The opinion of the court was delivered by
Beasley, Chief Justice.
This is an action against heirs and devisees, on a covenant against encumbrances contained in a deed of conveyance of their ancestor and devisor. The wife of a former owner of the premises in question, did not join in the conveyance which formed a link in the title which the ancestor of the defendants conveyed to the plain tiffs; and the declaration shows, that after the death of such ancestor, this wife, having become a widow, enforced her right and recovered her seizin of the third of the lands, besides certain costs of suit. The action is in the form of covenant, and the -question is, whether this kind of suit, for such a subject matter, will lie against heirs and devisees, by force of the statute of this state. The statute thus brought before the -court for construction, for the first time, is, that entitled “ An act for the relief of creditors against heirs and devisees,” and is to be found in Nix. Dig. 380.
This statute is manifestly of a remedial character. By the common law, the land of a deceased debtor was not liable for his debts or obligations. A creditor could not follow the realty which consequently passed to the heir or devisee, unencumbered by the engagements of the deceased owner. Nor was there any personal responsibility for any such engagements on the part of the heir, unless the ancestor had executed an obligation by which he had specially bound his heirs, in which event, his descendant was liable to the extent of the -value of the lands which had descended to him and which -had not been aliened at the time of the commencement of 4he suit against him. But even the obligation of such [296]*296specialties did not extend to the devisees of the debtor. The consequence was, that by force of this system, the lands of a debtor passed to his devisees discharged from his debts, or if he died intestate, they went to his heirs similarly exonerated, unless for such debts as he had specially imposed on his heirs by his contracts, under seal. Such a system was defensible only on the policy of the feudal law, the tendency of which was to transmit the heritage unburthened, as the basis of its military organization ; but it was plainly inconsistent with the commercial spirit, which can favorably exist only when its engagements can be fully enforced at law, and the consequence was, that when traffic became the prevailing interest, the old law, in the particular just noticed, was found defective. Accordingly, the evil was attempted to be remedied by the act entitled “ An act for the relief of creditors against fraudulent devises,” passed in the third year in the reign of William and Mary, ch. 14, (A. D. 1691.)
The preamble of this statute, stating the object in view, recites that “ Whereas it is not reasonable or just that by the practice or contrivance of any debtors, their creditors should be deprived of their just debts ; and nevertheless it hath often so happened that where several persons having, by bonds or other specialties, bound themselves and their heirs, and have afterwards died seized in fee simple of and in manors, messuages, lands, tenements and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have, to the defrauding of such their creditors, by their last wills or testaments, devised the same or disposed thereof in such manner as such creditors have lost their said debts; for remedying of which, &c. The second section of this act is the important one on this occasion, and it is as follows: “And for the means that such creditors may be enabled to recover their said debts, be it further enacted, &c., that in the cases before mentioned, every such creditor shall and may have and maintain his, her, and their action and actions of debt, upon his, her and their said bonds and specialties against the heir and heirs-at-law of such obligor or [297]*297obligors and such devisee and devisees jointly, by virtue of this act, &c.
From this recital, it will be perceived that it appears to have been the parliamentary intention to render the heirs and devisees liable to suit in all cases in which the debtor had bound himself and heirs “ by a bond or other specialty,” but as the body of the act was couched in less extensive terms, a doubt was left if such design was carried into effect. This doubt was set at rest by the decision of the King’s Bench in the leading case of Wilson v. Knubley, 7 East. 128. The action in that case was covenant and rested on facts similar in substance to those stated in' the present declaration, and the residt reached by the court is thus summarized by the reporter in his syllabus that, “ an action of covenant does not lie upon the statute (3 W. and M., ch. 14,) against the devisee of land to recover damages for a breach of covenant made by the devisor; but the remedy thereby given is confined to cases where debt lies.” This exposition being approved in subsequent cases, the original imperfection of the English law in this respect remained, in a measure, unamended until the passage of a later statute, which extended the remedy of the creditor against heirs and devisees to cases arising out of breaches of contracts of a deceased obligor.
In this situation of the authorities, if the statute of this state was a mere counterpart of the act of William and Mary, I should not hesitate to follow the interpretation which was put, to the effect just expressed, upon this latter enactment. But these statutes are not identical. The act of this state, which was drawn by Judge Paterson, is characterised by the use of terms of much broader signification than those contained in its English antecedent, and, upon a careful consideration, it seems to me scarcely possible not to conclude that this marked alteration of phrase was designed to remove imperfections which were observed to deform the model; one of such imperfections being the restricted range which it gave to the creditor against the devisee. According to the judicial exposition of the English act, the creditor had no action [298]*298against the devisee except for obligations which were enforceable by a suit in the form of debt, so th^t breaches of covenant for unliquidated damages were left without redress, as they were at common law, so far as related to a person taking land by a testamentary gift. But this result was the creature of the peculiar language of the act of William and Mary, the context being, in this respect, somewhat inconsistent with the preamble. The truth of this remark will be at once apparent by a perusal of the report of the case, already cited, of Wilson v. Kuubley. That suit was for breaches of a covenant against encumbrances, contained in a conveyance, the grantor being dead, and the defendant being his devisee. The point raised was, whether such action would lie by virtue of the statute, the counsel for the defendant contending that the remedial compass of the act did not embrace actions of that kind, which was covenant; while, on the other side it vas insisted that such form of proceeding was at least within the meaning and equity of the statute, if not within its words. Lord Ellen-borough, in giving his opinion, places the ground of decision in so clear a light that a short quotation will not be out of place. He says: “I agree with the plaintiff’s counsel that the grievance recited in the preamble of the act would have led one to suppose that the legislature meant to have given a larger remedy than the action of debt.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Beasley, Chief Justice.
This is an action against heirs and devisees, on a covenant against encumbrances contained in a deed of conveyance of their ancestor and devisor. The wife of a former owner of the premises in question, did not join in the conveyance which formed a link in the title which the ancestor of the defendants conveyed to the plain tiffs; and the declaration shows, that after the death of such ancestor, this wife, having become a widow, enforced her right and recovered her seizin of the third of the lands, besides certain costs of suit. The action is in the form of covenant, and the -question is, whether this kind of suit, for such a subject matter, will lie against heirs and devisees, by force of the statute of this state. The statute thus brought before the -court for construction, for the first time, is, that entitled “ An act for the relief of creditors against heirs and devisees,” and is to be found in Nix. Dig. 380.
This statute is manifestly of a remedial character. By the common law, the land of a deceased debtor was not liable for his debts or obligations. A creditor could not follow the realty which consequently passed to the heir or devisee, unencumbered by the engagements of the deceased owner. Nor was there any personal responsibility for any such engagements on the part of the heir, unless the ancestor had executed an obligation by which he had specially bound his heirs, in which event, his descendant was liable to the extent of the -value of the lands which had descended to him and which -had not been aliened at the time of the commencement of 4he suit against him. But even the obligation of such [296]*296specialties did not extend to the devisees of the debtor. The consequence was, that by force of this system, the lands of a debtor passed to his devisees discharged from his debts, or if he died intestate, they went to his heirs similarly exonerated, unless for such debts as he had specially imposed on his heirs by his contracts, under seal. Such a system was defensible only on the policy of the feudal law, the tendency of which was to transmit the heritage unburthened, as the basis of its military organization ; but it was plainly inconsistent with the commercial spirit, which can favorably exist only when its engagements can be fully enforced at law, and the consequence was, that when traffic became the prevailing interest, the old law, in the particular just noticed, was found defective. Accordingly, the evil was attempted to be remedied by the act entitled “ An act for the relief of creditors against fraudulent devises,” passed in the third year in the reign of William and Mary, ch. 14, (A. D. 1691.)
The preamble of this statute, stating the object in view, recites that “ Whereas it is not reasonable or just that by the practice or contrivance of any debtors, their creditors should be deprived of their just debts ; and nevertheless it hath often so happened that where several persons having, by bonds or other specialties, bound themselves and their heirs, and have afterwards died seized in fee simple of and in manors, messuages, lands, tenements and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have, to the defrauding of such their creditors, by their last wills or testaments, devised the same or disposed thereof in such manner as such creditors have lost their said debts; for remedying of which, &c. The second section of this act is the important one on this occasion, and it is as follows: “And for the means that such creditors may be enabled to recover their said debts, be it further enacted, &c., that in the cases before mentioned, every such creditor shall and may have and maintain his, her, and their action and actions of debt, upon his, her and their said bonds and specialties against the heir and heirs-at-law of such obligor or [297]*297obligors and such devisee and devisees jointly, by virtue of this act, &c.
From this recital, it will be perceived that it appears to have been the parliamentary intention to render the heirs and devisees liable to suit in all cases in which the debtor had bound himself and heirs “ by a bond or other specialty,” but as the body of the act was couched in less extensive terms, a doubt was left if such design was carried into effect. This doubt was set at rest by the decision of the King’s Bench in the leading case of Wilson v. Knubley, 7 East. 128. The action in that case was covenant and rested on facts similar in substance to those stated in' the present declaration, and the residt reached by the court is thus summarized by the reporter in his syllabus that, “ an action of covenant does not lie upon the statute (3 W. and M., ch. 14,) against the devisee of land to recover damages for a breach of covenant made by the devisor; but the remedy thereby given is confined to cases where debt lies.” This exposition being approved in subsequent cases, the original imperfection of the English law in this respect remained, in a measure, unamended until the passage of a later statute, which extended the remedy of the creditor against heirs and devisees to cases arising out of breaches of contracts of a deceased obligor.
In this situation of the authorities, if the statute of this state was a mere counterpart of the act of William and Mary, I should not hesitate to follow the interpretation which was put, to the effect just expressed, upon this latter enactment. But these statutes are not identical. The act of this state, which was drawn by Judge Paterson, is characterised by the use of terms of much broader signification than those contained in its English antecedent, and, upon a careful consideration, it seems to me scarcely possible not to conclude that this marked alteration of phrase was designed to remove imperfections which were observed to deform the model; one of such imperfections being the restricted range which it gave to the creditor against the devisee. According to the judicial exposition of the English act, the creditor had no action [298]*298against the devisee except for obligations which were enforceable by a suit in the form of debt, so th^t breaches of covenant for unliquidated damages were left without redress, as they were at common law, so far as related to a person taking land by a testamentary gift. But this result was the creature of the peculiar language of the act of William and Mary, the context being, in this respect, somewhat inconsistent with the preamble. The truth of this remark will be at once apparent by a perusal of the report of the case, already cited, of Wilson v. Kuubley. That suit was for breaches of a covenant against encumbrances, contained in a conveyance, the grantor being dead, and the defendant being his devisee. The point raised was, whether such action would lie by virtue of the statute, the counsel for the defendant contending that the remedial compass of the act did not embrace actions of that kind, which was covenant; while, on the other side it vas insisted that such form of proceeding was at least within the meaning and equity of the statute, if not within its words. Lord Ellen-borough, in giving his opinion, places the ground of decision in so clear a light that a short quotation will not be out of place. He says: “I agree with the plaintiff’s counsel that the grievance recited in the preamble of the act would have led one to suppose that the legislature meant to have given a larger remedy than the action of debt. For it recites, &c., and by section two it says, 'for the means that such creditors may be enabled to recover their said debts, that in the cases before mentioned every such creditors shall have their actions of debt upon the said bonds ánd specialties,’ &c. If it had only said that they should have their actions without more, then there would have been ground for going the length of the argument of the plaintiff’s counsel; but the legislature have expressly limited the means of recovery by such creditors to actions of debt.”
From this extract it will be observed that the restriction of the creditor to a remedy in one form of action, that is to the action of debt, was the decisive circumstance on which this decision was rested. But for it Lord Ellenborough clearly [299]*299intimates that the argument, derived from the gravamen complained of being within the mischief to be remedied, would have bent his judgment in the opposite direction. It is clear, therefore, that this precedent is not on the side of the defendant in the present action, when we come to the exposition of our own statutes, for in this important feature our act varies from that of William and Mary. In order to be intelligible it is necessary to recite the pertinent words of the statute of this state. This is its language: “All and every creditor and creditors, whether by simple contract or specialty, and whether the heirs are mentioned therein or not, shall and may, by virtue of this act, have and maintain his, her or their action and actions against the heir and heirs-at-law of any debtor who hath already died, or shall hereafter die intestate, seized of any messuages, lands, tenements or hereditaments, and against the heir and heirs-at-law, and devisee and devisees of snob debtor, in case such debtor made any last will and testament,” &c.
Thus it appears that in our act the creditor is authorized, in broad terms, to bring his action or actions against the heirs and devisees; whereas, in the English act he is confined to an action of debt — a difference so material that, as we have seen, the restriction to a single form of remedy led to the English adjudication just quoted. When, therefore, it is now contended that, from some of the terms used in it, an inference is to be drawn that the law makers did not intend to make the heirs and devisees liable for any but the debts of the ancestor, this enlargement of the form of action is a strong argument against such view. If such a contracted interpretation should be deemed legitimate, but slight reason appears why, in this respect, the statutory phraseology was changed. With the suggested end to be accomplished, the language of the English act was quite apt. I think the change of the words evinces a change of intent. At all events, it seems to me to be beyond reasonable contention that the English adjudications, interpreting the statute of William and Mary, can [300]*300have but little weight in any attempt to expound the act of this state, on account of their verbal differences.
The remaining argument of the counsel of the defendants has greater force. That argument is, that the act in terms gives nothing more than an action in favor of a creditor against the heirs and devisees of a debtor; and that by the use of these expressions, debts, strictly so called, are contemplated, and not damages for the breach of covenants. Undoubtedly, according to common usage, the terms in question have the meaning ascribed to them ; and in the construction of statutes, such common usage is mostly the criterion by which the sense of the language is to be ascertained. This is the common rule, founded in good sense, and it is a rule which, I think, should not be, on slight grounds, ignored or infringed. But like all other guides to statutory interpretation, the principle cannot have a universal application. When the intent of the law maker is entirely clear, in view of the purpose expressed in the general provisions of the law, a verbal expression here and there in the act will not stand in the way of the effectuation of such intent. And, therefore, when words used have a common meaning and also an uncommon meaning, and the former appears to run counter to the general scope of the law, and the latter is in harmony with it, it is the latter that will be adopted. And this is the canon of construction now applicable, for the terms here criticised have both a usual and unusual signification; the term creditor does not mean singly a person to whom a debt is due — that is but its usual meaning; but it further denotes a person to whom any obligation is due — and this is its unusual meaning. A creditor, according to the definition of Bouvier, “ is he who has a right to require the fulfilment of an obligation or contract.” In this large sense it means more than the person to whom money is owing. Webster’s explanation of the word is, “ A person to whom a sum of money or other thing is due by obligation, promise, or in law.” This description has scope enough to embrace the duty where nonobservance constitutes the gravamen of the present suit. Also., [301]*301the words “ debt ” and “ debtor,” have a similar amplitude of meaning. “The word £clebt/” says Burrill, iu his law dictionary, “ is of large import, including not only debts of record or judgment, and debts by specialty, but also obligations arising under simple contract, to a very wide extent, and in its popular .sense includes all that is due to a man under any form of obligation or promise.” And Sir Edward •Coke, in commenting on the word debitum, in the statute of Merton, eh. 5, says: “ Debitum signifieth not only debt, for which an action of debt doth lie, but here in this ancient act of parliament, it- signifieth generally any duty to be yielded or paid.” The same extent of meaning is ascribed to this term by Chief Justice Tilghman, in Frazer v. Tunis, 1 Binney's Rep. 254; and the judgment in the receut case of Bide v. Harrison, L. R., 17 Eq. 76, is to the same effect, it •being there held that a bequest of “ all and every sum or .sums of money due to me at my decease,” included damages recovered in an action by the executor for a breach of covenant committed in the lifetime of the testator. The following .are likewise pertinent authorities : Ram on Assets, (2d ed.) 3, 4, 5; Toller on Executors 282; Wentworth on Executors 284; 2 Williams on Executors 915.
It follows, then, that the words in question, in their largest sense, are comprehensive of the remedy claimed in the present suit. Whether they are to be held to have such comprehensiveness in their present use, depends on the inquiry into the intent, in this respect, of the law maker; and a knowledge of the state of the law at'the date of the act, is requisite to the formation of a correct judgment upon this question.
Previous to the passage of the colonial act making real •estate subject to the lien of debts, lands in this state could not be sold under execution, but could only be extended upon an .elegit. That law was enacted December 2d, 1743, and appears in Allinson’s Laws 129. The preamble recites that it “ is highly reasonable and just ” that the real estate of every person should be subject to the payment of his debts; and the first section enacts, that such real estate “ shall be liable and [302]*302chargeable with all just debts, duties and demands of whatever nature or kind soever, owing by, or due from any such person, &c., and shall be and are hereby made chattels for the satisfaction thereof, in like manner as personal estates within this province are seized, sold or disposed of for the satisfaction of debts.” The effect of this act was to make lands liable to sale on a judgment against the executor or administrator, to the same extent as were goods of the decedent; and this act was in operation at the time that Judge Paterson, in his revision, undertook to remodel this branch of the system. What his design was, and what changes he effected, will appear, if we extend our view so as to embrace not only the act just referred to, and the one immediately under consideration, but also the act drawn by the same hand, and which is a part of the same general plan, entitled “ an act making lands liable to be sold for the payment of debts.” Pat. Laws 369. This last enactment, so far as relates to our present subject, declares, that lands shall not be sold or affected by virtue of any judgment against executors or administrators, and provides for the sale by the order of the Orphans Court of the decedent’s lands, after the exhaustion of the personal estate. By force of these acts, therefore, the alteration made in the system was this ; the heirs and devisees were made liable to the extent of the value of the lands which devolved to them • or, the executor or administrator, if the goods failed, could resort to the lands through certain judicial action. Now, no one, I think, can consider the change thus wrought without being convinced that it was no part of the design of the reviser to suffer the lands of the decedent to escape any liability for his engagements which had before been imposed upon them. The provincial law, declaring that such a course was “highly reasonable and just,” had made lands “ liable to, and chargeable with all just debts, duties, and demands, &c., owing by or due from” the deceased owner;. and it is most improbable that it was the intention to take a retrograde step, and to follow the lands into the hands of the heir or devisee with only a -partial liability. I can see [303]*303no indication of any such purpose. To subject the lands to the judgment against the executor or administrator, was a hardship to the heir or devisee, as they were not parties to such proceeding, and there was real danger that their interests might be impaired by collusive recoveries ; there was a reason, therefore, to do away with that procedure, but there was no reason to invade or mutilate that admitted rule of justice, that all the property, both real and personal, should be responsible for all the debtor’s legal liabilities. And, accordingly, the idea of the reviser, as I read it, was, to change,, not .this salutary principle, but merely the form of carrying it into effect. Instead of the lands being made liable in the hands of the personal representative for all the “ debts, duties, and demands” of the decedent, a personal liability to the extent of the value of such lands was put upon the parties taking by descent or. by purchase under the will. I am thus forced to reject the idea, that Judge Paterson intended to place a burthen on the heir or devisee only in favor of a certain class of creditors. The machinery of the law was changed, but the purpose remained unchanged.
And this construction will stand further justified, if we note the departures of our act from the provisions of that of William and Mary. This latter enactment did not extend a remedy to the creditor against the lieir or devisee, unless the contract broken was in the form of a specialty, and unless an obligation was, in terms, imposed upon the heir. To the-contrary, our act embraces obligations created by simple contract, and “ whether the heirs are mentioned therein or not.” This amplification of remedial efficacy is a strong exhibition of a desire to carry out the ancient colonial system of this-state, which blended the real and personal assets into a fund for the payment of the legal dues of the deceased owner, and which is a consistent part of the general plan embodied in the various enactments which have just been referred to. By giving, then, a broad signification to the words in question,, the spirit of this statute is subserved, and the evident policy, as manifested in other parts of our law, is forwarded and exe[304]*304cuted. A narrower interpretation of the statutory language would be out of harmony with the purview of this act, and of those cognate acts which, being in pari materia, are to be taken into consideration in any endeavor to construe it. Under such conditions, the-terms in question should not be given a prevailing force. “ When the expression in a statute is special or particular,” says Chancellor Kent, 1 Com. 462, “ but the reason is general, the expression should be deemed general.” The rule thus defined, is applicable, in its full vigor, in the present instance. The remedy provided by this statute should not be so abridged by the ascription of a narrow meaning to the terms “ creditor” and “ debtor,” as to limit it to that class of contracts which call for the payment of specific sums of money, but, in furtherance of the general policy of our laws, and of the evident design of the act itself, should be extended in meaning so as to make it applicable to every obligation growing out of contract, which rested on the decedent at the time of his decease. The result, consequently is, that the plaintiff must have judgment in his favor on this demurrer.