1880.

April Term.

ANDERSON, J. One of the questions raised by the record in this case, and upon which its decision turns, is, does an office judgment in ejectment, become a final Smithson judgment of the succeeding term of the court, by mere Briggs & operation of law, without the intervention of a court, wife. or a jury? The precise question was decided by this

V.

court in the case of the James River and Kanawha Co. v. Lee, 16 Gratt. 424. That case was analagous to this, and if it differed at all, it was only in one particular, (which will be hereafter noticed), which did not affect this question. The statutes bearing on the subject were thoroughly examined and carefully construed, and the cases reviewed, and the court held "that an office judgment in an action of ejectment does not become final, without the intervention of the court, or a jury." In that case, as in this, the declaration was filed at rules, and a rule given the defendants to plead at the next rule day; at which day the defendants having failed to appear and plead, though duly served with a copy of said rule, (in which respect alone, is there a question of difference between that case and this), their default was entered, and judgment given against them. After the 15th day of the next term of the court, the defendants appeared and moved the court for leave to plead to issue, and set aside the office judgment. But the court being of opinion that the office judgment became final on the 15th day of the term, not having been previously set aside, overruled the motion..

In like manner, in this case, at a subsequent term of the corporation court, after that at which the clerk entered the judgment, as a judgment by operation of law, without the intervention of the court or a jury, the defendant petitioned and moved the court to aliow him to plead and set aside said judgment as invalid, and erroneous, being without the intervention of the court, or a jury. But the court overruled the motion,

and gave judgment for the defendants to the motion for their costs. In that case this court reversed the decision, and remanded the cause to the circuit court.

1880.

April

Term.

V.

wife.

In this case the same ground of error exists for Smithson which the judgment in that case was reversed; and an Briggs & additional ground of error is assigned by the plaintiff in error, that he was not served with notice of the rule to plead, as the statute requires, which if sustained, would of itself be a fatal error in the proceeding to judgment.

The following is the return of the sheriff, which the plaintiff in error contends was not a legal service, to-wit: "G. W. Smithson not being found at his usual place of abode a true copy of the within rule was left with his daughter at his residence, who is over the age of sixteen years, and purport explained to her, this 28th day of August, 1871." In such case the statute authorizes the service of the rule, by delivering a copy thereof in writing to the party in person; or if he be not found at his usual place of abode, by delivering such copy, and giving information of its purport to his wife, or any white person found there who is a member of his family, and above the age of sixteen years."

When the notice has not been served in person, in order to hold the party bound by a constructive notice, I think the return should show that every material requirement of the statute has been strictly complied with. It is material if the copy is delivered to his wife, or any white person, that it should be delivered to such person at his usual place of abode. If it is delivered to the party in person, it may be delivered to him at his home or abroad. But if delivered to his wife or other person, the service will not be good, unless it is delivered at his usual place of abode; and if not delivered to his wife, the person to whom it is delivered must not only be over sixteen years of age,

1880. April Term.

but must be a member of his family. The latter it seems to me, is just as material, and as important as the other. It will not meet the requirement of the Smithson statute to deliver it to a person who may be casually Briggs & at his usual place of abode. Though it may be delivwife. ered there to a daughter who is over sixteen years of

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age. She must not only be over that age, but she must be a member of his family. It does not follow that she is a member of his family, because she is his daughter. She may be a member of another man's family-her husband's. To say that it was delivered to a daughter is not equivalent to saying that it was delivered to one who was a member of his family. As the name of the daughter is not given, it was not in the power of the defendant below to prove that she to whom it was delivered was a married daughter, and was not a member of his family. It should appear from the return that she was a member of his family.

And to say in the return that the party not being found at his usual place of abode, a copy of the rule was delivered to a person at his residence, it seems to me is not tantamount to saying that it was delivered at his usual place of abode. For it is not unusual for a man to have a residence which is not his usual place of abode, at the time of the service of the process. And this is well illustrated by the case of Gadsden v. Johnson, 1 Nott & McCord 89, cited by counsel for plaintiff in error. It seems to me that it would be establishing an unsafe precedent, to hold a party bound by a constructive notice, when it does not appear from the return of the officer, that all the requirements of the statute have been met with greater certainty than it does by this return. But in this view I am overruled by a majority of the court who think it may be presumed that the word residence was used by the officer as synonymous with "his usual place of abode;"

and that it may be presumed that the daughter to whom

the

1880.

April

Term.

сору of the rule was delivered, was a member of the family of the plaintiff in error. But upon the former ground the court is unanimously of opinion, Smithson that the judgment of the hustings court must be Briggs & reversed with costs, and the cause remanded.

The other judges concurred in the opinion of Anderson, J., on the first point, but thought the notice sufficient.

JUDGMENT REVERSED.

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wife.

VOL. XXXIII-24

1880.

April Term.

Richmond.

COLES V. WITHERS & als.

April 15.

In 1852 C sold to M a tract of land for $3,564, for which she took his bond, and reserved a lien on the face of the deed given M, which was duly recorded. Between the sale in 1852 and December, 1855, there were other transactions between C and M, by which the latter became indebted to the former (inclusive of the purchase money for the land) $10,630.50 and for which he executed his bond, with two personal sureties, and the bond for $3,564 was surrendered. M died in 1856, leaving his whole property to his wife L, who was a sister of C. L, the widow, soon married W, and in 1863 W and wife conveyed the land purchased of C, with other lands, to H, made him a deed and put him in possession. On the 19th of October, 1866, the balance due on the $10,630.50 bond was $4,123, for which W, who was then the representative, and had married the widow of M, gave his bond, got possession of the $10,630.50 bond, and confessed a judgment for the $4,123 in favor of C, which he, W, alleges was in lieu of the bond which he got possession of. W soon went into bankruptcy, and but a small portion of the judgment was paid. C denies the statement of W about his possession of the bond, and there is nothing in the record certainly to show affirmatively that she ever intended to release the lien reserved in the deed to M. H denies all knowledge of the reserved lien at the time of the purchase, and until a long time thereafter. There was nothing done by C to induce H to believe that she had waived her lien, or to influence his conduct in any way. On a bill filed by C against H and W and wife, in 1871, to enforce the lien for the purchase money then due on the land sold by C to M and afterwards by W and wife to H. HELD:

1. The question of whether a lien reserved is surrendered is one of intention, on the part of the vendor, under the circumstances of each case; and there being nothing in