Conwill v. Livingston

61 Miss. 641

Opinion

Chalmers, J.,

delivered the opinion of the court.

This is an attempt sixteen years after the death of an administrator to make his estate liable for failing to enroll a judgment in the proper county, whereby it is claimed that another creditor obtained precedence over him. .Neither judgment was obtained in the county of defendant’s residence at the time of sale, nor did the property lie there, though it is admitted that shortly after the formation of the new county into which the defendant was legislated an act was passed whereby both judgments might have been enrolled there. At the date of the rendition of the judgment the defendant had no property anywhere, having before that time conveyed to another all that he had subject to levy.

Some years after the date of the judgments, which were rendered on the same day, the lawyer, in Buckley’s judgment, received a hint that the conveyance made by the judgment defendant was fraudulent. He thereupon had his judgment enrolled, filed a bill to vacate the conveyance, and, having sold the land, ultimately obtained his money. The claim here is that if the administrator had first enrolled his judgment he would have obtained his money. This claim rests upon the assumption that an administrator must enroll his judgment in a county where at the time the defendant owns no property, because by so doing and then filing his bill he may finally subject secreted property to his judgment. Ultimately, therefore, the contention is that an administrator is liable wherever by filing a bill he can reach assets which have been fraudulently conveyed after the debt and before judgment.

We deny the proposition. An administrator is nothing but a trustee bound for the care and caution of an ordinarily watchful man, and nothing more. Where by inattention or sloth he loses a debt he is liable, unless this be shown he is not. It is not shown in this case that he knew or had reason to believe that anything could be made by filing a bill. He was under no obligation to do so until something occurred to excite his suspicion. Nothing of that sort is here shown. An attorney or agent who obtains a claim for collection and who has nothing to put him on inquiry certainly is not bound to file a bill to vacate fraudulent conveyances, and clearly is not bound to enroll a judgment in counties where the defendant owns nothing, as shown by the records, or in the case of personal property where there is no possession. Though other persons knew of the fraudulent conveyance in this case it is not shown that the administrator knew it or ought to have known it. Such showing was essential to the maintenance of the exceptions in this case.

The administrator, having promptly reduced the claim to judgment and having had repeated returns of nulla bona on the fi. fas. issued, had the right to treat the claim as worthless in the absence of anything to show that he had notice or'suspicion of the fraudulent conveyance before his judgment.

The exact point has not been decided here or elsewhere, so far as we are advised, but such seem to be the analogies of the law. Berry v. Parhs, 3 S. & M. 625; Baily v. Dilworth, 10 S. & M. 404 ; Smith v. Hurd, 8 S. & M. 682.

Let the decree be reversed, exceptions be overruled, and petition remanded.