Lightfoot's Adm'r v. Green's Ex'or

22 S.E. 242, 91 Va. 509, 1895 Va. LEXIS 46
CourtSupreme Court of Virginia
DecidedJune 13, 1895
StatusPublished
Cited by4 cases

This text of 22 S.E. 242 (Lightfoot's Adm'r v. Green's Ex'or) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lightfoot's Adm'r v. Green's Ex'or, 22 S.E. 242, 91 Va. 509, 1895 Va. LEXIS 46 (Va. 1895).

Opinion

Cardwell, J.,

delivered the opinion of the court.

[510]*510Edward Lightfoot held a debt against the estate of F. F. Henry, deceased, which debt on the 16th day of July, 1875, amounted to the sum of $1,101, and foi the accommodation of James W. Green, executor of F. F. Henry, deceased, took in settlement of his claim an assignment of a bond of Bettie M. Wevv to Green, dated the 21st day of October, 1872, for the sum of $900, with interest from the date thereof at 8 per cent, per crnnvmi until paid, and payable one year after its date.

This bond was secured, as stated in the assignment, by a lien on real estate and otherwise; the lien on the real estate consisting of a vendor’s lien reserved, and a deed of trust on a house and lot in the town of Culpeper, conveyed by James W. Green to Bettie M. Wevv’s trustee, and the other security spoken of appears to have been an assignment of Bettie M. Wevv’s interest in some property or estate in the county of Fauquier, and the assignment referred to is in the following words, to-wit:

“For value received, I assign to Edward Lightfoot the bond of Bettie M. Wevv to myself, dated 2nd day of October, 1872, for nine hundred dollars ($900) payable one year after date, with interest from date until paid at the rate of eight per centum per cmnumi, which bond is secured by a lien on real estate, and otherwise; and I agree to continue bound as assignor of said bond, to said Lightfoot, without his taking any steps to enforce the payment thereof; he leaving the said bond in my possession for collection in such manner as I think proper, and I agreeing to collect the same without fee, commission, or other charge, and to account to him for the whole amount of said bond; said Lightfoot, through John Lightfoot, having accepted of said assignment for my accommodation, in payment of his debts against the estate of F. F. Henry, deceased, of which I am the executor.

• James W. Green.”

[511]*511Edward Lightfoot died about June, 1882, leaving a will appointing John T. Lightfoot, his son, his executor, and his wife, Ann Y. Lightfoot, his executrix, but John T. Lightfoot alone qualified undei the appointment.

James W. Green died April 1, 1884, leaving a will appointing his wife, Ann S. Green, his executrix, and who duly qualified as such.

After the death of Gieen, and in February, 1889, James L. Kemper, who had qualified as administrator d. b. n. o. t. a. of Edward Lightfoot, deceased, in the place and stead of John T. Lightfoot, who had been permitted to resign as executor, filed his bill of complaint on behalf of himself and all other creditors of James W. Green, deceased, in the Circuit Court of the county of Culpeper, seeking to recover of Green’s estate, the amount due on the Bettie It. JVevv bond, assigned by Green to Edward Lightfoot, the assignment having been found by Gen. Kemper among Lightfoot’s papers; but before the hearing of this suit Gen. Kemper was permitted to resign his office as administrator d. b. n. o. t. a. of Edward Light-foot, deceased, on account of ill health, and B. P. Lake quali- • fied as such, in his place and stead, and filed an amended and supplemental bill in the cause. Ann S. Green (in her own right, and as executor of James W. Green, deceased), Bettie M. "Wevv, George D. Gray, trustee for Bette 1L Yew, and other necessary parties were made parties defendants to both the original and amended bill; and Ann S. Green, in her own right and as executrix, demurred to and answered both the original and amended bill, and filed her special plea of the statute of limitations, in which demurrer the plaintiff joined, and replied generally to the answer of Green’s executrix, and to her special plea. And the cause coming on to be heard upon these pleadings, together with the evidence for both plaintiff and defendant, the Circuit Court of Culpeper by its decree entered at the September term, 1891, dismissed both [512]*512the original and amended bill, with costs to the defendant Ann S. Green, in her own right and as executrix. From this decree an appeal was allowed E. P. Lake, administrator d. b. n. g. t. a. of Edward Lightfoot, deceased, to this court.

The defences relied on by the .personal representatives of James W. Green, deceased, are the statute of limitations, laches, and payment. We come first to consider the plea of the statute of limitations. It will-be observed that by the terms of the assignment of the Wevv bond by Green to Edward Lightfoot in payment of the debt held by Lightfoot against the estate of F. F. Henry, deceased, Green agreed to remain bound to Lightfoot, without Lightfoot’s taking any steps to enforce the payment of the bond, and to collect this bond without fee, commission, or other charge, and to account to Lightfoot for the whole amount of the bond, giving as a reason for continuing to be so bound to Lightfoot, as assignor, that Lightfoot had accepted the assignment for his (Green’s) accommodation, in payment of Lightfoot’s debt against the estate of F. F. Henry, deceased, of which Green was the executor; and it would therefore seem clear, from the nature of this obligation and undertaking, that the statute of limitations could not run against Lightfoot, or his personal representative, so long as the Wevv bond was not barred by the statute, and Green lived, and was capable of performing the duties assumed by him under the assignment. Assuming then, that the statute of limitations began to run in favor of Green’s estate from the date of his death, and treating the assignment as an agreement not under seal, this suit having been instituted in February, 1889, five years, the statutory limit to the right of action on such an agreement, had not elapsed. It is contended, however, that the house and lot upoi). which the Wevv bond was secured, situated in the town of Culpeper, having been sold under the trust deed in August, 1881, and purchased by Green, and the purchase money, $600, paid by [513]*513applying the same in part satisfaction of the Wevv bond, the statute of limitations began to run in favor of Green to the extent, at least, of the $600, as of that date.

While it does not appear in this record that Edward Lightfo'ot, who was then in the 82nd year of his age, and who was confined to his house in the county of Madison, twelve miles from Culpeper courthouse, knew anything of the sale of the house and lot and its purchase by Green, we do not deem ii necessary 1o express an opinion as io whether or not the statute will begin to run in favor of an attorney collecting money for his client until the latter is in the.possession of knowledge of the collection, or might have acquired such knowledge, for the reason that when Green assigned the Wevv bond to Lightfoot, the assignment carried with it the vendor’s lien and trust deed on the house and lot securing the bond, and when Green purchased the property at the sale in August, 1881, with Light-foot’s money, he assumed tie relation to his client of trustee, and held the property for Lghtfoot’s benefit, and continued bound to him, under the assignment, for the whole amount of the Wevv bond, as though the sale had not taken place; and the purchase of the piopeity, the deed being to himself, could not, under the circumstances, be considered as a collection by Green as Lightfoot’s attorney.

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Bluebook (online)
22 S.E. 242, 91 Va. 509, 1895 Va. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lightfoots-admr-v-greens-exor-va-1895.