Paxton v. Rich

Citations

• 85 Va. 378
• 7 S.E. 531
• 1888 Va. LEXIS 44

Syllabus

<p>1. Creditors’ Suit&emdash;Decree for account&emdash;Statute of Limitations&emdash;Suspension of suits&emdash;Dead debtor&emdash;Living debtor.&emdash;In such suit decree for an account of liens, suspends the running of the statute of limitations against all debts due from a deceased debtor’s estate, and against all liens on the property of a living debtor’s estate. In the former case, such decree suspends all pending suits of creditors, who must come in under the decree. In the latter case, a lien creditor, not made party to such lien creditors’ suit, or not having-proved his claim before the commissioner, will not be bound by proceedings in such suit; and creditors at large may proceed in their suits to judgments; for without judgment or other liens they could have no standing in the chancery court.</p> <p>2. Liens&emdash;Debts&emdash;Remedies&emdash;Statute of Limitations.&emdash;It is settled doctrine that though remedy on claim secured by mortgage, trust deed or vendor’s lien, be barred at law, yet remedy in equity to enforce the lien is not affected by any lapse of time short of period sufficient to raise presumption of payment. Bank v. Guttschlich, 14 Peters, 19.</p> <p>3. Judgment Liens&emdash;Statutory&emdash;How long enforceable.&emdash;Lien of judgment ceases with the judgment’s life. This lien, created by statute, is not collateral to, but grows out of, judgment. So long as judgment is enforceable at law by levy of fi. fa. it may be enforced in equity, and no longer, unless judgment be on debt secured by mortgage, trust deed or vendor’s lien. Hutchinson v. Grubbs, 80 Va. 251.</p> <p>4. Presumption of Payment&emdash;No return&emdash;Facts repelling presumption.&emdash; The statute of 1874, represented by l 909, Code of 1887, providing that in motions against officers for money, the fact that a fi fa. has not-been returned shall be prima facie evidence that the whole amount has been collected, has no application to any but such proceedings. And the facts