Coles' Adm'r v. Ballard

Citations

• 78 Va. 139
• 1883 Va. LEXIS 21

Syllabus

<p>1. Statute of Limitations—War and stay periods—Case at bar.—Bond executed November 10th, 1844, payable on demand, was not barred when action, brought July 17th, 1877. Under Code 1849, ch- 149, the twenty years’ limitation began July 1st, 1850, and was suspended during war and stay periods, from April 17th, 1861, to January 1st, 1869, and had not expired when action was brought.</p> <p>2. Presumption of Payment—-Endorsement of payments.—Presumption of payment from lapse of time has no reference to the positive bar of the statute, but is repellable by proof, and in case at bar is repelled by testimony of principal objigor, the endorsements of interest payments on the bond, and other circumstances.</p> <p>3. Decedent’s Estate—Distributee—-Statute of limitation.—Limitation of five years within which, under Code 1873, ch. 146, § 16, gifts, assignments, &c., must be assailed, does not protect from liability for decedent’s debts his property which has passed into distributee’s hands.</p> <p>4. Stale Claims—Laches.—“ Laches” is the neglect to do something which a party ought to do, and mere lapse of time, unaccompanied by some circumstance affording evidence of a presumption that the right has been abandoned, is not considered “laches.” And claims are considered “stale” only where gross laches is shown with unexplained acquiescence in the operation of an adverse right.</p> <p>5. Surety—Creditor—Laches—Heirs—Distributees.-—Surety on bond can never charge creditor with laches, until he has in vain prompted the creditor to pursue the principal. It is the surety’s business to watch his principal. Creditor need not move till notified. Same is true of surety’s heirs and distributees.</p> <p>6. Equitable Jurisdiction and Relief—Statute of limitation—Laches and lapse of time.—If a legal demand which is barred at law be asserted in equity, equity follows the law. If such demand be one to which the statute applies, but the lapse of time be not such as to bring it within the statut