Ginter v. Breeden

Citations

• 90 Va. 565
• 19 S.E. 656
• 1894 Va. LEXIS 24

Syllabus

<p>1. Laches — Loss of evidence — Limitation.-—Delay of twenty-six years in bringing suit to enforce a vendor’s lien, where the delay is explained by the loss of the court records and the destruction of the creditor’s books showing the existence of the lien, held, will not prevent a recovery. And there is no limitation to the life of such lien saving that arising from presumption of payment from lapse of time. Tunstall v. Withers, 80 Va., 892.</p> <p>2. Idem — Presumption of payment — Stay law. — Where vendor’s lien accrued in 1860, the stay law period must be excluded from the twenty years necessary to create the presumption of payment, and no such presumption had arisen when this suit was brought in 1888.</p> <p>3. Assignor — Declarations.—Declarations, either oral or written, of assignor that a chose in action had been paid, held, inadmissible unless made before the assignment thereof. Wilcox v. Pearman, 9 Leigh, 146; and the same is true as to vendor of property after sale as against vendee thereof.</p> <p>4. Witnesses — Incompetency.-—Where one of the contracting party dies, the opposing party cannot testify, and his incompetency renders the co-contractors of the decedent incompetent, and also their assignee, and the heir of any deceased assignee, who is a party to the suit and who is interested in the result. Mason v. Wood, 27 Gratt., 783.</p> <p>5. Exchange of Lands — Liens—Case at bar. — In 1859, by written contract, H. and B. exchanged lands, B. giving bonds for boot. H. sold his tract to G. and I., taking their bonds. No conveyances. H. assigned some of the bonds to plaintiff. Then H., G., I., and B.’s widow essayed to annul the exchange, the sale, and the bonds. H. took his former land back, and sold it to L. on condition he would assume payment of B. ’s bonds, and the widow took possession of B. ’s former land; but no care was taken of the assignee’s interests :</p> <p>Held :</p> <p>The assignee can subject H.’s former land to the lien of B’s bonds, and