Scott v. Ware

64 Ala. 174

• Court: Supreme Court of Alabama
• Decided: December 15, 1879
• Status: Published

Opinion

BBICKELL, C. J.

[After stating the facts as above]— Before a creditor can obtain the assistance of a court of equity, to subject lands descended, or lands devised, to the satisfaction of his demand, he must have established his debt by a judgment at law, and exhausted his legal remedies; and there must be averment and proof of a want of personal assets, and of the insolvency of the personal representative, and the sureties on his bond, if any he has given.. — Darrington v. Borland, 3 Port. 9; Pike v. Searcy, 4 Port. 52; Ledyard v. Johnston, 16 Ala. 548. A court of equity has not original, inherent jurisdiction to decree a sale of lands descended — they were not assets at common law, and were liable to the payment of no other than debts due by specialty binding the heir. Nor had it jurisdiction to reach lands devised, unless they were charged by the testator with the payment of debts. The statutes charge the entire estate, real and personal, of a deceased person, saving the constitutional and statutory exemptions, with the payment of debts, making no distinction between them, except a requisition that the personal estate must be first applied. Nor is there any distinction made between debts, whether simple contract, specialty, or matter of record. A preference is to be observed in the order of payment, founded on the consideration, and not on the evidence of debt. Funeral expenses, expenses of last sickness, fees and expenses of administration, taxes on the estate, and wages of overseers for the year of the death of the intestate or testator, are entitled to payment in the order named. All other debts stand upon an equality, and the personal representative can make or give no preference between them; nor can a creditor, by any diligence on- his part, acquire a preference or priority.

A creditor, therefore, proceeding in equity to subject lands descended or devised, must sue on behalf of himself a'nd all other creditors. It seems to be a rule in the English Court of Chancery, that a single creditor may maintain a bill for the payment of his own debt, and seek a discovery of assets for that purpose only; the practice being, not to decree a general account, but an account of the personal estate, and of the particular debt, which is decreed to be paid in the due course of administration. — 1 Story’s Eq. § 516 ; 1 Dan, Ch. Pr. 236. But, if an administration of the real estate is sought, one creditor can not alone sue; he must sue on behalf of himself and all other creditors. — -1 Dan, Ch. Pr. 236. The rule first stated can not be recognized here, where creditors all stand on an equality, and the one can not acquire a preference over others; the only legal right or equity which he can claim being participation in the assets, real and personal, in common with others. Its recognition would lead to a multiplicity of suits, and would embarrass administrations. For, if one creditor could maintain a suit of that kind, another could, and the suits might be as numerous as the creditors having claims of an amount within the jurisdiction of the court; costs would be unnecessarily and veyatiously increased, consuming the assets ; while on one bill, to which all creditors may make themselves parties, and of which the court will take care that they have notice, a decree may be rendered enuring to the benefit of all, a general account taken, and the administration finally closed.— Wilkins v. Finch, 1 Phill. Eq. (N. C.) 355.

Whenever proceedings are instituted in the Oourt of Probate to sell, for the payment of debts, lands descended or devised, or in a court of equity to subject them, the heir or devisee may make any defense against the debts the intestate or testator could have made, if living, or which would be available to the personal representative, in an action at law against him; and there may be defenses on which they can rely, the personal representative has by his own acts or laches precluded himself from making. — Peck v. Wheaton, Mart. & Yerg. 353; Woodfin v. Anderson, 2 Tenn. Ch. 339; Bond v. Smith, 2 Ala. 660. Whatever would defeat or bar the debt, as a valid, subsisting, legal demand against the testator, or intestate, if he was living and defending, will bar and defeat it, when it is sought to charge the inheritance of the heir, or the estate of the devisee. — Bond v. Smith, supra; Ferguson v. Smith, 49 Miss. 500; Yandell v. Pugh, 53 Miss. 295; Champion v. Cayse, 54 Miss. 695.

There may be a judgment at law, establishing the demand against the personal representative, conclusive on him; but between him and the heir, or the devisee, no relation, no privity exists, which renders the judgment binding, or evidence against the latter, of any other fact than its rendition, of which it is evidence against all the world. — Freeman on Judgments, § 163 ; Farrington v. Borland, 3 Port. 38 ; Teague v. Corbitt, 57 Ala. 529. Such a judgment can not be evidence against the heir, or the devisee, for the simple reason, that he is not a party to it, has not been heard, and could not be heard to defend against it; nor could he prosecute an appeal for its reversal, if erroneous. If the situation of the parties was reversed — if the judgment had been obtained against the heir, or the devisee, — it would not be insisted for a moment that it was not without force as against the personal representative — that it did not, and could not, operate a deprivation of rights he had obtained by the grant of administration, or of letters testamentary, and under the will of the testator. Privity denotes mutual or successive relationship to the same rights of property, whether produced by operation of law, or by transfers or conveyances, the acts of parties. No right of property, no title to lands, vests in the personal representative. On the death of an intestate, eo instanti, they descend directly to the heir; or of a testator, they pass to the devisee; and from the intestate, the heir, or from the testator, the devisee, derives title, and between them a relation of privity exists; while they do not, and can not, take from or through the personal representstative, with whom they have no connection' and no relation.

A personal representative is not bound to plead the statute of limitations, in bar of an action against him, founded on the debt of the testator or intestate; and he may, as to himself, prevent the bar from attaching, or remove it after it has attached, by an express promise.— Greening v. Brown, Minor, 353; Knight v. Godbolt, 7 Ala. 304; Hall v. Darrington, 9 Ala. 502; Towns v. Ferguson, 20 Ala. 149; Harwood v. Harper, 54 Ala. 659. This doctrine may not be of general acceptance; but it is too firmly engrafted on the law of this State, by decisions to which reference is made, to be departed from without legislative interference. The acknowledgment or promise of the personal representative, or his failure to plead the statute in bar of an action against him, does not, however, prejudice the heir, or the devisee, nor will it charge real assets which have passed to him. It does .not rest in the mere volition of the personal representative, whether the heir shall or shall not be charged with the debts of the ancestor, or the devisee with the debts of the testator; nor, as was said by this court in Bond v. Smith, supra, can he dictate the defense which the heir or devisee may make. Any defense the ancestor could have made, if living, and the suit was intended to charge him personally, the heir or devisee is free to make, unprejudiced by the acts, or the laches, of the personal representative.

A judgment rendered against the personal representative, founded on a debt barred by the statute of limitations when suit was commenced, is open to a plea of the statute by the heir, or the devisee, and the judgment does not prevent the successful interposition of the plea. — Darrington v. Borland, supra; Teague v. Corbitt, supra: Woodfin v. Anderson, supra; Alston v. Mumford, 1 Brock. 272; Mooers v. White, 6 Johns. Ch. 373. The statute must have perfected a bar, when the action against the personal representative is commenced; for that action, if the bar is not complete, stops the running of the statute; and if judgment is obtained, the original claim is merged; the judgment is a valid, subsisting claim, until it is barred.— Yandell v. Pugh, 53 Miss. 295. Creditors have the first right to all the estate, real or personal, not specially exempt. To their rights the estate of the heir or devisee is subordinate, so long as their demands are subsisting and unsatisfied. The personal representative stands in the place of the decedent, and against him only can actions be maintained, founded on claims against the intestate or testator. There, is no room for the operation of the statute of limitations, when, before the bar is complete, an action against the personal representative is commenced.

It is not shown by the bill when the suit was commenced against the executor, in which the judgment was rendered. There can be no presumption indulged, or intendment made, that it was commenced at any time anterior to the rendition of the judgment, or that the judgment was not by confession, without previous proceedings, if such presumption or intendment is necessary to avoid the operation of the statute of limitations. The judgment, of itself, does not import, as against strangers to it, an indebtedness existing prior to its rendition.— Troy v. Smith, 33 Ala. 469; Dubose v. Young, 14 Ala. 139; Snodgrass v. Br. Bank Decatur, 25 Ala. 161; Jacobson v. Sims, 60 Ala. 191. All parties are presumed to state, in pleading, all facts material to their rights; and on demurrer, facts not stated, are presumed not to exist.

When the judgment was rendered, the statute of limitations of six years bad barred an action at law on the note on which it is founded. Though secured by the mortgage, which was under seal, the note was the principal, the mortgage but an incident; and the character of the note, as a mere simple contract, subject to the bar of the statute of six years, was unchanged. — Ang. on Lim. § 92 ; Jackson v. Sackett, 7 Wend. 94. A mortgagee has several distinct remedies, which he may pursue, when there is default in the payment of the mortgage debt; and there are defenses peculiar to each of these remedies. An action at law will lie on the debt; but it is subject to defenses to which any similar action would be subject on a debt of like character; and that it is secured and recognized by the mortgage, a sealed instrument, will not relieve it from such defenses. Ejectment for the recovery of the mortgaged premises can be supported, and is subject to the defenses peculiar to that action; and a bill in equity to foreclose may be maintained. The statute of limitations may operate a bar to the action on the debt, or to the action of ejectment; while the lapse of twenty years from the law day, without recognition or admission of the existence of the debt, creating the presumption of payment, will alone bar the right of foreclosure.- — Duval v. McLoskey, 1 Ala. 708; Inge v. Boardman, 2 Ala. 331; Cullom v. Branch Bank Mobile, 23 Ala. 797.

A partial payment, before the bar of the statute is complete, or an unconditional promise in writing, signed by the party to be charged thereby, alone prevents the operation of the statute — no other act, promise, or acknowledgment's sufficient, in this State. — Code of 1876, § 3240. The partial payment is a satisfaction, an extinguishment, pro tanto, of the debt; to its extent, the obligation of the contract is performed and discharged — it is the remainder of the debt only, which is withdrawn from the past operation of the statute. True, the bill avers the bills of exchange, drawn by Robert Y. Ware, were a partial payment of the debt; but yet it also avers they were for the full amount of the debt- unpaid. The amendment proposed, if allowed by the chancellor, would not have varied these averments ; and taking them as true, the bills were, if a payment at all, a payment in full, and not a partial payment. They are equal in amount to the entire debt; and there is no averment that they were accepted as payment of a specific part, and not of the whole debt. Denominating them as a partial payment, and yet affording no means of showing what part of the original debt was paid, and what part was withdrawn from the past operation of the statute, can not convert them into a partial payment, which the statute contemplates to remove its bar.

The chancellor did not err in declining to retain the bill, and proceed to a decree of foreclosure of the mortgage on the second amended bill. As we have said, the original bill was properly filed, and could have been filed by the appellant, only on behalf of himself and^all other creditors of the testator. It was not filed to enforce a separate, individual right of the appellant, but a right he had in common with others. If the amendment was allowed to convert the suit into one for a foreclosure of tlie mortgage, it is obvious there would be a change of the right in which the appellant sued originally, of the purpose of the suit, and of the relief which could be granted. Amendments to original bills can not be allowed, and made the basis of relief, which change the entire character of the suit, and the character in which the complainant originally sues.

Let the decree be affirmed.