Brown v. . McKee

Shepherd, J.: The first exception is addressed to the refusal of the Court to make T. B. McKee, administrator of William Walker, and the other sureties to his administration bond, parties to this action. This exception cannot be sustained. Flack v. Dawson, 69 N. C., 42; Syme v. Bunting, 86 N. C., 175; The Code, § 186. The second exception is also without merit. The defendant W. H. Walker was sued as the administrator of J. B. Walker, who was a surety on the administration bond of T. B. McKee. He was duly served with process, but failed to appear, and as the matters of defence which he now offers to establish could have been asserted by him in that action, he is concluded by the judgment, and cannot now litigate them. The third exception is to the admission of parol testimony to show the date of the administration of the said W. H. Walker. *392 It does not appear that such testimony was introduced: the case simply stating that “evidence” was admitted upon that point. Conceding, however, that such testimony was inadmissible, and that the question could only have been determined by the record of the appointment, and that it should have been tried upon inspection by the Court, we are unable to see how the appellant was in any way prejudiced. The only purpose and effect of the evidence was to prove •that the said defendant administered prior to the 1st of July, 1869, and this is clearly admitted by his answer, in which he states that his intestate died in 1862, and that he, as administrator, settled the estate in August, 1864. The exception must therefore be overruled. The remaining exception involves an inquiry into the nature of the judgment rendered against the said Walker in the former action as administrator. His intestate was one of the sureties on the administration bond of T. B. McKee, and these plaintiffs brought an action on said bond against the principal and sureties. The said Walker, as administrator of J. B. Walker, was made a party defendant, but failed to appear or make any de'ence whatever. Upon a reference it was found that McKee was considerably indebted as administrator fo the plaintiffs, and the report was confirmed and judgment rendered against all of the defendants. It is insisted by the defendant Walker that this judgment did not have the effect of fixing him with assets, and that he is now at liberty to show that he has properly administered the estate, and that the lands of his intestate should be subjected to the payment of the claims of the plaintiffs. While the judgment is somewhat informal it expressly includes all of the defendants, and the most favorable view in which it can be considered as to Walker is that it is a judgment against him as administrator. As the administration was prior to the first day of July, 1869, this case is governed by the laws existing at that time (The Code, §§ 1476, 1477), and *393 we think it well settled that under the former practice “a judgment against an executor or administrator, whether by default or demurrer, or upon any plea pleaded by an executor or administrator except plane adviinistravit, or admitting assets to such a sum, and rims ultra, is conclusive upon him that he has assets to satisfy such judgment.” Iredell Executors, 673; Eaton’s Forms, Note, 225. In Ruggles v. Shearman, 14 Johns., 446, it was held that “if an executor or administrator confesses a judgment or suffers judgment by default, he is estopped from denying assets to the extent of the judgment as far as regards the plaintiff therein.” To the same effect are Triel v. Edwards, 6 Modern Rep., 368; Rock v. Leighton, 1 Salk, 310; Skelton v. Hawling, 1 Wilson, 258; Wheatley v. Lane, 1 Saunders, 216, and numerous other cases. This doctrine is considered as firmly established by modern writers (2 American Law of Administrators, 792), and is recognized to have been the former law in this State in McDowell v. Asbury, 66 N. C., 444. In that case it is said that “ where a personal representative is sued, he must protect himself by proper pleading,” and the administrator having withdrawn his plea of “fully administered,” it was held that a judgment against him for “ the debt of his intestate ” fixed him with assets. So in Hooks v. Moses, 8.Iredell, 88, where a judgment was confessed by an administrator before a Justice of the Peace for the amount of the debt, and nothing was said about assets, ii. was held in an action upon this judgment that the plea of plene administravit was immaterial, as the former judgment was conclusive against the defendant upon that question. The case of Armistead v. Harramond, 4 Hawks, 339, is not in conflict with the above authorities, as it was there simply held that a judgment against an administrator for the debt of his intestate, while evidence of the debt and of assets, did not, as to the latter, bind his sureties, who were not parties to the action. *394 It is also contended that the complaint in the former action should have alleged that the defendant Walker was possessed of assets, and our attention was called to the declaration in Platt v. Robbins, 1 Johns., 276, which contains such an averment. The case is not in point, as it was an action of debt upon a former judgment suggesting a devastavit, which was one of the methods of enforcing a judgment after a return nulla bona upon an execution de bonis testatoris. Under the former system an action against an administrator for the recovery of a debt due by his intestate, in itself implied a charge that the administrator had such assets; and, as we have seen, it was necessary for him to protect himself against liability by proper pleas. Indeed, it was a common practice to declare simply upon the debt of the intestate, and if there was a judgment by default or on plea as to the assets, the judgment was regarded as fixing them in the hands of the administrator. The manner of enforcing such judgments is elaborately considered in McDowell v. Asbury, supra, and need not be repeated here. Suffice it to say that if the Sheriff returned nulla bona to the fieri facias de bonis testatoris, the plaintiff must generally have proceeded by scire facias in order to have obtained 'an execution de bonis pro priis, and in such proceeding, while the defendant could make any defence arising subsequent to the judgment fixing him with assets (as for instance, their loss or destruction under excusable circumstances), he would be precluded from setting up any matter which could have been pleaded before the rendition of such judgment. The same principle applies in this proceeding, but the only matter which the said defendant relied upon could have been pleaded before the judgment, and is therefore inadmissible. The objection that the former action should have been commenced in the name of the State, would have been good if taken in apt time (Carmichal v. Moore, 88 N. C., 29), but *395 cannot avail the defendant under the circumstances of this case. Our conclusion is, that as Walker, administrator, is fixed with assets, and as it is not shoym that he and his sureties are insolvent (Latham v. Bell, 69 N. C., 135, and Lilly v. Wooley, 94 N. C., 412), the land should not be sold, and the iudgment against the said Walker should be affirmed. Affirmed.