Tunstall's Adm'r v. Withers

Citations

• 86 Va. 892
• 11 S.E. 565
• 1890 Va. LEXIS 57

Syllabus

<p>1. Sheriff-Administrator—Sureties—■Liability.—-Where estate is committed to sheriff, he must proceed with the administration till completed, and he and his sureties are liable, and suits to recover the assets must be in his name, though his official term be ended.</p> <p>2. Vendor’s Lien—Suits to enforce—Parties.—Though original vendee has aliened land conveyed to him with lien for purchase money reserved, yet he must be a party to any suit to enforce the lien.</p> <p>■3. Idem—Statute of limitations—Presumption.-—Though action at law to recover purchase money be barred, yet suit in equity to enforce the vendor’s lien is not affected by any time insufficient to raise presumption of payment. Code, sec. 2935.</p> <p>4. Idem—Presumption of Payment.—A debt lying dormant and unrecognized for twenty years is, without evidence to the contrary, presumed by law to be paid, and such presumption may be formed from circumstances coupled with lapse of a shorter period.</p> <p>5. Idem—Laches—Case at- bar.—Here land was conveyed, with vendor’s lien reserved, in 1860, and suit to enforce the lien brought in 1886, the war and stay period being eliminated, and the circumstances of the case considered: held, the vendor’s lien is not affected either by the statutes of limitation or by any presumption of payment; nor does the delay constitute laches.</p> <p>'6. Witnesses—Incompetency—Case distinguished.—Where one party to contract is dead, the other, being a party to suit and liable for costs, though a discharged bankrupt, is not competent to testify. Reynolds v. Callaway, 31 Gratt., 436, distinguished.</p>