Ragland v. Calhoun's Adm'r

B. W. WALKER, J. The act of 1821 provided for the grant of administration to the sheriff or coroner of the county, where no other administrator had qualified, or where the administration had become vacant by death, removal or resignation ; and enacted that, in such case, “unless the judge shall otherwise order, no other oath, bond or security, shall be necessary to begiveiij than the bond and oath of office already taken and given by such sheriff or coroner; but, on his bond for the performance of the duties of his office, he and his securities shall be liable for his administration, and such bond maybe sued, and judgment from time to time recovered thereon, in the same manner as is or may be provided by lav? in case of other bonds of executors, administrators and guardians.’’-Clay’s Digest, 222, § 10. By the act of 1822 it was provided, that the act of 1821, above recited, “shall be taken and — 609 — strictly construed, so as to attach the administration to the offices of sheriff or coroner, and not to the person.”— Clay’s Digest, 228, § 10. The act of 1832 declares, that “no action, suit, or motion, shall be maintained against the security or securities of any sheriff, constable, or other public officer of this State, for any 'misfeasance, malfeasance, or other cause whatever, hereafter committed, unless the same be commenced or prosecuted within six-years next after the commission of the act complained.of.”— Clay’s Digest, 329, § 90. Spence was, by virtue of his office of sheriff, appointed administrator de bonis non, in March, 1842. His term of office, aud with it his administration under the appointment just referred to, expired in March, 1845. This proceeding against the petitioners, who were his sureties on his official bond as sheriff, and as such bound for his acts-as administrator de bonis own by virtue of his office, was not instituted until more than six years after the termination of his administration. The petitioners now invoke the protection of the special statute of 1832, above cited; and the question is, whether the limitation provided by that act applies to a default committed by a sheriff as administrator, when he has been appointed such administrator in his capacity of sheriff, and has qualified and acted as such under his general official bond. If the statute does apply to such a case, the result produced is certainly a singular one. Under the act of 1821, when a sheriff'is appointed administrator viriute officii, the court may require him to execute a special administration bond, or may permit him to qualify and act as administrator under his official bond as sheriff. The effect of the statute is, that when the latter course is adopted, the official bond becomes an administration bond, and the sheriff and his sureties are liable upon it, to the same extent as if they had executed an administration bond proper, under an order of the court. — See Gov. v. Davis, 9 Ala. 918. If the court should require the sheriff to execute a special administration bond, there can be no doubt that he and his sureties on such bond would be liable to the summary remedy provided by the act of 1832, (Clay’s Di — 610 — gest, 305, § 45;) and that this liability would be wholly uninfluenced by the statute of limitations of’ six years. If this be true, and if it also be true that the official bond’ of a sheriff, when appointed administrator by virtue of liis office, becomes an administration bond for the.purposes of such administration — that in fact the one bond is but a substitute for the other — it would seem to follow, that the sureties should be liable to the same remedies in the-one case as in the other; and it would look like defeating the purposes of the statute, were we to hold that, while the statute of limitations affords no protection to the sureties on a special administration bond, it should operate a complete bar in favor of the sureties on the official bond, which is but a substitute for an administration bond proper. ■ '' Moreover, the whole frame and phraseology of the act of 1832 point, as it seems to us, to official defaults, and not to omissions of duty by an, administrator. The act provided, that if the claim be in favor of an infant, or person non compos mentis, &c., the suit might be brought within three years after the termination of the disability; and by the 2d section it was provided, that for any malfeasance, misfeasance, or other cause of action, theretofore committed by any sheriff", &c., no suit, &c., should be maintained against his sureties, unless commenced within three years after the passage of that act. — Clay’s Digest, 329, § 91. Now, so far as the probate and circuit courts are concerned, no suit can, in the first instance, be maintained against the sureties of an administrator. The default and liability of their principal must be ascertained and fixed, before there can be any proceedings against them. Considering the delays which frequently attend litigation, it is scarcely presumable that, the legislature would have prescribed a three-years bar in this class of cases, to persons who had been disabled ■ from bringing suit, or to those who complained, of defaults committed before the statute was enacted. The statute, thus construed, would certainly be a hard one; for it would operate a bar in favor of the sureties, at the end of three years, when possibly, with his best diligence, the claimant could not, — 611 — within that time, place himself in a condition to commence proceedings against them. Our conclusion on this branch of the ease is, that the statute of limitations affords no protection.to the petitioners. 2. The petition alleges, that Spence’s term of office as sheriff, and with it his administration by virtue thereof, expired in March, 1845; that on 6th May, 1845, he was, upon his own application, appointed administrator de b mis non in his individual capacity, and gave ,a new bond, with a different set of sureties from those who were on his official bond as sheriff; that until after his second appointment, he had never been called upon to settle his administration, and had never refused to do so; and that from the time of his appointment as administrator virtute officii, until long after his appointment in his individual capacity, he was fully able at all times to have accounted for the assets he may have received. It is insisted, that Spence’s second, appointment in 1845, and the execution of his bond, and his qualification under that appointment, operated a transfer of the assets then on hand, to his second administration, and a consequent discharge of the sureties for the first administration from liability therefor ; and that from the passage of the act of 4th February, 1846, (Acts ’45-6, p. 14,) by which an administrator de bonis non was authorized to call the previous administrator to account for all assets which had been received and converted by him, if not from the date of the second appointment, the sureties upon his bond as sheriff were also discharged from any liability incurred for devastavits committed during the first administration. The principle on which this proposition is sought to be maintained is, that where a debt and credit — a right to demand, and an obligation to pay — co-exist, even for a moment, in the same person, the debt is extinguished by presumption of its payment. The argument is, that if the second administration had been conferred upon a stranger, he would have been at once entitled to receive from Spence all unadministered assets on hand ; and that after the passage of the act of 4th February, 1846, he could — 612 — have called Spence to a full account of his administration; that when the second administration was conferred, not upon a stranger, but upon Spence, the former administrator, he became entitled, in his new capacity, to a transfer of the unadministered assets; that on the passage of the act of 1846, he became entitled to an account of the past administration; and being thus both debtor and creditor, and incapable by recognized legal process of suing himself, or obtaining this account. and transfer’, the same results were produced by operation of law ; and Spence, as administrator by virtue of his office, and his sureties for that administration, were discharged from all liability on account thereof and a corresponding liability substituted in Spence as administrator in his individual capacity, and his sureties under this second appointment. — See Enicks v. Powell, 2 Strob. Eq. 196, 205-6-7 ; also, Trimmier v. Trial, 2 Bailey’s Law R. 486-7; Joyner v. Cooper, ib. 199; Simkins v. Cobb, ib. 60, 65. Whatever may be the ultimate decision of the interesting question here suggested, — which we leave open to be decided when it arises, not intending by anything we have said to intimate an opinion the one way or the other, — it can bo of no' avail to these petitioners, for the reason, that the probate court has, by its decree, determined that Spence was liable for the amount thereof, in his capacity as administrator de bonis non by virtue of his office of sheriff; and that his securities are concluded by that decreé. It is too well settled in this State to be any longer the subject of controversy, that, in the absence of fraud, the sureties of an administrator are, concluded by a final settlement of their principal in the probate court. — Lamkin v. Heyer, 19 Ala. 228, 233; Williamson v. Howell, 4 Ala. 693; Slatter v. Glover, 14 Ala. 648; McLure v. Colclough, 5 Ala. 69; Watts v. Gayle, 20 Ala. 817; Perkins v. Moore, 16 Ala. 16. It is shown by the record from the probate court, which is attached as an exhibit to the petition, that the proceeding which led to the decree against Spence, was a proceeding for the final settlement of his accounts as administrator de bonis non by virtue of Ms office of sheriff, under the appointment made in March, — 613 — 1842; and the decree which was rendered by the court is against “Solomon Spence, late sheriff of Talladega county, and as such administrator de bonis non ” &c. The settlement made was, upon its face, a settlement of the first administration, for which the petitioners were sureties. If, by reason of his second appointment and qualification, Spence was, in his capacity as administrator de bonis non by virtue, of his office, discharged from the sum charged against him in the account stated by the probate court, he could have shown this fact -on the final settlement, and protected himself from the decree which was rendered. This he did not do, and his failure is conclusive alike on him and'his sureties. The question cannot be again litigated in the probate court; for that would be to upset the entire settlement, for the mere purpose of contesting a fact, which could have been tried at the final settlement. The defense insisted on is, that Spence was liable for the assets of this'estate under his second administration, and not his first. But the decree óf the court ascertains that he was liable for them under his first appointment; and that decree concludes alike him and his sureties. — Lamkin v. Heyer, 19 Ala. 232; Williamson v. Howell, 4 Ala. 693 ; Slatter v. Glover, 14 Ala. 648 ; McLure v. Colclough, 5 Ala. 69, 70; Spence v. Savery, 25 Ala. 731. Decree affirmed. A. J. Walker, C. J., not sitting’.