Perkins v. Cartmell's Adm'r.

Tried at June term, 1845, before Judges Booth, Harrington, Milligan and Hazzard. The bill stated that Caleb Perkins, died 28th of June, 1804, seized of real and personal property, and by his will dated 24th May, 1804, bequeathed to his daughter Margaret, wife of Thomas Cartmell, one hundred pounds, subject to the deduction of testator's book account against her, to be paid in three years after testator's death, by his son, Joseph Perkins, out of certain real estate devised to him, and made his said son and one Isaac Stevenson, executors; who proved the will and took possession of the personal property, and said Joseph, of the real estate devised to him as aforesaid, charged as aforesaid. His daughter Margaret continued under coverture until the 9th of January, 1838, when her husband, Thomas Cartmell, died. She survived him until the 24th of Dec., 1841, and died, leaving five children, of whom complainant, her administrator, is one. He administered on the 16th of September, 1842. The said legacy was never paid to Thomas Cartmell in his life time, nor to his widow, nor any part of it, though frequently demanded. It survived to the said Margaret on the death of her husband, and complainant as her administrator, is entitled to it; with interest from the 28th of June, 1807. The bill prayed an account, and for payment of the legacy, and for further relief, c. *Page 271 The answer admitted the material statements of the bill, but denied that any demand had been made for said legacy for more thanthirty years; that the legacy was in fact satisfied by a book account left by testator, to the amount of £50 5s.; and a note of hand due him from said Thomas Cartmell, the husband, of £45; which was not collected by this defendant, being considered both by Thomas Cartmell and himself, as applicable to the legacy, and to be deducted therefrom; and the said Thomas Cartmell, bought at the vendue, articles more than sufficient to pay the balance of said legacy; so that for more than thirty years said legacy had been regarded by all parties as paid: and relied on the lapse of time as a bar to the demand. The only important facts proved by the depositions were, that complainant called on defendant before filing the bill, to examine the testator's books and come to a settlement; that, there was a charge on said books of £11 5s., against Margaret Cartmell, and the defendant showed a note of Thomas Cartmell, deceased, to the testator, for £45 5s., and a vendue list containing articles purchased at the vendue, by Thomas Cartmell, amounting to $36, which defendant said were the only charges he had against Thomas Cartmell, deceased, or his wife; and that defendant declined a reference. On the hearing of the cause before the chancellor, an interlocutory decree was made according to the prayer of the bill; for which he now assigned the following reasons: I suspended my judgment on the plea of actual payment but the book shown me was so altered that I suspected it. I thought also from the devisee and executor, who was still alive, presenting Thomas Cartmell's note, still in his possession, that there had never been a settlement or he would have delivered it up. I thought these were rebutting circumstances to the presumption of payment. In addition to this I considered the settled rule of equity, in a matter of presumption, to be, that they followed the acts of limitation both as to the bar and the exceptions. In analogy to the statutes of limitation I thought the widow's claim protected by her coverture.a *Page 272 The appeal was from this decree, and was argued by Rogers, jr., for appellant; and Gilpin, for appellee; on 1st. The evidence of *Page 273 payment. 2d. The presumption of payment. 3d. The application of the act of limitation. Mr. Rogers, cited, 2 Ves. jr. 11; 3 Bro. Ch. Ca. 639,n.; 4 Bro. Ch. Rep. 214-57; 4 Eng. Chy. Rep. 521; 8 Bligh. 622; 2 Iredell's Eq. Rep. 282; 13 Pick. Rep. 393; 9 Pet. Rep. 405; 17 Ibid 197. Mr. Gilpin, cited, 2 Story's Eq. 505, sec. 1520; 3 Bro.Ch. Rep. 527, n. 7; 1 Sch. Lef. 414-39; 2 Ibid 607-29-42; 3 P. Wms. 287, n. 6; 6 Cond. Rep. 58, (10 Wheat. 152;) 1 Law Lib. 35, (Blansh. on Lim.) The Court reversed the decree of the chancellor and dismissed the the complainant's bill. a The chancellor subsequently handed to the reporter the reasons for his interlocutory decree, more at length. On the subject of limitations in equity, he remarked: — "I admit in all oases to which the statute of limitation can be applied, it is a good plea in equity as well as at law. The statute operates as a bar to the remedy at law. and is applied by analogy in equity, and therefore, cannot be applied to those trusts which are the mere creatures of equity, for there is no ground in such cases for comparison; but when the same subject matter of demand in equity can also be made the subject or cause of action at law, the rule of analogy applies in all its force. In Bond vs. Hopkins, 1 Sch. Lef. 413, Lord Hardwicke observes, `the statute of limitations does not apply in terms to proceedings in courts of equity, but equitable titles are affected by analogy to it.' In Hovenden vs. Lord Annesley, 2 Sch. Lef. 607, Lord Redesdale went more at large into the doctrine of limitation of suits in equity. The principle of the last case is, that where the party has a legal as well as an equitable remedy for the same cause, if the equitable title be not acted on in the same time the legal title should be, it is barred. In the case of Kane vs. Bloodgood, Chancellor Kent takes it for granted as the assumed and. settled doctrine, that an action at law will not lie in the case of a mere charge upon land where there is no personal undertaking. (7Johns. Ch. Rep. p. 113.) Chief Justice Spencer, in a case reported, 20 Johns. 570, 610, after adverting with approbation to the opinion of Lord Hardwicke, in Sturt vs. Mellish, 2Atk. 610, and showing that the plaintiff had ample remedy at law, observed, `I have therefore, no hesitation in saying that in a case where there is a concurrent jurisdiction in the courts of common law and equity, the rule must be the same, and the statute of limitations may be pleaded with the same effect in one court as in the other. In cases of fraud, peculiarly, appropriately and exclusively the objects of equity jurisdiction, according to the established doctrine, the statute cannot be pleaded.' If in the present case, the legacy had been payable by the executor out of the personal effects, then the jurisdiction of the courts of common law and equity, upon such a cause of action being concurrent, the analogy would exist and the statute would apply, extending to the wife surviving, the three years according to the exception. For by the act in Dig. Del. Laws, p. 228, an action of assumpsit may be maintained against an executor or administrator, for a legacy or a distributive share. Assetts in the hands of an executor or administrator to pay a legacy, shall create a legal liability and raise a consequent promise to pay it. `This action shallnot lie for a legacy which is either directly or byimplication the subject of a Trust.' The claim made in this suit, being for a sum charged by will on real estate devised and to be paid therefrom by the devisee, is a trust, only capable of being enforced in a court of equity, which has the exclusive jurisdiction, and therefore must be, according to the rule established by all the cases, excluded from the operation of the statute of limitations." The Chief Justice delivered the opinion of the court.