Grimmet v. Henderson's Adm'r

66 Ala. 521

• Court: Supreme Court of Alabama
• Decided: December 15, 1880
• Status: Published

Opinion

SOMERYILLE, J.

The demurrer interposed to the complaint in this case is not well taken, and was properly overruled. The first and second grounds are not assigned with that certainty and particularity required-by the' statute. To say that “ the complaint does not show any ground or cause of action against the defendant,” is insufficient, as being too general, and not distinctly stated. — Code 1876, §3005; Williams v. Bowdin, at the present term.

The complaint is sufficient to show a prima facie liability on the part of the sureties, Campbell and Dryer, who are alleged to be co-obligors with the executors in the bond on which suit is brought. It avers the due execution of the bond by all the defendants, the subsequent recovery by the plaintiff of a judgment against the principals in their capacity as executors, the issue of an execution de bonis intestatis on said judgment, followed by a return of “no property found” by the sheriff of the county. It also avers, that the judgment is unreversed and unsatisfied, and that the executors “ did not truly administer said estate, but failed to pay said judgment, [and] that they received assets of said estate sufficient to pay the same, and have wasted and converted said assets of said estate ;” which is a sufficent averment of a devastavit by the principal in the bond.—Kyle v. Mays, 22 Ala. 692.

The bond is binding on the obligors, if properly signed by them, although their names do not appear in the body of the instrument.—Martin v. Dortch, 1 Stew., 429; Hatch v. Crawford, 2 Port. 54; Brandt on Suretyship, § 15. The fourth ground of demurrer assumed the law to be otherwise.

The fifth ground avers a fact not appearing on the face of the complaint, and is rather in the nature of a plea than a demurrer. It is not shown in the complaint that “ the executors qualified and entered upon the duties of [their] executorship more than twelve months before the execution of said bond.”

The pleas of the statute of non-claim and of plene administravit (if the latter be^ at all permissible under our present system of pleading), come too late after the rendition of judgment against the executors, who are principals in the bond upon which this action is based. The judgment against the principals was a legal ascertainment of assets in their hands sufficient to satisfy the claim of the plaintiff. The execution de bonis intestatis, awarded against the executors, followed by a return of “No property found,” was conclusive of a devastavit, not only against the defendants in the judgment, but also ag&inst the sureties on the bond, by reason of the priority created by their joint execution of, and liability on it. The executors should have prevented the rendition of the judgment against them, by interposing such defenses by plea as the facts of the case authorized. Their neglect to .do so, in the first suit, is conclusive, on both themselves and the sureties in this action. The sureties have, by the execution of the bond, assumed the office of guarantors for the faithful performance of the executorial duties of their principals. This includes the duty to pay on demand all debts ascertained judicially to be due by tbe principals in their capacity as executors, provided the estate is not declared to be insolvent. The failure to pay such judgment is a breach of the bond, and the sureties, as well as. the principals, are estopped from asserting anything to the contrary.—Grace v. Martin, 47 Ala. 135; Hailey v. Chapman, at the present term; Brandt on Suretyship, § § 496, 532; Holley v. Acre, 23 Ala. 603; Kyle v. Mays, 22 Ala. 692; Heard v. Lodge, 20 Pick. 53; Governor v. Shelby, 2 Blackf. (Ind.) 26; Code, 1876, §§ 2616, 2620.

We find no error in the record, and the judgment of the Circuit Court is affirmed.