Ashby v. Bell's Adm'r

Lewis, P., after stating the case, delivered tbe opinion of the court. It is clear that, inasmuch as there was no exception taken by the appellant in the lower court to the commissioner’s report, the asserted claim must be held to be established as for rent due the estate of the plaintiff’s intestate, and that the decree must be affirmed, unless on other grounds the contention of the appellant is well founded.' For it is settled by repeated decisions of this court, that commissioners’ “reports not excepted to, cannot be impeached before an appellate court in relation to matters which may he affected by extraneous testimony.” Peters v. Necille’s trustee, 26 Gratt. 549; Cole’s committee v. Cole’s administrator, 29 Id. 365; Simmons v. Simmons’ administrator, 33 Id. 451. It is insisted, however, that the claim is barred by the statute of limitations, and that the circuit court erred in sustaining the plaintiff’s exception to the commissioner’s report. On the other hand, it is contended that the running of the statute was suspended by the issuing of the distress warrant, on the 23d November, 1865. And it would seem from the language of the decree appealed from that, in the opinion of the circuit court, the warrant was actually levied, since it is held that “a lien .was effected” on the goods and chattels of the estate of Jonas Bell, deceased; and that, therefore, the plaintiff’s right to recover was not barred by the statute. The answer, however, which is responsive to the hill, denies that the warrant was levied; and it is evident from the terms of the report that such was the conclusion of the commissioner. At all events, he ■does not report that there was a levy, but says: “ a distress warrant was issued * * which with the sheriff’s return thereon, * * is returned herewith.” Looking, then, to the return, we find that it does not show that a levy was made, but that the personalty had been inven816 tolled and advertised for sale by the sheriff as administrator when the warrant was received; and further “that the plaintiff, Emily Bell, directed that the sale should proceed upon the terms as advertised * * which was accordingly done.” And then the return concludes as follows: “I have the bonds taken at the sale, and am ready, upon the determination of the court * * to hand them over to whomsoever they may be adjudged to belong.” It is to be observed that no question has been raised, either here „or in the lower court, as to the regularity or legality of this return. On the contrary, the same has been treated throughout as regular and as competent evidence of the facts stated therein. And this being so, we are constrained to conclude that the warrant was returned without having been levied. For why submit to the court the determination of the question as to whom the proceeds of the sale were payable, if there had been a levy and sale under the distress warrant? If such had been the case, the mandate of the warrant itself would have been a sufficient guide for the officer’s action in the premises, without invoking the direction of the county court, especially as there were no conflicting claims of creditors to the fund. In short, it is manifest that the only reasonable inference from the return is, that the property was sold by the sheriff in his capacity as administrator, and that no levy under the warrant was made, in consequence of the instructions of the plaintiff herself. The warrant appears to have been returned to the clerk’s office of the county court and there filed, and no action seems to have been taken in the matter until the institution of the present suit, nearly fifteen years thereafter. But it is unnecessary to place the decision of the case on the ground that the warrant was in fact not levied. Suppose it had been levied. This is not a suit to enforce a lien upon specific property; and if it were, there is no property upon which the alleged lien could be enforced, for all the effects of the estate [817] were sold by the administrator, in 1865, and presumably went into the hands of purchasers for valuable consideration, without notice of the claim of the plaintiff’s intestate. In Franklin’s adm’r v. Depriest, 13 Gratt. 257, a suit in equity was instituted, alleging a devastavit on the part of the executor, and praying a decree for the plaintiff’s claim. The case resulted in a protracted litigation, coming to this court, then going back for further proceedings to the circuit court, and finally a decree was entered in the plaintiff’s favor. Thereupon an action at law on the executorial bond was begun, to recover the amount of the said decree; and it was held, in reply to the defence of the statute of limitations, that the statute did not begin to run in favor of the surety until the entry of the-decree in the equity suit ascertaining the liability of the executor. In Leake’s ex’or v. Leake et als, 75 Va. 793, a creditor of the estate brought an action of assumpsit against the executor, in 1860, and recovered a judgment therein, in June, 1870. And within one year thereafter he filed his bill in equity against the executor and his sureties for satisfaction of the judgment. The defendants relied on the ex parte settlements of the executor, and insisted that the plaintiff’s right to surcharge and falsify the same was barred after the lapse of five years. But this defence was overruled, this court saying that if there is any limitation in case of a devastavit, at all, it is certainly not less than ten years. A similar defence was relied on by the executor and his sureties, and with the same result, in the subsequent case of Sharpe’s ex’ors v. Rock wood et als, 78 Va. 24, the court holding that the pendency of another suit by other pai'ties1 against the executor, which enured to the benefit of the plaintiff in the suit then under consideration, effectually protected the claim of the plaintiff from the statutory bar attempted to be set up. But very different from these cases is the present case. Here, although the claim is alleged in the bill to have accrued prior [818] to the year 1865, yet ’no suit was instituted to recover it, until 1880. And to bold that tbe mere issuing of a distress warrant, fifteen years before tbe suit was instituted, which was returned unexecuted, and which has remained filed in tbe clerk’s office, without vitality or effect, until tbe present time, operated to suspend tbe running of tbe statute of limitations, would be to announce a doctrine unsupported by principle or authority. We are of opinion, therefore, that tbe right of action accrued when tbe warrant was returned by the sheriff, if not before, and that the case is within the statute, which enacts that upon the bond of a sheriff acting as a personal representative, suit shall be brought within ten years after the right of action shall have first accrued; which provision, however, applies only to the sureties on the bond, and not to the principal himself or his personal representative. Code 1873, ch. 146, secs. 8 and 9; 4 Minor’s lusts. 508. Nor is the case of the appellant affected by anything contained in the last-mentioned section, which, among other things, provides that the right of action in favor of one obtaining execution against a personal representative, or to whom payment or delivery of estate in the hands of such representative shall be ordered by a court acting upon his account, “ shall be deemed to have first accrued from the return-day of such execution, or from the time of the right to require payment or delivery upon such order, whichever shall happen first.” For here there has been no execution against the appellant’s principal, nor, prior to the institution of the present suit, any settlement of his accounts. The time at which the right of action accrued must, therefore, be determined independently of the statute. Franklin’s adm’r v. Depriest, supra. But the appellee insists that, conceding this to be true, the decree having been taken for confessed against all the defendants, and only one of them, namely, the appellant here, having afterwards answered, the decree must stand as against all, except the appellant. This position, however, is not well taken. The rule is, that where in a suit on a joint obligation, the bill [819] is taken for confessed, and one of several defendants appears and disproves the plaintiff’s case, unless it be on some matter of defence which is purely personal to himself, the plaintiff' is not entitled to a decree against the others, but the bill will be dismissed as to all the defendants. In Cartigue v. Raymond, 4 Leigh, 579, a bill was filed by a distributee against an administrator and his surety, alleging that the administrator had not duly accounted, and praying that an account be ordered, etc. The bill was taken for confessed as to the administrator, but the surety answered, and showed that on a final settlement, the plaintiff had released the administrator. The bill was dismissed as to both defendants, and on appeal to this court the decree was affirmed. The same doctrine had previously been held in Clason v. Morris, 10 Johns. 525, wherein, speaking for the court, Spencer, J., said: “I believe not a case can be found in which it is insinuated that where there are two defendants having a joint interest, and one appears and answers, and disproves the plaintiff’s case, that the plaintiff can have a decree against the other who had made default, and against whom the hill was taken pro confesso. It would be unreasonable to hold that because one of the defendants had made default, the plaintiff should have a decree even.against him, when the court is satisfied from the proofs offered by the other, that in fact the plaintiff’ is not entitled to a decree.” See also 2 Barton’s Chy. Pr. sec. 240. The rule, however, as we have said, does not apply where the defence set up by the defendant who answers is not common to all the defendants: as, for example, when the defence is infancy, bankruptcy, and the like. In such case, the decree against those who have made default is not affected, but will remain in full force as against them. And so here the appellee contends that the defence of the statute of limitations is a personal privilege, and to avail must be pleaded by the party who would take advantage of it. To a certain extent this proposition is undeniable. It is true, [820] it is not for the court ex mero motu to interpose the defence in behalf of a defendant who does not choose to interpose it for himself. For, as was said by Judge Richardson in Smith v. Hutchinson, 78 Va. 683, “the court sits to determine all questions of law and practice under established rules, and not to interpose or plead * * special defences for defendants, who, by their conduct in failing to appear and make defence, in effect say that they cannot gainsay the plaintiff’s right.” But here the interest of the defendants is joint, and the de-fence set up by the appellant is, that the plaintiff’s right of action is barred, not as against him alone, but all the sureties on his principal’s bond. And it is difficult to see why the defence thus relied on should not enure to the benefit of all the sureties, and with the same effect, as if, instead of that defence, the appellant had pleaded and proved a release by the plaintiff, or payment in full of the asserted claim, or any other defence going to the foundation of the plaintiff’s right to a decree at all. Certainly no authority has been cited to support any such distinction as that contended for by the appellee, and it is perhaps safe to say none can be found. For these reasons we are of opinion that the decree, so far as it affects the appellant and his co-sureties, is erroneous, and to that extent must be reversed. DECREE REVERSED IN PART.