Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice

EDWIN W. LYNCH, JR.,
                                                 OPINION BY
v.   Record No. 970278               SENIOR JUSTICE HENRY H. WHITING
                                               January 9, 1998
COMMONWEALTH TRANSPORTATION
COMMISSIONER, ET AL.

               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         F. Bruce Bach, Judge


        The issue in this sequel to a condemnation proceeding

involves a landowner's liability for refund of that amount of the

sum previously deposited with the court by the condemning

authority and withdrawn by the landowner that exceeded the amount

of the subsequent award.
        The Commonwealth Transportation Commissioner (the

Commissioner) planned to take 9.270 acres of a larger tract of

approximately 75 acres owned by Edwin W. Lynch, Jr., in Fairfax

County for the improvement of Interstate Route 95.    The 75 acres

was subject to a deed of trust then held by Dominion National

Bank of Virginia, later by First Union Bank of Virginia, Dominion

Bank's successor in title.    Both banks are referred to herein as

the lienholder.    The deed of trust secured the payment of Lynch's

$3,500,000 obligation to the bank and in pertinent part provided

that:
             Borrower or Grantor shall appear in and prosecute
        any such [condemnation] action or proceeding unless
        otherwise directed by Lender in writing. . . . The
        proceeds of any award, payment or claim for damages
        . . . in connection with any condemnation or other
        taking, whether direct or indirect . . . are hereby
        assigned to and shall be paid to Lender[.]

             . . . Unless Borrower and Lender otherwise agree
        in writing, any application of proceeds to principal
        shall not extend or postpone the due date of the
        [monthly installment payments of principal and
        interest] or change the amount of such installments.


        Because the Commissioner desired immediate possession of the

9.270 acres and his evaluation of the land taken was $1,016,755,

he deposited that sum with the clerk of the circuit court under

the provisions of Code § 33.1-120. 1   The Commissioner also

executed and recorded a certificate of take naming Lynch as the

owner of the property.

        Lynch then took advantage of Code § 33.1-124, which

authorized him to petition the court to order the withdrawal of

these funds.    His petition alleged that he and Dominion Bank were

the only parties entitled to receive the funds and that the bank

had agreed to release its lien on the property taken "through a

Deed of Partial Release."    In a withdrawal order requested by

Lynch, the court ordered the deposited funds to be paid to Lynch

in care of his attorney, who was directed to "use such funds as

are necessary . . . to satisfy the Deeds of Trust . . . currently

owing on the property."    The order also provided that if the

award was less than the deposited funds, judgment for the excess

amount of the deposit shall be entered for the Commissioner

against "any person [who] has been paid any greater sum than that

to which he is entitled as determined by the award."
        Upon demand by the lienholder, Lynch endorsed the clerk's

November 26, 1990, check of $1,016,755, "[p]ay to order of
    1
     Code § 33.1-120 provides in pertinent part that "[t]he
Commissioner shall pay . . . to the clerk . . . such sum as [the
Commissioner] shall estimate to be the fair value of the land
taken . . . before entering upon, or taking possession of, such
land [prior to filing a condemnation proceeding]."
Dominion Bank for credit to account of Edwin W. Lynch, Jr."     The

proceeds of the check were applied by the lienholder in partial

discharge of the obligation secured by its deed of trust.

     In December 1991, the Commissioner filed a condemnation

petition naming Lynch as the only defendant.   Lynch filed an

answer and grounds of defense in which he asserted that the offer

to purchase "was grossly inadequate."

     Following a trial before a condemnation commission, the

commission fixed the value of the land taken at $740,000 with no

damages to the residue.   Over Lynch's objection, the court

confirmed the commission's report and entered judgment against

Lynch for $276,755, the difference between the amount of the

deposit and the amount of the award.    We awarded Lynch an appeal,

reversed the judgment, and remanded the case for a new trial

because of errors in the exclusion of certain evidence.     Lynch v.

Commonwealth Transp. Comm'r, 247 Va. 388, 394, 442 S.E.2d 388,

391 (1994).

     At the new trial, a different condemnation commission fixed

the value of the land taken at $451,000 with no damages to the

residue.   The court confirmed the commissioners' report but

retained jurisdiction to resolve a dispute concerning the

identity of the "person, firm or corporation (if any) which must

refund the excess [of $565,755 representing the amount by which

the deposit exceeded the commissioners' award] and against which

judgment should be entered pursuant to [Code] § 33.1-128."

     At the same time, the court ordered the lienholder to be

joined as a party to the action "for the purpose of determining
[the lienholder's] liability to return excess condemnation

proceeds pursuant to [Code] § 33.1-128."   Following argument and

submission of memoranda, in a written opinion, Judge Richard J.

Jamborsky ruled that since Lynch had withdrawn the amount of the

deposit, he, not the lienholder, became liable to the

Commissioner for the repayment of the excess under the provisions

of Code § 33.1-128.   Later, Judge F. Bruce Bach entered an order

in conformity with Judge Jamborsky's opinion.   Lynch appeals.
     Code § 33.1-128 provides in pertinent part:
          In the event of an award in a condemnation
     proceeding being of a lesser amount than that deposited
     with the court, the Commissioner shall recover the
     amount of such excess and, if any person has been paid
     a greater sum than that to which he is entitled as
     determined by the award, judgment shall be entered for
     the Commissioner against such person for the amount of
     such excess.


(emphasis added).

     Well-settled rules of statutory interpretation guide us in

determining whether Lynch is liable for payment of the excess

deposit.
          If language is clear and unambiguous, there is no
     need for construction by the court; the plain meaning
     and intent of the enactment will be given it. School
     Board of Chesterfield County v. School Board of the
     City of Richmond, 219 Va. 244, 250, 247 S.E.2d 380, 384
     (1978). When an enactment is clear and unequivocal,
     general rules of construction of statutes of doubtful
     meaning do not apply. Id. at 250-51, 247 S.E.2d at
     384. Therefore, when the language of an enactment is
     free from ambiguity, resort to legislative history and
     extrinsic facts is not permitted because we take the
     words as written to determine their meaning.

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).


     Lynch contends that there is no ambiguity in the language of

the quoted portion of Code § 33.1-128 and that the withdrawal
order "tracks" this language.    We agree.   Therefore, under the

principles articulated in Brown, we do not consider Lynch's

extended discussion of (1) whether he "received" the proceeds of

the check, or (2) the differing statutory language governing

eminent domain proceedings which expressly refers to an "owner"

and the statute under consideration which refers to "any person

[who] has been paid."    We simply apply the statute and order as

written and determine whether Lynch "has been paid" the deposit.
        The Commissioner and the lienholder maintain that Lynch was

paid because he received the deposit. 2   Lynch responds that he

has not been "paid" within the meaning of the statute and order

for the following reasons.

        First, Lynch asserts he was not "paid" because in the deed

of trust he assigned the "deposit" to the lienholder.    We will

assume, but not decide, that Lynch is correct in his contention

that the earlier-quoted language of the deed of trust encompassed

an alleged assignment of any deposit as well as any later award

in a condemnation action.    However, Lynch also reasons that this

"assignment operates as a complete divestiture of all rights from

the assignor and vests those rights in the assignee."    We do not

agree.

        The deed of trust provided that Lynch "shall appear in and
    2
      On appeal, the Commissioner contends that the lienholder was
also "paid" within the meaning of the statute. We do not consider
the Commissioner's argument that the lienholder thus became
jointly and severally liable with Lynch to the Commissioner for
the excess deposit. The record does not indicate that this
argument was asserted in the trial court, Rule 5:25, and the
Commissioner did not assign cross-error to the action of the court
in entering judgment solely against Lynch, Rule 5:18.
prosecute any such [condemnation] action or proceeding unless

otherwise directed by Lender in writing."   The lienholder never

directed "otherwise," and, in fact, Lynch did "appear in and

prosecute" the action.   His "prosecution" included his filing a

petition to withdraw the deposit.   Indeed, at Lynch's request the

court ordered the deposit "disburse[d]" to him.   Thus, the

alleged assignment did not divest Lynch of all rights in the

deposit.
     Next, Lynch argues that he was not "paid" any money.     He

reasons that
          [a]lthough the Clerk's check was made payable to
     him, [he] had no power to cash the check and no control
     or discretion as to how to apply the proceeds. It must
     be remembered that pursuant to the Payment Order . . .
     the check was disbursed in care of Lynch's attorney,
     who was ordered to "use such funds as are necessary, if
     any, to satisfy or partially satisfy the Deeds of Trust
     . . . currently owing on the property."


Lynch concludes that because the withdrawal order required his

counsel to use the funds to satisfy the lienholder's deed of

trust, he was "a mere conduit whose only role was to endorse the

check -- the real payee was the [lienholder]."    We disagree.

     If the language of the deed of trust gave Lynch no right to

these proceeds, as he apparently contends, then he need not have

petitioned for an early withdrawal and thus subjected himself to

possible liability for a refund of the excess.    Moreover, if the

lienholder exercised its right under the deed of trust to require

Lynch to petition for such withdrawal, as he contends, then on

his motion, the court could have protected him from liability for

payment of any possible excess.
     Lynch was the payee of the check and the order only required

his attorney to "use such funds as are necessary, if any, to

satisfy or partially satisfy" Lynch's deed of trust.   The

attorney could have negotiated with the lienholder for a

proration of the deposit between Lynch and the lienholder, based

on the value of the property taken in relation to the residue of

the land still covered by the deed of trust.   And, if they could

not agree, under the provisions of Code § 33.1-124, Lynch could

have petitioned the court for a hearing to resolve this issue and

to give him appropriate protection against liability for a return

of any excess deposit ultimately paid by Lynch to the lienholder.
     In pertinent part, Code § 33.1-l24 states that "if the

record in the proceeding discloses any . . . dispute as to the

persons entitled to such distribution [of the deposit] or to any

interest or share therein, the court shall direct such

proceedings as are provided by [Code] § 25-46.28 for the

distribution of awards."   Code § 25-46.28 provides in part that

"[i]f it appears to the court that there exists a controversy

among claimants to the fund . . ., the court shall enter an order

setting a time for hearing the case and determining the rights

and claims of all persons entitled to the fund or to any interest

or share therein."

     These statutory provisions, coupled with Rule 3:9A,

authorized Lynch to petition the court to join the lienholder as

a party and petition the court either to order the check made

payable to the lienholder or make specific provisions for the
lienholder's liability for refund of any excess withdrawal. 3

Lynch filed no such petition; in fact, he simply requested that

the court enter the withdrawal order which imposed liability for

the excess upon anyone to whom the excess was "paid."     And we are

of opinion that under the circumstances of this case, Lynch was

the person who was "paid" within the meaning of the statute and

order.

       For these reasons, we conclude that the trial court

correctly imposed liability upon Lynch for payment of such

excess.    Accordingly, we will affirm the trial court's judgment.
                                                             Affirmed.




   3
       As pertinent, Rule 3:9A provides:
            A person who is subject to service of process may be
       joined as a party in the action if (1) in his absence
       complete relief cannot be accorded among those already
       parties, or (2) he claims an interest relating to the subject
       of the action and is so situated that the disposition of the
       action in his absence may (i) as a practical matter impair or
       impede his ability to protect that interest or (ii) leave any
       of the persons already parties subject to a substantial risk
       of incurring double, multiple, or otherwise inconsistent
       obligations by reason of his claimed interest.
