Syme v. . Badger

Davis, J., (after stating the facts). George E. Badger died in 1866, and Delia H. Badger qualified as executrix of his. will in May, 1866. Mrs. Badger died in November, 1876,. and Thos. Badger qualified as her administrator on the 2d of January, 1877. This action was commenced on the 19th day of September, 1885, and all the defendants rely upon the seven years statute of limitation as a bar. Section 153, sub-section 2, of The Code, prescribes for the commencement of action “by any creditor of a deceased person, against his personal or real representative, within seven years next after the qualification of the executor or administrator and his making the advertisement required by law, for creditors of the deceased to present their claims, where no personal service of such notice in writing is made-upon the creditor; and a creditor thus barred of a recovery against the representative of any principal debtor, shall also-be barred of recovery against any surety to such debt.” This section, if applicable to the present action, is a complete bar to the plaintiffs’ recovery. But the plaintiffs insist,, that the cause of action is the devastavit of Mrs. Badger, as executrix, and relates back to the date of her qualification as such, and that it is governed by the law as it was prior to the 24th of August, 1868. The Code, §136, provides, that “this title,” which includes §153, “shall not extend to actions commenced before the 24th day of August, 1868, nor to- *204 cases where the right of action accrued before that date, but the statutes in force previous to that date shall be applicable to such actions and cases.” When did plaintiffs’ right of action accrue against the personal or real representative of Mrs. Badger? It is difficult for us to conceive of an answer to this question, that would fix the period prior to the existence of such a representative. This action is against the real representatives of Mrs. Badger, or their assignees, to subject her real estate, or itsproceeds, to the payment of a judgment rendered in favor of the plaintiff Andrew Syme, administrator de bonis non, &c., of George E. Badger, against her administrator, Thomas Badger, for a balance found to be due to her testator upon a settlement of her account as executrix. In Leach v. Jones, 86 N. C., 404; relied on by the plaintiffs to sustain the position that this cause of action relates back to the date of Mrs. Badger’s qualification as executrix, the question was, as to whether, in that case, the defendant Eliza H. Jones was entitled to a homestead in the land in controversy. She had qualified as executrix of L. Jones, deceased, in 1865, and upon a reference, there was a report made and confirmed in 1878, upon which she was adjudged guilty of a devastavit of the assets of her testator, and the judgment was against her, both as executrix and individually, by reason of the devastavit. She insisted, that she was not fixed with the devastavit until the report of the referee was confirmed by the judgment against her in 1878; the plaintiff, on the other hand, insisted that the devastavit was committed between the years 1865 and 1867, within which period it was her dutjq as the law then was, to settle the estate. The Court held that it was immaterial to inquire when the devastavit was committed, if prior to the commencement of the action, for the liability of the defendant attached upon her qualification as executrix in 1865. *205 If this action bad been commenced against Mrs. Badger as executrix in her life-time, and a judgment rendered against her as executrix, and individually, for the devastavit of the assets of her testator, the case of Leach v. Jones would settle it, for she could not have claimed the benefit of the Act of 1868. The law by which she was governed was that in force when she qualified as executrix; the law subjecting her personal and real representatives to the payment of her debts,, is that in force when her administrator qualified and gave the required notice. It is due and just to the memory of Mrs. Badger, that it should be stated that it is conceded by all, that the misapplication of the assets of her, testator was under advice upon which she relied, and under the mistaken, but honest belief, that being a creditor as well as a devisee of her testator, and the devise and bequest to her having been intended by him, and so expressed in his will, as a payment and discharge of what he owed her, she had the right to use and apply the assets as she did, and there was no wrong intent on her part. See the case of Syme, Adm’r, &c., v. Badger, Adm’r, &c., 92 N. C., 706. But the plaintiffs insist, that even if the action is governed by The Code, §153, sub-sec. 2, it is not barred, because it is in the nature of an equitable ft. fa. in aid of the judgment rendered at August Term, 1885, in the case of Andrew Syme, Adm’r, &c., et als., v. Thomas Badger; Adm’r, &c., et als., and for this lie relies: 1st. Upon the case of Hughes v. Whitaker, 84 N. C., 640. That case is distinguishable from this. It was commenced in 1877, by the creditors of the deceased debtor, L. H. B. Whitaker, against his executors and others, “ to secure the assets, personal, and such as were derived from a sale of the devised lands, which it is charged in the complaint, under a fraudulent combination among the defendants, have been illegally disposed of and appropriated to their own use.” The prayer is, that this pretended alienation *206 be declared void, and the property secured and placed in the hands of a receiver, to meet the claims of the creditors. The defendants, among other defences, relied upon the statutory bar of seven years, and to this the plaintiff replied that an action was commenced in the Superior Court of Law of Northampton county in 1867 or 1868, and within three years after the qualification of the defendants as executors, to recover, &c., and that the said action is still pending. Smith, C. J., says: “ Associating the facts alleged in the complaint, and in the replication, as the cause of action, the present suit aims to get hold of and secure funds belonging to the estate of the deceased debtor, which by alleged fraudulent contrivances, have passed into the hands of the other defendants, and which ought to be applicable to the recovery of the plaintiff, when his suit is favorably determined. * * * * * It is therefore in aid of and not a substitute for the pending suit. If the plaintiff, upon obtaining judgment in his first action, and failing to make his debt out of the executors, can then pursue the fraudulently alienated estate, and no delay can be imputed to defeat him, why may he not now pursue and secure it, to await the result of his other suit, so that it may not become fruitless ? * * * * The pleadings do not show when the fraudulent alienations were made, whether after the first action was commenced or before, nor when the fraud was first discovered, and the primary action for relief in cases where the Courts of Equity alone could afford it, as in the present case, is only barred after the lapse of the limited time from the discovery, which alone puts the statute in operation.” For this he cites C. C. P., §33, par. 9, (The Code, §251, par. 9,) Blount v. Parker, 78 N. C., 128, and Spruill v. Sanderson, 79 N. C., 466. In the case before us, there was no fraud or equitable element interposed to prevent the operation of the statute. The point is not made, but in that case the administration *207 was taken out prior to 1868, and it was not governed by the present statute.' 2. The plaintiff relies upon Badger v. Daniel, 79 N. C., 386, and Lilly v. Wooley, 94 N. C., 412. In the latter case, there is no reference in the opinion to the seven years statute, and the point was not before the Court, but the well settled doctrine is affirmed, that in the administration of the estate of a deceased debtor, his personal property must be first applied and exhausted before resort is had to the real estate. In that case, the obligors on the administration bond, except one, were insolvent, and he, though possessed ■of property in, and a resident of another State, had none in this. The Court below held, that this was a bar to any recovery against the debtor’s real estate, until the remedy against the solvent surety had been exhausted. This was held to be error, and this Court declared that the creditor residing in this State, need not pursue his remedy upon the administration bond against a surety to it in another, and ■exhaust this source, before he can resort to the debtor’s real estate found in this State. It was an action in the nature of a creditor’s bill, brought against both the administrator and the real representative, for the purpose of subjecting first, the personal property, and if insufficient, then the real property of the debtor to the payment of debts, and is authority for the position that the debtor may, where it is necessary to guard against the danger of loss from delay, sue the personal and real representative in the same action, without waiting an indefinite period for the settlement of the personal estate, before proceeding against the heir. The case of Badger v. Daniel throws no light upon the construction to be placed upon the statute under review. That was an action brought in 1871, upon a cause of action prior to 1868, and was clearly governed by the statutes in force prior to that date. *208 All statutes of limitation in this State were suspended from May 11th, 1861, to January 1st, 1870, and seven years had not elapsed from the latter date, before Whitfield was made-a party to the suit, which was in 1875. It is true that Ror>-MAN, J., says, that “ as his liability did not or does not accrue, until a failure of the personal estate derived from the testator to pay the plaintiff’s debt, he is not protected by the statute.” What statute ? Not §153, sub-sec. 2, of The Code, for that did not apply to the action, as it was governed by the law as it was prior to August 24th, 1868, which was the-Act of 1715, which declared that: “ Creditors of any deceased person shall make their claims within seven years after the death of such debtor, otherwise such creditor shall be barred.”’ Rev. Code, chap. 65, §11. By re-enactment from time to time, this continued to be-the law down to the 24th of August, 1868, and was the subject of careful and learned consideration in the cases of Rayner v. Watford, 2 Dev., 338 ; and Godley v. Taylor, 3 Dev., 179; and the construction then received, continued to be the settled law of this State as long as that Act remained in force. As the present act, by its express terms, fixes the same limit for actions against the real representative as against the personal, it may not be out of place to call attention to these-cases. In the former case, Ruffin, J., said : “ The Act of 1715 is in terms an unqualified bar, without any saving or exception in favor of any incapacity whatever. It seems to have been designed to be emphatically a statute of repose in favor of dead men’s estates, without a single exception ” And again, speaking exclusively for himself, he said, “ unless the death of the debtor be the terminus, if I may use that expression, from which the time runs, there is no limitation whatever. * * * The only limitation in the statute, is from the debtor’s death; and if the period begin not then, it can have no beginning nor ending, within this act.” *209 Again, in the case of Godley v. Taylor, the same eminent Judge, in his dissenting opinion, after presenting his own views as to the absolute bar of the statute, gives his adhesion to the law as settled by the Court, which he declares to be as follows: “ That if the debt be due at the death of the debtor, claim must be made within seven years from the death, otherwise, both the heir and executor are discharged : and that if the action arise after the death of the debtor, suit must be brought within seven years from the time the action accrued, or the heir and executor will in that case be also discharged; and if suit is brought against the executor within seven years after it arose, but after the expiration of the seven years from the death of the debtor, and the executor hath, at the time of suit brought, not paid over the assets, he shall answer the demand; but if he hath paid them over, he shall have the plea of fully administered found for him. But how it will be with the heir in this last case, is yet to be determined; though I take it, he is to be bound, in case there be no personal estate in anybody’s hands, provided he be sued by sci. fa. within seven years from the falling due of the demand, when that happens after the death of the ancestor.” The Act of 1846, changing essentially the mode of procedure to subject the real estate of the deceased debtor to the payment of his debts, was passed after the decision in Godley v. Taylor, but that, act did not in any way affect the statute of limitations, and any defence which the heir might have had to the sci. fa., was equally available upon the application of the executor or administrator for license to sell real estate to make assets, with the qualification that where the action was brought against -the heir within seven years after the qualification of the executor or administrator, he could not interpose the bar of the statute to a demand which had been reduced to judgment against the executor or administrator, unless he could show that it had been obtained by fraud or collusion. This *210 is clearly established by the case of Speer v. James, 94 N. C , 417; and the cases there cited. That was a creditor's suit, prosecuted against the administrator and heir at law. Administration was granted on the 21st day of August, 1879, and the action was commenced on the 18th day of January, 1882, (within seven years,) and the question now before us was not presented in that case, and this is the first time this Court has been called upon to construe §153, sub-sec. 2, so far as it relates to actions against the real representative. It has often been considered in actions against the personal representative, and it seems to be well settled, that when seven years have transpired after the qualification of the executor or administrator, before the commencement of the action, and due advertisement has been made as required by law, the statute is a bar. McKethan v. McGill, 83 N. C., 517; and the cases there cited; Cox v. Cox, 84 N. C., 138; Lawrence v. Norfleet, 90 N. C., 533 ; Worthy v. McIntosh, 90 N. C., 536. In the last cited case, Smith, C. J., saj^s: “ The present statute is an absolute and unqualified bar, when its conditions are complied with, and gives, as was intended, a repose to the estate, and puts an end to the claims against it, unless suspended under the provisions of §164 of The Code.” If this be the proper construction of the statute in respect to the “ personal representative,” it is difficult to see how the :same language in the same section, and same sentence, can .admit of a different construction with respect to the real representative. Reasoning from legislation upon a kindred subject, the construction should certainly be as strong in favor of the heir as the personal representative, for it is provided by statute, that conveyances made by the heir “ to bona fide purchasers for value and without notice, if made after two years from the grant of letters, shall be valid even as against creditors.” The Code, §1442. *211 It seems to have been the purpose of the Legislature not to leave obstructions in the way of the free alienations of lands for a long period. There is but one period fixed by the statute from which it begins to run to bar an action by the creditor of a deceased person against his personal or real representative, and that is the qualification of the executor or administrator and his making the advertisement required by law. It must begin to run then or never, and nothing will defeat its operation, except the disabilities mentioned in The Code, or such fraud or other matter of an equitable nature as would make it against equity and good conscience to rely upon the statute. There are no disabilities or other equitable ground interposed in this case. The Court below held that the seven years statute of limitation was a bar, and gave judgment for the defendant. There was no error. Judgment affirmed. Let this be certified. No error. Affirmed.