Nutt v. Summers

Citations

• 78 Va. 164
• 1883 Va. LEXIS 24

Syllabus

<p>1. Appellate Court-Accounts-Errors on face.-Though in court below, no exception has been filed, yet if errors be apparent on face of report, the appellate court will notice them.</p> <p>2. Personal Defences.-Where debtor is entitled to plead pleas of personal defence, or privilege, such as infancy, &c., and chooses not to plead them, his creditors, however much such pleas might benefit them, can neither compel him to present, nor can they themselves for him present, such pleas in defence against a claim which has preference over theirs.</p> <p>3. Liens-Res judicata&emdash;Priorities-Gold premiums-Legal tender-Personal privilege-Case at bar.-In 1856, N sold and conveyed for gold land to R H D and J W D, who re-conveyed same to secure purchase money. In 1866, R H D .was released, and the land was conveyed to J W D, who re-conveyed it to secure the purchase money, which was expressly made payable in gold, or its equivalent. By decision of this court, in Summers v. Dame, 31 Gratt. 791, it became res judicata that this arrangement was no novation of the debt, and that N’s lien was superior to the lien of judgments obtained against J W D, between the trust deed of 1856 and the trust deed of 1866. At the sale of the land under the second deed of trust, N purchased it at a •sum equal to the amount of his debt, including principal, interest and gold premiums.</p> <p>Held :</p> <p>1. N is entitled to his lien for the gold' premiums as well as for the principal and interest.</p> <p>2. As judgment creditors can acquire no more nor better rights to a , debtor’s lands than the debtor himself has, N has priority over such creditors for the gold premiums also.</p> <p>3. Even if under the legal tender act of congress, ]¥D had the right to pay the debt to N in currency of the United States, however much depreciated, yet it appears that that right was a mere personal privilege, which he was not obliged to exercise, and that his creditors can neither exercise it for him nor compel h