Opinion
01-09-1879
REDD v. RAMEY & als.
Kean & Davis, for the appellant. James Alfred Jones, for the appellees.
R obtains a decree against his guardian and his sureties for a certain sum of money; and sues out an execution, which is levied, and a forthcoming bond taken, and forfeited. The court on its chancery side, on notice to the obligors in the forthcoming bond, renders a judgment in favor of R against them; and this judgment is docketed--HELD:
1. The judgment is a valid judgment, and having been docketed, it is notice which will affect all subsequent purchasers of land from any of the defendants in the judgment.
This was a suit in equity in the county court of Henry county, afterwards removed to the circuit court of sad county, instituted by Edmund B. Redd to enforce the satisfaction of a judgment recovered by him, against John H. Redd, Peter R. Ramey, Overton R. Dillard, and John H. Jamerson, upon a forfeited forthcoming bond. The object of the suit was to subject the lands held by said Ramey at the date of the judgment; a part of which land had been sold by Ramey to John R. Robertson, and of which John R. Robertson had sold a part to Henry C. Robertson. These and a number of others, including several brothers and sisters of the plaintiff, who held similar judgments against the same parties, were made defendants, and the prayer of the bill was that the land still in the possession of Ramey and that sold to John R. Robertson might be sold to satisfy the judgments recovered by the plaintiff and his brothers and sisters.
John R. Robertson answered, averring he was a purchaser for valuable consideration fully paid up, and without notice, either actual or constructive, of the judgments of the plaintiff, or of any other person. He insisted that the judgments were rendered on forthcoming bonds taken on executions sued out on decrees in a chancery suit, and the judgments on the bonds having been rendered on the chancery side of the court, were of no force or validity, and when docketed did not amount to any notice whatever; and that neither the decrees nor the forthcoming bonds had been docketed.
The cause came on to be heard on the 8th of May, 1873, when the court held that the lien asserted by the plaintiff on the land of John R. Robertson had no legal validity, and dismissed the bill as to said John R. and Henry C. Robertson. And thereupon Edmund B. Redd applied to this court for an appeal; which was allowed. The only question in the cause in this court was as to the lien of the judgment; and on this question the facts are stated by Judge Christian in his opinion.
Kean & Davis, for the appellant.
James Alfred Jones, for the appellees.
OPINION
CHRISTIAN, J.
The court is of opinion that the decree of the circuit court of Henry county declaring that the lien asserted by the appellant has no validity, and dismissing his bill against the appellees, John R. and Henry C. Robertson, is plainly erroneous.
The orders of the circuit court of Henry entered on the chancery side thereof on the 5th day of September, 1859, were in form and legal effect judgments, and cannot be held to be mere awards of executions.
The appellant, Edmund Redd, together with his brothers and sisters, had, in a chancery suit instituted in the circuit court of Henry, recovered against their guardian and his sureties a decree for various amounts due to each of them--the amount decreed in favor of the appellant being $583.23 with interest thereon from the 12th July, 1858, till paid. Upon this decree executions were sued out and levied, and forthcoming bonds taken. These forthcoming bonds were forfeited, and judgments entered in the following form in favor of the appellant, and in the same form as to the other wards:
This day came the plaintiff by his attorney, and it appearing to the satisfaction of the court that the defendants have had legal notice of this motion, they were solemnly called, but came not. And thereupon, on motion of the plaintiff, it is considered by the court that he recover against the defendants the sum of twelve hundred and eighty-nine dollars and fifty-two cents, the penalty of the said bond, and his costs by him about his motion in this behalf expended; and the said defendants in mercy, & c. But this judgment is to be discharged by the payment of six hundred and forty-four dollars and seventy-six cents with interest thereon, at the rate of six per centum per annum, from the 27th day of June, 1859, till paid, and the costs.
This judgment was regularly docketed on the lien docket in the clerk's office of the county court of Henry. From the date of such docketing it was a lien upon all the real estate of the defendants, and was notice to all purchasers of the same.
Before the act of 1842 (Sess. Acts, 1842, ch. 71, § 2) a forthcoming bond forfeited had the force of a judgment, and the clerk, on motion, awarded execution thereon. But by said act the bond forfeited and returned had no longer the force of a judgment; but the court was directed, after notice, to grant judgment and award execution.
It is now provided by statute " that the obligor in such forfeited bond shall be liable for the money therein mentioned, with interest thereon from the date of bond till paid, and the costs; the obligee or his personal representative shall be entitled to recover the same by action or motion." Code 1860, ch. 189, § 3. Although a forfeited forthcoming bond when returned to the clerk's office has the force of a judgment, yet there may be a judgment rendered by the court, by motion or action, thereon. See Code 1849, ch. 189, § 2.
It is plain, under these statutes, that the order referred to above is in terms and legal effect a judgment, and, being recorded, is a lien on all the lands of the defendants and those in the hands of purchasers conveyed after the docketing of said judgment.
The court is therefore of opinion that the decree dismissing the plaintiff's bill as to the purchasers, John R. and Henry C. Robertson, is erroneous. And for this cause the said decree must be reversed and the cause remanded.
The court is further of opinion that the said circuit court ought to have referred to one of its commissioners, to ascertain and report, the lands in the hands of John H. Redd, Peter R. Ramey, Overton H. Dillard, and John H. Jamerson, and that said lien shall first be enforced against the lands of the principal debtor, John H. Redd; and if not sufficient to satisfy said lien, then to be apportioned among the sureties in accordance with the principles laid down by this court in Horton & als. v. Bond, 28 Gratt. 815; and for that purpose all proper parties interested in such apportionment shall be brought before said circuit court.
The decree was as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the decree of the said circuit court of Henry county, declaring that the lien asserted by the appellant has no validity and dismissing his bill against the appellees, John R. and Henry C. Robertson, is erroneous. It is, therefore, decreed and ordered that the said decree be reversed and annulled, and that the appellant recover against appellees his costs by him expended in the prosecution of his appeal and writ of supersedeas here. And this court now proceeding to enter such decree as the said circuit court ought to have rendered, it is therefore adjudged, ordered and decreed that the order of the circuit court of Henry county, entered on the chancery side thereof on the 5th day of September, 1859, was in form and legal effect a judgment, and having been regularly docketed on the lien docket in the clerk's office of the county court of Henry, was a lien upon the lands of the said Peter R. Ramey sold and conveyed to the said John R. and Henry C. Robertson after the recordation of said judgment, and that said lands in their hands are liable to said judgment lien, and that the same be enforced against them. It is, therefore, decreed and ordered that this cause be remanded to said circuit court, with instructions to said court to direct an enquiry by one of its commissioners to ascertain and report before proceeding to enforce the lien of said judgment against the lands in the hands of the said John R. and Henry C. Robertson, whether the principal debtor, John H. Redd, was possessed of any real estate on which said judgment was a lien, and also what real estate was in the possession of Peter R. Ramey, Overton R. Dillard, and John H. Jamerson; and upon the report of the commissioner the said circuit court shall proceed to enforce said judgment lien according to the rights of the parties to this suit; and it is further decreed and ordered that John H. Jamerson and the heirs of Overton R. Dillard be made parties to this suit; all of which is ordered to be certified to the said circuit court of Henry county.
DECREE REVERSED.