Brewis v. Lawson

Citations

• 76 Va. 36
• 1881 Va. LEXIS 71

Syllabus

<p>1. Personal Representatives—Heirs or devisees.—Judgment by default against the first, in suit to which the last are not parties, affects not the last; and is not evidence against them in suit to subject the decedent’s real estate; and Code 1873, ch. 127, § 3, does not alter this rule.</p> <p>2. Idem.—The hardship, if any, of this rule may generally be obviated; especially where the demand is liquidated and the personal estate deficient, by proceeding at once in equity in same suit against both personal representative and heirs or devisees.</p> <p>3. Idem.—Substance, not form.—In this case, contrary to good pleading, the bill sets out only the judgment, and not the bond, as evidence of the debt; the heirs by their answer extend their defence to the debt itself, as if no judgment existed.</p> <p>Held :</p> <p>This court, looking to substance rather than form, treats the case as if the bond, instead of the judgment, had been set out as the evidence of the debt. If there were no other evidence in the record of the debt, except the judgment, the creditor could have no decree against the lands descended.</p> <p>4. Statute of Limitations.—The bond bears date the 6th of January, 1849, and is payable on demand ; action was brought on it in August, 1873, and the suit in chancery against the heirs in November, 1873.</p> <p>Held :</p> <p>The statute ceased to run at the commencement of the action on the bond;-and deducting the war and stay-law periods, to 1st January, 1869, the debt was not barred.</p> <p>5. Idem.—Presumption of payment from lapse of time is not affected by the positive bar of the statute, but may be repelled by proof, and in this case is repelled by the letters of the decedent, which are evidence against his heirs claiming under him.</p> <p>6. Amendable Error.—The reversion decreed to be sold to pay the debt Is the joint property of the creditor and of the heirs; the latter should have been required to pay for redemption one-half only of the debt.</p> <p>He