Wilcher v. Robertson

Citations

• 78 Va. 602
• 1884 Va. LEXIS 34

Syllabus

<p>t. Judgments and Decrees-Conclusiveness.-It is essential to the jurisdiction which gives a judgment conclusiveness that the defendant had legal notice. If the record shows no notice, the judgment is null. If the judgment be of a court of general jurisdiction, and the record shows legal notice to defendant, extrinsic evidence is inadmissible to show want of such notice. As to decrees under which sales have been made to bona fide purchasers, this is especially true.</p> <p>2. Idem-Idem-Non-residents-Publication.-Where a defendant is proceeded against as a person in being and as a non-resident of this State, and an order of publication was accordingly made and regularly executed, its effect is equivalent to an averment on the record that he had in fact been summoned, which averment cannot be contradicted in a collateral proceeding.</p> <p>3. Idem-Strangers impeaching.-Those strangers to the record only are entitled to impeach a judgment, who, if it were given full credit and effect, would be prejudiced quoad some pre-existing right.</p> <p>4. Idem-Bar to another suit-Dismissal-That a judgment bar another suit, the point in controversy must be same in both cases; and in the first must have been determined on its merits. Order of dismissal is not a determination on its merits, and is no bar to second suit for same cause of action.</p> <p>5. Landlord and Tenant-Attornment-Notice.-Mere occupancy does not imply tenancy, yet if occupant acknowledge owner’s title, and by his leave continue to occupy the land, he ceases to be a trespasser, and his possession is that of him whose title he acknowledged. By after-wards acknowledging another’s title, he cannot be considered as holding under the latter adversely to the former, until after notice to him whose title he first acknowledged.</p> <p>•6. Ejectment-Outstanding title.-To defeat an action of ejectment, an outstanding title must be a present, subsisting, operating legal title, on which the owner could recover if asserting