Henry v. Mills

69 Tenn. 144

• Court: Tennessee Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinions

Cooper, J.,

delivered the opinion of the court.

John Mills died in January, 1864, and complainant became the administrator of his estate early in 1866. On- the 8th of March, 1875, he filed the original bill in this cause against the heirs of his intestate, stating, in the fewest possible words, that the personal assets which came to his hands amounted' to $238; that the liabilities of the estate were something-over $3,500; that the testator died seized of certain realty mentioned; that the estate is insolvent, and asking that the estate be administered in this court, the- land sold, and the proceeds applied pro rata to the payment of debts. The heirs demurred; one ground of demurrer being that the creditors should have been made parties. The bill was, thereupon, amended by .making certain persons, alleged to be creditors, parties defendant, and specifying the amounts of their respective claims. No explanation is given of these claims, except that it is stated '“there were large and heavy suits pending against your orator, as the administrator of John Mills, in the Chancery Court at Rogersville, which have been recently decided/’ and the decrees in which constitute the larger amount of the indebtedness shown. The heirs again demurred; but the demurrer was overruled. The heirs then answered. They rely, as a defense to the claims of all creditors who have not sued thereon, upon the limitation of two' years under the Code, sec. 2279; and, as to the claims reduced to judgment, upon the limitation of seven years under the Code, secs. 2281, 2786. They also insist that by the descent cast, and possession by them of the realty descended for more than seven years, they were protected by the general statute of limitation to actions for the recovery of real property. Code, sec. 2763. They further insist that the complainant, as administrator, cannot maintain a bill to reach realty descended, for the satisfaction of judgments recovered against him as administrator, without showing that he interposed the defense of fully administered, no assets, or not sufficient assets, and that the defense was found to be true. It was afterwards agreed, as a matter of evidence, that no such defenses were set up in any of the suits in which judgments were recovered. The record shows, by a report of the master, that the personal assets which came to the complainant’s hands amounted to $242.50, and that he had disbursed $189; that one judgment remained unpaid which had been recovered against him on the 10th of June, 1867, and another recovered on the 21st of January, 1868; and that the remaining judgments were rendered by a decree of this court, upon a transcript from the Chancery Court at Rogersville, on the 27th of October, 1874, the whole amounting to $6904.15. The Chancellor granted the relief sought, and the heirs have brough the case up by writ of error.

The causes of demurrer, it is conceded, were all obviated by the amended bill except one. That cause was that jurisdiction belonged, in the present instance, exclusively to the County Court, the value of the personal estate not exceeding $1,000. The Code, sec. 2327, does confer on the County Court exclusive jurisdiction of the administration of all insolvent estates, the value of which does not exceed $1,000, and its language was construed to mean the value of the personalty which properly devolved upon the administrator to he administered. Fleming v. Taliaferro, 4 Heis., 355. But the act of December 16, 1871, ch. 106, gives the Chancery Court jurisdiction of insolvent estates “where the value of the estate, including both the real and personal property, amounts to $1,000.” It may be doubted, moreover, whether the section of the Code relied on applies except when the insolvency of the estate has been formally suggested to the County Court, which does not seem to have been done in this instance, the bill being filed under the Code, sec. 2267, et seq., a re-enactment of the act of 1827, ch. 54.

The only claims allowed by the master in the court below were those reduced to judgments. One objection made to these claims is that the defense' of fully administered was not put in by the administrator in the suits in which the judgments were recovered, and that the realty descended cannot be subjected without a finding in favor of the administrator upon such an issue. This is, undoubtedly, the law upon' a direct proceeding h}*- the creditor to reach the realty by a scire facias upon the judgment recovered against the administrator, for so the statute of 1784, ch. 11, re-enacted in the Code, sec. 2258, et seq., expressly requires. The reason was, that the personal assets must be exhausted, as the primary fund for the payment of the ancestor’s debts, before the land could be subjected, and the only mode under that statute of ascertaining the fact was by a direct issue made for the purpose. The same reason, obviously, does not apply to a proceeding under the Code, sec. 2267, in the nature of a suit in equity, which requires an account of the personal assets to be taken before the rendition of any decree against the realty. It is also important to bear in mind the fact that, there is a difference between the rights of creditors, and those of the heir, in the matter of insolvent proceedings by the administrator, as well as in the result of the failux-e to put in proper pleas in the suit in which judgment is recovered by the administrator.

Thus, for example, if the two creditors, mentioned in the master’s report, whose judgments were recovered in 1867 and 1868, were objecting to this bill, the result of which may be to deprive them of any remedy against the administrator personally, it would be difficult, so far as they are concerned, to take this case out of the rulings of this court in Hamilton v. Newman, 10 Hum., 557; and Daniel v. Lowe, 7 Heis., 361. The complainant must have known the situation of the estate yeai-s ago, and yet offers no excuse for the delay in filing his bill. But it is obvious that the rights of the heirs depend upon other considerations, and the same objection coming 'from them would not be entertained. So, too, the failure of the administrator to put in the plea of fully administered, would be as against the creditor, in the case of a judgment at law, an admission of assets which could not be disputed upon proceedings by the creditor to hold him personally liable. White v. Archbill, 2 Sneed, 588. But this rule, even as to the creditor, has been modified by statute, and judicial decision. The Code, sec. 2394, has re-enacted a statutory provision adopted as early as 1838, that “in no case where an estate is ascertained to be insolvent, shall any executor or administrator be rendered personally responsible by reason of any false plea by him pleaded.”. Under this provision, a suggestion of the insolvency of the estate bdfore the administrator has been held liable will protect him. Mosier v. Zimmerman, 5 Hum., 62; Griffin v. Fowlkes, 1 Tenn. Leg. Rep., 30. So, it was long before held, he will be protected if he had no opportunity to plead fully administered, as where the judgment has been taken by motion without notice. Williams v. Greer, 4 Hay., 235. So when the recovery is by decree in chancery upon pleadings raising no issue or contest as to whether he had wasted the assets. Cox v. Cox, 2 Yer., 305; Wray v. Williams, 2 Yer., 302; Dance v. McGregor, 5 Hum., 435. And this would necessarily be the case if the suit had been commenced in the life time of the intestate, and merely revived against the administrator.' Of course, in all such cases, the remedy of the creditor against the lands descended would not be prejudiced by the failure of the administrator to plead fully administered. And a fortiori, the remedy of the administrator under the Code, sec. 2267, or under other provisions of the Code, upon a formal suggestion of insolvency, would remain in full force. The heir, it is well settled, would be protected by an actual finding against the administrator upon the plea of fully administered, and a subsequent devastavit. Peck v. Wheaton, M. & Y., 353. But I am unable to find any case in our books, nor have the learned counsel for the defendants furnished any, where, since the act of 1827 and subsequent acts in pari materia, and in a proceeding in the nature of a chancery suit, the heir has been held protected by a mere failure on the part of the administrator to plead fully administered. The reason is, that the only object of the plea is to show that the personal assets have been exhausted before going upon the realty, and this end is attained by the preliminary account of the personal assets required by those acts now embodied in the Code. It is not necessary, however, r.o lay down a positive rule on this subject. It is sufficient for the present case, that the answer of the heirs does not claim, nor does the proof show, that the judgments in question were recovered under such circumstances as to require the defense to have been put in, and the record does show that the personal assets were insufficient to meet the demands on which the judgments were rendered, and the equally just demands to the satisfaction of which they were applied.

The general statute of limitations, provided by the Code, sec. 2763, for the protection of persons in possession of land under an assurance of title purporting to convey an estate in fee, applies to actions, either at law or in equity, for the recovery of the land itself or some specific interest therein, legal or equitable. It has no application to an action which merely seeks to subject the land to the burden of a debt or charge imposed either by contract or by statute. The limitation could not be set up by a judgment debtor in bar of the enforcement by execution of a judgment more than seven years old, or in bar of a lien or charge in subordination to which possession is taken. Gudger v. Barnes, 4 Heis., 570; Norris v. Ellis, 7 . The Code, sec. 2252, embodying the substance of the act of 5 Geo. II, ch. 7, sec. 4, provides that “every debtor’s property, except such as may be specially exempt by law, is assets for the satisfaction of all just debts.” And although the original act did not authorize the sale of lands descended to the heir by virtue of a judgment against the administrator, nor by virtue of a judgment against the ancestor, except by first exhausting the personal assets by proceedings against the administrator, (Roberts v. Busby, 3 Hay., 299; Boyd v. Armstrong, 1 Yer., 40,) yet it virtually made realty assets foi the payment of debts, and subsequent acts, notably 1784, ch. 11, Code, sec. 2258, et seq., provided a specific mode for reaching it in the hands of the heir. The mode thus pointed out still remains the only mode in which' the creditor can proceed at law, or in the direct enforcement of a money recovery against the administrator in equity. Modern legislation has provided an easier way for the attainment of the same end, commencing with the act of 1827, ch. 54, Code, sec. 2267, et seq. The old common law rule of the immunity of lands descended has been effectually abrogated, and the tendency of modern legislation, summarised in the Code, sec. 2252, and of modern decision, is to treat the land of the ancestor, in the hands of the heir, as assets for the payment of debts to the same extent as the personalty. It descends upon the heir charged with the liability in favor of the creditors, to the enforcement of which the latter are justly entitled if they pursue the mode prescribed by law, and have not been guilty of such delay as brings them within the bar of any of the statutes provided for the protection of the heir. The limitation thus provided, upon which the defendants in this case rely, is contained in the Code, secs. 2281-2786. These sections contain the substance of the act of 1715, ch. 48, sec. 9, a statute, to use the language of Judge Reese in Caplinger v. Vaden, 5 Hum., 629, “about which, several years since, so much was written, and so little decided.” And it is a curious fact that, after the elaborate discussions of the earlier cases, it remained for the court, in. that case, to put a construction upon the act, which, while not in conflict with any previous adjudication, brought it within the general rules of interpretation applied • to all of our •other statutes of limitation, and deprived it of the Procrustean character to which its peremptory language seemed to relegate it. The court held that the act, notwithstanding its positive terms, did not begin to run from the death of the debtor, but only from the accrual of the cause of action, if that occurred after the debtor’s death. This “equitable construction,” as Judge Reese styles it, was embodied in the language of the Code, a fact sometimes overlooked. The original act reads thus: “Creditors of any person deceased shall make their claim within seven years after the death of the debtor, otherwise such creditor shall be forever barred.” The Code says: “So that such suit be brought within seven years after the death of the debtor, if the cause of action accrued in his lifetime, or otherwise- within seven years from the time the cause of action accrued.” The “equitable construction” had been put upon the shorter limitations provided for the protection of the estates of decedents, and was the obvious dictate of good sense. Marshall v. Hudson, 9 Yer., 57; Reeves v. Pulliam, 1 Tenn. Leg. Rep., 236. The legislature could never be held to intend, unless, they said so in so many words, that a person should be barred of his action before the right to sue had accrued.

The struggle in the earlier cases over the act of 1715 did not turn upon this point, but was whether the act was repealed by 1789, ch. 23; whether it applied to the heir in cases in which his inheritance could only be reached by judgment against the personal representative; and as to what meaning should be given to the words “make his claim.” Pea v. Waggoner, 5 Hay., 1; Boyd v. Armstrong, 1 Yer., 40; Johnston v. Dew, 5 Hay., 224. The courts held at once, and the decision has been adhered to, that the heir was entitled to the benefit of the statute where the action was direct for the land descended, as upon a bill filed for the specific performance of a contract of the ancestor for the conveyance of land. Smith v. Hickman, Cooke, 330; Lewis v. Hickman, 2 Tenn., 317; Williams v. Conrad, 11 Hum., 412; Earles v. Earles, 3 Head, 366. They held also, that the personal representative might have the benefit of the statute after the lapse of seven years from the death of the ancestor, where the cause of action accrued in the lifetime of the decedent. Lewis v. Hickman, 2 Tenn., 317. And, as we have seen, it was further held that' the statute would not begin to run until the accrual of the cause of action, if it accrued after the death of the debtor, a construction adopted in terms by the Code, and, of course,, made applicable to the action against the heir as well as the personal representative. The point left open is as to the right of the heir to rely upon the statute after the cause of action accrued, where no suit could be brought against him at that time, but only after the recovery of judgment against the personal representaiive.

Upon this point, considering it as entirely open, three views suggest themselves. First, that the heir is protected after the lapse of seven years from the maturity of the debt, regardless of the fact whether, during the time, the creditor could proceed against the heir or not. Secondly, that the running of the statute is prevented by the commencement of an action within the time against the personal representative. Thirdly, that the statute operates in favor of both the personal representative and the heir from the time when the-creditor’s right to sue commences against each, and inasmuch as the heir, in the case supposed, cannot be. sued until recovery is had against the personal representative, the action against him accrues only from that date.

The objection to the first of these views is, that it not only leads to the harsh and inequitable conclusion that a creditor may be barred by the statute, although during the whole time of its running he could not possibly sue the heir, but it runs counter to the decisions of the courts upon all other statutes of limitation, even where the leiter of the law is equally peremptory. The act of 1789, ch. 23 sec. 4, for example, provided that: “The creditors of deceased persons, if they reside within this State, shall within two years, and if without, shall within three years from the qualification of the personal representatives, exhibit to them their accounts, debts, and claims, and make demand, and bring suit for the recovery thereof, or be forever barred in law and equity.” But it has been uniformly held that the statute would only run from the time when the right to sue actually accrued, a construction, as we have seen, put also upon the act of 1715 itself. Marshall v. Hudson, 9 Yer., 57; Caplinger v. Vaden, 5 Hum., 629. And it has uniformly been held that, although the heir may rely upon the statute of two and three years, and upon the general statutes of limitation, he can only insist upon them up to the time of the bringing of the action against the personal representative. Peck v. Wheaton, M. & Y., 353; Neal v. McCombs, 2 Yer., 10. No reason occurs why the same rule of construction should not be applied to the statute of seven years as to other statutes in pari materia. For, if the limitation be held to commence in favor of the heir from the death of the ancestor on claims which matured in his lifetime, precisely the same injustice would be worked, though not so frequently as if the heir were permitted to rely upon the general statutes of limitation, or the special limitation of two and three years, although suit might be brought in time against the personal representative. The ordinary law’s delay would often extend the litigation with the personal representative, as in the case before us, beyond the period of limitation, and we should have the unwelcome spectacle of a creditor barred before he had any right to sue.

There is no decision, nor even intimation in our earlier books that the statute would run in favor of the heir in such a case. It was only after the sound of the great struggle over the statute of 1715, to which Judge Reese alludes in Caplinger v. Vaden, had died away, that such an idea seems to have been entertained. And, even yet, no direct adjudication of the point has been made upon facts which were understood by the court to distinctly raise the question, as was shown by Judge Turney in his review of the cases in Woolridge v. Page, 2 Leg. Rep., 129. There are, however, two cases in which the learned judges, who deliver the opinions of the court, treat the statute as beginning to run in favor of the heir from the death of the ancestor,’ notwithstanding proceedings had against the personal representative. In the first of these cases there had been no formal suit and judgment against the administrator, and only a filing of the claim in the County Court upon a suggestion of the insolvency of the estate. The learned judge who delivers the opinion seems to consider that there was no judgment, and says: “There is no exception in favor of a claim filed under the insolvent acts.” Stone v. Sanders, 1 Head, 248. If, however, the claim was allowed by the County Court, the allowance would have been, in effect, a judgment, and, in that view, the point was raised by the facts, but was clearly not considered by the court. In the other case the suggestion is made after Raving already decided the rights of the parties upon the facts disclosed by the record, it not appearing that the suit against the administrator was commenced in time. Venable v. Estell, 2 Tenn. Leg. Rep., 52. Inasmuch as the Court did not, in either of these cases, consider the rights of the parties upon the basis of a judgment recovered against the personal representative by a suit commenced within due time, the opinions are not binding authority in a ease where a formal judgment was recovered in a suit commenced in time, and the rights of the parties, in view of that fact, brought directly under consideration. An opinion, as this court has invariably held, is authority only so far as it adjudges rights upon the particular facts in the record distinctly considered. And we are unwilling to adopt a construction of the statute which would make it bar rights before they could be legally asserted.

It remains to be considered whether the statute begins to run in favor of the heir from the accrual of the creditor’s right of action on the debt, and the bar is prevented by the commencement of the suit against the personal representative, or whether the statute begins to run in favor of the heir only from the accrual of the creditor’s right of action against him, which would be, in the case before us, from the recovery of judgment against the personal representative. In the first of these views, the creditor’s demand is treated as one against the personalty and realty of the ancestor’s estate, and the running of the statute is at once put an end to by the commencement of legal prooceedings against the personal representative within seven years. There can he no doubt that this is the view of the creditor’s rights as affected by the ordinary statute of limitations, and the statute of two and three years. If suit be brought against the personal,, representative within the bar of these statutes, the heir can no longer rely upon them. In strict analogy, and, perhaps, logically, the statute of seven years would fall within the same principle. I think, too, that this was the view of some of our earlier judges, although the point never was distinctly presented to, or decided by them. In Pea v. Waggoner, 5 Hay., 5, Judge Roane says: “If the creditor commence his suit in due time, so that the personal representative could not avail himself of the statute of limitations, neither shall the legatee or heir be permitted to avail themselves of it by plea to the scire facias, unless perhaps in cases of unreasonable delay.” This language is used while discussing the right of the heir to the benefit of the statutes of limitation generally, including the act of 1715. In Johnston v. Dew, 5 Hay., 240,Judge Haywood says: “The result of these reflections is, that if the personal estate must first be resorted to, and judgment be obtained upon the plea of fully administered, as a foundation for the scire facias against the heir before he can proceed against him, a bar to the creditor as against the personal estate must also be a bar as to the real estate.” On the other hand, in Peck v. Wheaton, M. & Y., 353, the right of the heir to rely upon the statute of 1715, although suit had been commenced in time against the executor, and judgment recovered, after the recovery of such judgment, seems to be conceded. And the objection to the contrary view is that, after judgment in time against the personal representative, there is no statute of limitation in favor of the heir, while the provisions of 1715, brought into the Code, seem to contemplate a period which shall bar all litigation, widiout respect to disabilities. After judgment recovered against the personal representative, if there be no statute of limitations in favor of the heir, the creditor has acquired a legal right, which cannot now be interfered with within the period of ten years prescription fixed to proceedings on judgments by the Code, sec. 2776. It is not easy to see how laches can be imputed to a creditor for any delay short of the period allowed by law for the assertion of his legal rights. And besides, laches and unreasonable delay are terms of two much uncertainty, and liable to be qualified too much by the circumstances of each ease, to give a practical rule for guidance in the large class of cases under consideration. We think it safer to say, that, so far as the heir is concerned, the cause of action cannot be said to accrue in favor of the creditor until he has recovered judgment against the personal representative, wherever his right to proceed against the heir is delayed until such recovery. The language of the Code, which is different, as we have seen, from that of the original act, seems to invite this construction by the general intent disclosed, that the time should only run from the accrual of the cause of action. The heir may still rely upon the statute if the personal representative neglect to plead it in a proper case, and may also protect the inheritance if the creditor, or the personal representative, who to this extent represents him, neglect to sue for 'more than seven years after judgment recovered in an action commenced in time. The authorities are that the creditor acquires no lien on the realty until process issued against the heir. Peck v. Wheaton, M. & Y., 353; Combs v. Young, 4 Yer., 218. Or, at any rate, until judgment recovered against the personal representative. Per Judge Haywood in Smith v. Stump, Peck, 281.

The court concurs in the conclusion reached in Woolridge v. Page, and holds that the recovery of a judgment against the personal . representative by suit commenced in time will save the bar of the statute as to realty as well as . personalty, provided the proceedings' to subject the realty are instituted within seven years from the recovery of such judgment. But the bar of the statute will attach in favor of the heir after the lapse of seven years from the date of the judgment. The result is to modify the decree of the Chancellor by sustaining the exceptions of the heirs to the two judgments recovered in 1867 and 1868,- and affirming it in other respects. The costs will be paid out of the proceeds of the realty.

In regard to the rulings of this opinion on the statute of limitations of seven years, all of the judges, except Judge Freeman, who dissents on this point, concur in holding that the heir is not protected by the lapse of seven years from the death of the ancestor, or accrual nf the cause of action, if the suit is commenced in nme against the personal representative. The Chief Justice and the writer of the opinion concur in the other rulings. Judges McFarland and Turney are of opinion that the státute ceases to be operative upon the recovery of judgment against the personal representative in a suit commenced in time. After such recoveiy, Judge McFarland is of opinion that there is no bar to proceeding thereon by the creditor against the heir short of the ten years limitation of the Code to actions on judgments and decrees, while Judge Tur-ney thinks, as stated by him in Woolridge v. Page, that the creditor must proceed upon the judgment with reasonable diligence, under the penalty of being-repelled for laches, to be determined on the facts of the particular case, but, as Between the seven and ten-years bar, he prefers the shorter period, and is clear that the creditors whose judgments were recovered more than seven years before the filing of this bill are barred.