Smith v. Holland

PRENTis, J.,

delivered the opinion of the court.

William G. Smith, who appears to have been largely indebted to persons from whom he rented lands, and to others who had made advances to him which were secured by crop liens, on June 30, 1916, conveyed the unsevered crops on three farms rented and cultivated by him, to a trustee for the benefit of a number of other creditors. Among those other creditors was the Farmers and Merchants Bank of Cape Charles, Va.

Clarence W. Holland had, on November 10, 1908, recovered a judgment against Smith for $730, with interest, and upon that judgment had issued an execution on June 1,1916, under which there had been a levy upon Smith’s property. Under this state of facts, Holland brought a chancery suit against his debtor, claiming a lien in his favor on the unsevered crops, and the trustee and certain of the other creditors who alleged that their liens were superior to that of Holland also instituted a suit against Holland and the sheriff of Northampton county, praying for an injunction to prevent the levying upon or subjecting any of the *665 severed or unsevered crops. The injunction was refused, but the attorneys for the opposing interests were appointed receivers to take possession of and to market the crops. The two suits were thereafter heard together. The receivers, acting under the decrees of the court, converted the crops into money, and all of the fund has been distributed under the decrees of the court except the residue thereof now here in controversy. That fund is the sum of $569.96, which represents the dividend assigned to and which but for this litigation would have been paid upon the debt of the bank. Holland claimed a lien under his execution superior to the lien of the bank under the deed of trust, because he alleged that the bank had notice of his execution. He sustained this claim and showed that the bank had been served with garnishee process on the 24th day of June, 1916, which was prior to the date of the deed of trust, June 30, 1916, under which the bank claimed. The court, therefore, on November 21, 1917, decreed that this amount, which would otherwise have been paid to the bank, should be paid to Holland, the execution creditor. The same decree directs the payment of all of the costs of the suit, and disposes of the entire fund in the hands of the receivers. After this, on the 14th day of December, 1917, Smith filed a homestead deed, claiming the amount so decreed to be paid to Holland as 'a part of his homestead exemption, and thereafter, at a subsequent term of court, on March 22, 1918, filed his petition in the chancery causes referred to, praying that it be paid over to him as a part of his homestead. The court, over the objection of Holland, permitted the filing of this petition, but refused to grant its prayer, and dismissed it. Of this ruling Smith is here complaining.

[1, 2] In the view which we take of the case, the question presented is single and narrow. The statute, section 3642, permits a householder to set apart his homestead “at any time before the same is subjected by sale or otherwise under *666 judgment, decree, order, execution or other legal process.” So that we have only to determine whether the fund here involved had been “subjected” within the true intent and meaning of that statute before the execution of the homestead deed. As to this we have no doubt. The litigation had been pending for some time and Smith was a party to it. While he had waived his homestead exemption as to the debt of the bank and had not waived it as to Holland’s debt, at the same time he knew of the controversy and must be deemed to have known that the question might be decided in Holland’s' favor. When it was thus decided, he doubtless then could have claimed the fund as a part of his homestead at any time before.that decree became final—that is, before the adjournment of that term of court. Having failed to exercise this privilege, he is concluded by that decree, not only because the fund had been subjected thereby, but because it was a final decree settling every controversy which had arisen in the cause. The effect of a final decree .is not only to conclude the parties as to every question actually raised and decided, but as to every claim which properly belonged to the subject of litigation and which the parties, by the exercise of reasonable diligence, might have raised at the time. Diamond State Iron Co. v. Rarig, 93 Va. 595 , 25 S. E. 894 ; Miller v. Smith, 109 Va. 651 , 64 S. E. 956 .

[3] No further action of the court in this cause was necessary. If any further action had been necessary, it would not be in the cause but beyond it—that is, in order to enforce the decree. The necessity for such further action does hot prevent the decree from being final. Rawlings v. Rawlings, 75 Va. 76 ; Jones v. Buckingham State Co., 116 Va. 120 , 81 S. E. 28 . We are, therefore, of opinion that the question has been correctly determined.

Affirmed.