Burton v. Willin

11 Del. 522

Opinion

Comegys, C. J.,

delivered the opinion of the court.

The chief question in this case, as shown by the arguments of the solicitors on both sides, is this : Is the account of the complainant for necessaries supplied Virginia C. Truitt during her minority a proper subject of set-off in this court against the suit in the Superior Court of Sussex County of the respondent upon the recognizance of the complainant in the Orphans’ Court of said county entered into by him as assignee of one of the tracts of land of his intestate mother, Polly Vessels? Payment it is not; for nothing is to be considered as such, and to be allowable under the plea of payment, but money or some valuable thing agreed by the creditor and debtor to be accepted as payment. In this case, then, the complainant’s claim is a proper subject of set-off here, or this court will take no recognizance of it.

And here it is proper to observe that no objection was made in the several arguments before us, that the account of the complainant was not for actual necessities for the respondent, Virginia C. Truitt, during her minority • in fact, it seemed to be conceded that the account itself was not wrong. It would have been difficult to contend to the contrary, in view of the testimony of Mr. Charles M. Cullen as to what the respondent, Truitt, told him his wife had said in respect to the whole of it except a few small items; of that of Daniel Burton as to what was said about it at the interview between the complainant and Truitt and wife at the house of John P. Burton on the of November, 1870; and the nature of the testimony of Mrs. Sophia Burton in relation to the same subject. There was, evidently, no dispute about the account, generally, at the interview, nor any disposition afterwards to gainsay it. It was treated as a correct account, except a few small items, and all the items have been proved but those representing articles furnished by the complainant's wife, amounting to about fifty dollars. The admissions and proofs together establish the account except as just mentioned, and thus it was, no doubt, that objection was not made in the argument to the account as such. We may, therefore, treat the claim of the complainant, minus the articles supplied by his wife and not proved, as right in itself.

Notwithstanding this, it is insisted, and the force of the argument of the counsel for the respondents seems to be directed chiefly to that point, that there is no ground for relief in equity, because adequate remedy could have been had at law by plea of payment to the sai. fa. for Willin’s use (if Willin were affected by the complainant's claim), or by plea of set-off and proof under it. It is true this defence is not made in the answers or by plea, and, strictly, it was too late to insist upon it in the argument; but assuming that it was not, there is obvious answer to it. I have already stated that nothing is pleadable as payment but money or something agreed to be accepted in lieu of it. This is all that can be shown under such a plea. No subject of set-off can be treated as in any sense payment, else the statutes of set-off were unnecessary; and this is an answer to the suggestion in one of the authorities cited, and upon which much was rested in this case—that set-off is a form of payment. So much for that position. With respect to the other, it is sufficient to say that set-off is not a good plea to a seirefaeias upon a recognizance in the orphans’ court or elsewhere. If the action of debt were brought on a recognizance like this, set-off might be a proper defence, as in any other action of debt, and no objection could be made that the debts were not due in the same right; for although a suit on the recognizance would be in the name of the State for the use, etc., yet the interest of the cestui que use is a creature of law, and is therefore a legal claim. But to a scire facias on a recognizance in the orphans’ court the plea is no more proper than to a scire facias on a judgment, where, prior to the statute of 4th Anne, chap. 16, § 12 (which is in force in this State), even payment could not be pleaded. The statute of set-off does not apply to cases commenced by scire facias. Nul tiel record, payment (since the stat. of Anne) and release are good pleas, but not set-off, which applies to cases where the debt yet remains to be proved and judgment recovered. Where judgment has already been recovered, as in the ordinary cases by confession, by virtue of warranty, of attorney or otherwise, or by suits on open claims, or where a recognizance for the benefit of individuals (as recognizances in the orphans’ court) has been entered into, set-off cannot be pleaded at law, by reason of the very nature of the proceeding, which is to have execution; but relief must be had in a court of equity, where the technicalities and forms of the common law do not obtain. The writ of scire facias, though in a certain sense an action, because it may be pleaded to, yet is not the kind of action meant in the statutes of set-off in England or in this State. The mutual debts “ due at the time of action brought ” are not debts arising after judgment recovered on recognizance entered into. So one, surely, would contend that set-off would be a good plea to a sci. fa. on an orphans’ court recognizance. Relief must, therefore, be had in a court of equity to get the benefit of deduction of a counter-claim. Judgment should have been recovered on it before judgment on the sci. fa. In that event the plaintiff in the former might apply to the equity side of the court, where judgment was afterwards rendered on the sci. fa., to set one off against the other. Morris v. Hollis, 2 Harr., 4.

Having determined that the claim of the complainant was not an available defence at law as payment, and could not be set-off in the suit upon the recognizance, the question is, can the Court of Chancery give him relief by way of set-off, or allowance, of such claim, against the suit on the sci. fa. ?

The chancellor ad litem in the reasons for his decree dissolving the injunction, while not controverting the fact that the account of the complainant was for, what in law are, necessaries; yet seems to think that, supposing he had relief in his court because of want of power to give it elsewhere, yet before he could claim it he should have established his account by a judgment at law. This would, unquestionably, be a sound view of the case, if there were in fact any serious dispute about the account; but I have pointed out, by referring to the testimony of Messrs. Cullen and Burton, and by that of Mrs. Burton, that there was no ground for any; and so the respondent’s counsel evidently thought, for they made no point in this court that the account was not just, and did not contend that any charges were unproved, except those aggregating about fifty dollars for articles supplied by the respondent’s wife. Leaving them out, there is more than enough left to counterbalance the claim under the recognizance at the time it was assigned to the respondent Willin. There was no necessity, therefore, to establish the account at law. And the facts of this case show that whatever admissions of the correctness of the account were made by the respondents, Truitt and wife, were not drawn from them in undue haste, or by any misrepresentation, or concealment. Mrs. Truitt was married on the 9th of August, 1870, and came of age on the following 19th of the same month. Not till about three months afterwards did the complainant make any move whatever to have a settlement of his account and then it was with the husband as well as the wife, and at the house of her aunt who was no relative of him, but is a witness against him. In the meantime there was ample opportunity if Truitt had availed himself of it, to inquire into the condition of the estate of his wife’s father, and the propriety and correctness of the charges for the necessaries supplied his wife. It would seem therefore that there was no attempt on the part of the complainant to entrap the respondents, Truitt and wife, into a settlement before they had time to look about them and prepare for it. In fact the point is not made directly in the pleadings, evidence, or arguments that the respondents were deceived by the complainant, but the most imputed is, that he, knowing all about the estate ought to have informed them of it, before he undertook to get them to agree to his account, and that it should be set-off against or deducted from the recognizance. But this is insisted on simply as a reason why they should not be bound by an agreement to allow and deduct; and not that their admission of the correctness of the account, so far as it went, should not be held binding. The point insisted on seems to be, that he should have paid himself out of the assets of his brother’s estate, he being executor of it, and not be permitted to deduct it from the recognizance. This calls forth an important fact admitted in the argument here, and sustained by the list of exhibits filed by the complainant in the court below, that in an amicable action between Truitt and wife and the complainant in the Superior Court of Sussex County entered on the 9th of August, 1871, there was a reference of everything connected with the settlement by the complainant of the estate of his deceased brother, the father of Mrs. Truitt, the partnership affairs of the firm or partnership between the brothers being taken into consideration by consent, by three of the best qualified men in the county, of large experience and excellent judgment, who found that the estate was indebted to the complainant in the sum of nine hundred and twenty-four dollars and seventy cents for over-payment by him beyond all the assets that came to his hands, including the proceeds of the sale of the real estate of his said brother, and in the further sum of one hundred and forty-three dollars and eleven cents for commissions (not before allowed him) on a testamentary account of the estate of said deceased. Their report was made to the April Term, 1874, of said Superior Court. If the estate of the deceased brother was a debtor to the complainant for payment of debts, etc., against it to the amount found by the referees (and the fact is not denied) and he was also entitled to the said sum of one hundred and forty-three dollars and eleven cents, then there was nothing out of which he could reimburse himself for the necessaries supplied his niece. Unless, therefore, he can have relief by way of set-off, or otherwise, against his recognizance now in the hands of the respondent, Willin, he will be without any means of repayment, the respondents, Truitt and wife, residing out of the State and having no property here.

It was a point made in the argument in this court, and much stress was laid upon that view in the chancellor’s opinion, that the claim of the complainant is not such an equity as will justify the Court of Chancery in treating it as a set-off to the recognizance, and the opinion of Judge Story, sitting in the Circuit Court of the United States for the First Circuit, in the case of Grim v. Darling, 5 Mason, 201, is cited in support of that view. According to that distinguished judge, to warrant a set-off* there must be mutual credits as well as debts; that is, there must not only be indebtedness one to the other, but some sort of understanding between the parties that one claim shall be deducted from the other; in other words, each gives credit to the other, because of his indebtedness to that other. This seems to restrict the privilege of set-off within very narrow limits ; and if it could be made to apply to this particular case, it would place the complainant in a very unfortunate situation; for the pecuniary condition of the respondent, Truitt, was such, at the time of the assignment to Willin, that there was no prospect of getting anything out of him by execution. We have the testimony of Mr. Cullen that the respondent, Willin, in a conversation with him on the day he took the assignment from Truitt, told him that he was about to take it, and that he could “ secure his debt in that way.” From this language the inference seems warranted that it was the only way in which he could do it, and it certainly is a fact in the case that at that time Truitt was under execution, and there were suits pending against him. It was very prudent so far, then, for Willin to take the assignment. Now, if the complainant could not be allowed his set-off* or deduction from the recognizance, he would be without any available remedy whatever. But if it should be recognized as law in this State that to make set-off valid there should be some understanding of mutual credit, or, as Judge Story calls it, “ stoppage pro tanto” it is very plain none could have been had in this case; for the respondent, Virginia Truitt, was a minor during the whole time up to her intermarriage, and could make no agreement nor have any understanding whatever with the complainant about credit or stoppage. She could bind herself for necessaries, but not further. Her power was the naked one of incurring liability for them, but nothing beyond. Clearly, then, the complainant will be utterly without relief unless he can get it in equity by way of set-off. But independent of this view, which is, however, sufficient, our statute of set-off only speaks of mutual debts, omitting entirely the word credits, which was of so much importance, in the view of Lord Mansfield, in the case of French, Assignee, v. Fenn, 3 Doug., 257, a bankruptcy case, where the set-off was allowed against the assignee. Here there were mutual debts; that is, the complainant owed the wife of the assignor her share of his recognizance, and she owed him for necessaries furnished her during her minority. He had no power to set off the debt he owed her, because a scire facias was issued to collect it by the assignee, nor could he plead it as payment, because, as I have shown, payment it was not; and there was, in fact, no plea under which he could avail himself of it. His claim, not growing out of hers, but being entirely independent of it, set-off is the only way of deducting it from it, and as that cannot be done at law in a scire facias on the recognizance, it must be a subject of equitable relief, like other rights, remediless at law. That it would be a proper subject of set-off against a claim under a recognizance, is shown by the case of The State, for the use of Cannon, v. Cannon’s Admx., 1 Harr., 324, where, in a suit against a surety to recover a distributive balance of an intestate estate, the superior court in this State allowed proof to be made of necessaries furnished the plaintiff in his minority by his mother, who was the administratrix. This case establishes, that where a minor is supplied with necessaries, they may be deducted, even by a surety of the administratrix who supplied them, from the amount claimed in debt on her bond for a distributive balance; from which it follows that if the suit had been against her, instead of her surety, a set-off might have been pleaded, mutuality existing and the action being debt. In this case, then, it is the form of proceeding—sci. fa., and not debt—that would prevent the complainant from pleading his set-off, though it exists all the same. Now, it is the plainest law, that where a party has a just defence to a suit, but is prevented or obstructed by some technicality or mere form from setting it up, a court of equity, which is no respecter of forms and does not notice technicalities, will arrest the career of the plaintiff at law till he allows the set-off, if it be of that nature, and altogether if it exceed his cause of action.

But it is contended that were it true that if Truitt and wife had proceeded, on the recognizance, the complainant might set-off in equity his account for necessaries against their claim, yet here is the case of a bona fide assignee, and such course cannot be taken with respect to him. Two grounds are taken for this view: first, that there is no equity here, because the complainant’s claim is an independent one, and does not grow out of the transaction of the recognizance; second, that Willin is not, upon the evidence, to be charged with notice of the equity, if such existed. With respect to the first ground, we have to observe that, there being no relief at law for the complainant against this claim because of technicality, his right of set-off, which can only be enforced in equity, would be entirely defeated if such view should prevail. The equity of set-off, valid at law but unenforceable for want of right to plead it in the sci. fa., would be denied him, although the statutes of set-off are as operative in a court of equity as at law, where the former finds occasion to exercise its power with respect to them. Here, then, is an all-sufficient equity existing between the original parties, and the assignee of the right of the meritorious party is affected by it.

As to the second ground, it is sufficient to say, that there is no law of this State that clothes the party entitled to a share or the whole of a recognizance with the right to assign it away, so as to defeat any legal or equitable defence against it, to which the recognizor is entitled. Such a chose stands, in no sense, upon the same footing, as maturing commercial paper; but the assignee, takes it subject to all equities, and defences to which it was subject in the hands of the assignor. In other words he takes it the same as the assignor held it, and for no better title or interest; and it being non-assignable, legally speaking, the duty devolves upon him to inquire of the recognizor, like the assignee of a bond of the obligor, if he wishes to be certain of what he is buying, whether there are existing any claims of payment, or off-set, or if there is any other defence against it. In the case of Robinson v. Jefferson’s Admr., before Chancellor Ridgely in Sussex in 1823, he said, speaking of certain single bills which were the subject of the suit before him: “It should be remarked that these bills are not assigned according to the form of the act of assembly. The assignments are therefore, equitable only ■ and the bills are liable in the hands of the assignee to all the equities to which they are liable in the hands of the obligee. But even if they had been assigned according to the act of assembly, the assignee would have taken them subject to the same objections which might have been made against them by the obligor in the hands of the obligee. This is the well-known and established law, and the assignee before he takes the assignment of a specialty ought to inquire whether it be liable to any plea, discount, or impeachment whatever.” Decree affirmed on appeal June Term, 1827. 1 Del. Chy., 245.

With respect to what was said in the argument about the complainant not having been appointed guardian of his niece, it is sufficient to remark that he was under no legal obligation to take upon himself that office. If he had taken it, however, the well-known and enlightened liberality of the Orphans’ Court in this ' State is assurance that, in the case of a ward like "Virginia C. Burton, belonging to a family of high respectability in the county of Sussex, and being designed, as was said, for a teacher, the judges of that court in that county would have allowed the guardian to expend for her support and education all that was necessary for that purpose, and to quite the extent that was done by the complainant.

In case where a minor has no guardian, and some one supplies necessaries, the question between them would be—were the articles sold and delivered, board furnished, education provided, medical attendance supplied, necessary for one in the circumstances of the minor as to rank in life, fortune, etc.; if they were, the fact that they exceeded the minor’s income received by the party supplying them would be of but little moment. Though a legal guardian may not exceed income without authority of the Orphans’ Court—there being a tribunal to which he can apply for such power and which can grant it, and the statute prohibiting him from so doing without resorting to it—yet, where there is no guardian, a person, quasi such, may do it in the minor’s interest—running the risk of the verdict of a jury, under instruction of the court what necessaries are, that his supplies were not necessaries in law, and were excessive in quantity and expensiveness.

It is therefore, ordered, adjudged and decreed that the decree of the chancellor ad litem be reversed; that the injunction granted in the case below be made perpetual, and that the respondents pay the costs in this court and in the court below in three months or that attachment issue.