Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-17
COURT DECISIONS.
DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
vlRcINIAN- PILOT.
Notes of Cases Recently Decided
Which Are Of Interest to
Our People.
KELLY V. HAMBLEN.

KELLY V. HAMBLEN.
Supreme Court of Appeals of Virginia.
July 5, 1900.
A SUIT TO ENFORCE a JUDGMENT
AGAINST ONE PIECE OF LAND
WHICH FAILS. IS NO BAR TO AN
OTHER SUIT TO ENFORCE THE
LIEN OF THE SAME JUDGMENT
AGAINST ANOTHER PIECE OF
LAND.
IF A JUDGMENT CREDITOR RE-
LEASES HIS LIEN AGAINST
LAND. WHOSE VALUE WOULD
SATISFY HIS JUDGMENT. HE
CANNOT PROCEED AGAINST
LAND WHICH WOULD OTHER
WISE BE NEXT LIABLE.
EXCEPTIONS TO AN ANSWER FOR
INSUFFICII;NCY HAVE THE
SAME EFFECT AS ~ DEMURRER
TO ~ BILL.
Hamblen brought this suit in chan
Gerry to enforce the lien of n Judgment
AGAINST tract of land of I<elly's con-
tanning 200 acres. Kelly claimed that
former suit, seeking TO subject other
ldnd 10 the judgment and which had
tailed because the land was in the
hands of innocent aliences, was Il bar
10 inns suit. Also that another suit
brought to subject still other land OF
suilicient value to satisfy the Judgment
had been compromised and dismissed,
and that this suit was n bar TO the
present one. From n decree for Ham
blen Kelly appealed.
The court says:
We shall not enquire nor decide
whether demurrer applies to an an
swcr or plea in Il chancery case. 1t
would seem that il can only he inter-
posed to bill; however this may be.
the appellant made no objection to IL
IN the Circuit Court. has not assigned
1t MS error in this court, and we, there
iore. neither approve nor condemn the
practice, but reserve it for future con-
Sideration.
III is not necessary to enlarge upon
the familiar doctrine of res iudicat; or
TO multiply authorities upon the sub
lcct. we arc of opinion that William
D. Kelly. being in possession of lands
conicsSedly liable to the lien of the
judgments asserted in this cause. can
not escape that liability by vouchinS
the record Of a suit in which no effort
was made 10 subject the land i'm Gucs-
non to those judgments and in which
they could not have been enforced as
ne was not Il party Ia the proceeding.
AS We have said. diligcnt effort v-ns
made In that litigation to ascertain n
subject upon which the lien Of tho
Judgments therein reported could be
enforced. None such was discovered.
the bill was dismissed and we know of
no authority and of no principle which
forbids a judgment creditor under such
circumstances to seek satisfaction out
of property which he afterwards asccr-
tainS TO be liable to his lien
VIC arc of opinion that a suit brought
to enforce the lien of n Judgment and
prosecuted in good faith. though in
eifectual is not ~ bar to n subsequent
suit by the same plaintiff against the
same debtor 10 enforce satisfaction of
he same Judgment. In all such cases
ii Will be the duty of the court to see
That the creditor does not exercise his;
rights capriciouSly or OpprcSSivclv and
make such orders with reference TO
the imposition Of costs as will protect
litiEants against unnecessary and
vexatious suits.
The remaining error assigned is that
the court erred in sustaining the ex-
ccption 10 tho answer of Kelly. From
that answer 1t appears that Logan and
brewer and Kirkpatrick had liens
upon two tracts of land owned by
Kelly Jr.. which were worth moro than
the sum of the judgments sought to
he enforced in this suit. and that Logan
and Brewer. assignorS of Hamblen and
Kirkpatrick, entered into a compromise
win d. j. Kelly. Jr., who agreed to
pay and did pay them one third OF
their demands: whereupon consent
decree was entered reciting the com
promise and Diminishing the bill. This
we think was error. IF the facts stated
in the answer he true, the lands of ].
j. Kelly, Jr. title to which remained
in ]. j. Kelly. ST.. until 1897. should
have been subjected to the lien of the
judgments to the exoneration of the
lands of William j. Kelly. title to
which ]. j. Kelly, ST.. parted with as
far back as 1894.
The answer also AYERS that ]. ].
Kelly. Sr.. was the owner of n tract of
land in Wise county. containing goo
acres. upon which the judgments in
suit constituted liens which should he
subjected TO the exoneration of the
lands in the hands of his alienees.
When plaintiff excerpts to an answer
FOR insufficiency. he plants himself upon
the proposition that. If the averments
of the answer are sustained by proof.
they constitute no defence to the plain
tiT's demand. 1t seems manifest to us
that If the defendant can show that
other property OF the principal debtor
or property of an alienee from the
principal debtor subsequent to himself
is liable 10 the demands sought to be
enforced against him, he should be per-
mitted to do so.
We are of opinion that the Circuit
Court erred in sustaining exceptions 10
the answer of William ]. Kelly, and
for this cause it's decree is reversed.