Barksdale & Terry v. Fitzgerald

Citations

• 76 Va. 892
• 1881 Va. LEXIS 77

Syllabus

<p>1. Subrogation—Principal and surety—Evidence—Case here.—Judgment againstT and another docketed April, 1872. Pi. fa. levied and forthcoming bond taken with E as surety. Bond forfeited and returned May, 1873, but not docketed. Judgment on the bond against all the obligors January 19th, 1874, and docketed. E claims that he paid the judgment as surety and asks to be substituted to the lien of the judgment on the land of T conveyed by trust deed to secure F, recorded January 4, 1874. Fi.fa. on last judgment levied on principal obligor’s property, but, with consent of surety, held up by plaintiffs’ order. The debt was then paid without sale. On the last fi.fa. is an endorsement purporting to be signed by W and S, the judgment creditor’s attorneys, to the effect that the fi.fa. was satisfied by E, and one of the attorneys deposed that he was induced to hold up the fi. fa. by the promise of one of the principals or the surety E, or both, to see the money paid at an early day, whilst the testimony of the sheriff tends to show that if payment was made by either, that principal or E, it was probably by the former.</p> <p>Held :</p> <p>1. The endorsement on the fi.fa. is not evidence against any other than the judgment creditor.</p> <p>2. The onus of proving the payment by himself, so as to entitle him to the relief he asks, rests on E, and as it is insufficient, the other questions involved are left undecided.</p> <p>2. Quiere.—Whether the original judgment was merged in the forfeited forthcoming bond, or in the subsequent judgment on the bond, it never having been quashed, or liable to be quashed, so far as appears. See Rhea v. Preston, 1 Matthews, 757; Bank of Old Dominion v. Allen, supra, p. 200.</p> <p>3. Quiere.—“ Whether the payment (if made) by the surety and the release thereby effected of the principal’s property, render the surety’s right of substitution (if it exists) to the lien of the first judgment, subordinate to to the trust deed, which is junior to that jud