asked leave to file his petition in the lien creditor’s suit in the said court in the style of Davis v. Ofiield, and the other cases consolidated with it, and that his debt might be declared the first ■lien on the land, and paid first out of the .fund. '

At the June term, 1889, of said - court, Ofiield demurred to .and answered the said petition. He denied, that-he owed, anything to the creditors of W. W. White. ■ That, many years before, be had settled his accounts, and returned his vouchers to the clerk’s office; and that by reason of the lapse of so great length of time, or by reason of some unknown' cause, they had been misplaced and lost in the clerk’s office, and had not yet been found. That the recited orders of the county court in 1868 were not, iu his opinion, judgments, but, if so, still they were obtained March, 1868, more than twenty years before, no execution had ever issued on them, and they were barred; and that the demand is stale, by reason of the laches of the creditor, and ought not to be enforced in a court of equity; and, moreover, the said petitioner, at the March rules, 1887, filed his bill against him and his sureties on his official bond as administrator of W. W. White, for the purpose of enforcing his supposed judgments, and at the June term the court decided that he had no valid claim, and dismissed his bill, and he went out of court. That the said bill raised the same questions as those now raised by the petition, and the decree dismissing the said bill was never appealed from, and has become final and irrevocable. That in that suit, by that decree, were settled all the questions involved in that suit actually decided, and all such as might properly have been decided therein, or were involved therein, and therefore the questions now raised are the same questions raised again between the same parties, and are res adjudicate/, and cannot be again heard or decided, and the petition ought to be dismissed, which was done, accordingly, by the court. The circuit court decided that these were judgments, or had the effect of judgments, and were liable to the rules of law applicable to judgments, and were barred by the statute of limitations, no execution having been issued nor scire facias sued out .thereon within ten years, and dismissed the petition, with costs; whereupon the petitioner, the appellant here, applied for and obtained an appeal to this court.

The decree is plainly right. There is no ground upon which any other could have been placed. , (1) The judgments were barred after the lapse of ten years. (2) The great lapse of time raises the presumption of payment, and the laches of the parties in asserting their claims are fatal. (3) The questions having been decided and the suit dismissed, and no appeal talcen, the question is res adjudícala, and cannot be again raised. McCormick v. Wright, 79 Va., 533; Campbell v. Campbell, 22 Gratt., 665; Insurance Co. v. Clemmitt, 77 Va., 366; Miller v. Cook, Id. 806; Hutcheson v. Grubbs, 80 Va., 251: Rowe v. Bentley, 29 Gratt., 756; Fleming v. Dunlop, 4 Leigh, 338; Brown v. Butler, 87 Va., 626. For the foregoing reasons, the decree appealed from must be affirmed.

DECREE AFFIRMED.