Francisco v. Shelton

Citations

• 85 Va. 779
• 8 S.E. 789
• 1889 Va. LEXIS 91

Syllabus

<p>1. Subrogation&emdash;Principal and surety&emdash;Set-off&emdash;Release of surety&emdash;Case at bar.&emdash;Vendor conveyed land, whereon was a trust deed which vendee got credit for, and promised in writing to satisfy. Later, ve.ndor repurchased part and gave bond. Without having satisfied trust deed, vendee died, leaving to his father, who was a surety for trust debt, property ample to pay vendee’s debts. Trust creditor released levy of fi.fa. on property of said surety, and then sold the land under trust deed, but not for enough to pay trust debts. In suit for the deficiency;</p> <p>Held :</p> <p>As to trust creditor, vendee became principal and vendor surety for trust debt, for which the father, taking as heir vendee’s property cum onere, became primarily bound ; and he was not entitled to set-off, against vendee’s promise to satisfy trust deed, vendor’s said bond, but the property released from levy should be credited on trust debt so far as trust debtor and his sureties are concerned, and an account of said property should be directed.</p> <p>2. Idem.&emdash;In the case at bar the father was adjudicated a bankrupt, and at sale of some of his lands trust creditor was purchaser and bidder for others, and court below directed an account of value of such lands and injury by such bidding;</p> <p>Held :</p> <p>Error.</p> <p>3. Jurisdiction&emdash;Bankruptcy&emdash;Pending suit.&emdash;Subsequent proceedings in bankruptcy, to which lien creditor is not made a party, do not divest the State court of jurisdiction of suit pending therein for the enforcement of a lien, the rule being that the court that first takes jurisdiction of the parties and the subject-matter retains it.</p>