Stem v. Cox

Tuck, J., delivered the opinion of this court-. William Swann died seized of land in Charles county, and left children, of whom the appellant, Mrs. Stem, was one. Such proceedings were had in the county court, under the Act of 1820, eh. 191, for the division of his estate, that James Swann, the eldest son, elected to take the land at the valuation of the commissioners, and on the 27th of March 1823, gave bond to the State for the payment to the other heirs of their proportions, with W. Latimer and J. H. Hanson as liis sureties. He died leaving two children, George and James, both of whom are dead; and George, having by the death of his brother James succeeded to his interest in the land, conveyed it to Hugh Cox, on the 15th of December 1842, who conveyed it to Wm. Holmes, on the 18th of September 1843. Cox and Holmes are also dead. The appellees, S. and W. Cox, are the sons and administrators of the former, and Alexander Holmes is the son and executor of the latter. Latimer, one of the sureties, is dead, and Mrs. Marshall is his executrix. The present bill was filed by Stem and wife, in behalf of themselves and the other children of Wm. Swann, to enforce payment of the amounts severally due them on the bond of their brother, James. Hanson, the other surety, was not summoned, though made a defendant by the bill; so that the parties now before the court, as defendants, are the administrators of Cox, the executrix of Latimer, and the executor of Holmes, but his heirs or devisees are not parties. The administrators of Hugh Cox demurred to the bill, upon the grounds that it does not disclose a case which would entitle the complainants to relief against them, and because the claim is barred by limitations and lapse of time. The executrix of Latimer likewise demurred, upon the grounds taken in the demurrer of Cox’s administrators, and upon the further ground, that the remedy of the complainants as against her was (if any existed) purely a legal one, and not, there» [538] fore, cognizable in a court of equity; and the special judge below, by his decree of the 30th of June 1858, adjudged in favor of these appellees, upon both demurrers. The executor of Win. Holmes, the other appellee, filed his answer to the bill, alleging payment; also, denying his liability, and pleading in bar of the complainants’ alleged claim the statute of limitations and lapse of time; and upon final hearing, on the 31st of July 1858, the bill was dismissed. The complainants appealed from this last decree, but not from that of the 30th of June; notwithstanding this, however, the ruling upon the demurrers maybe reviewed upon the present appeal. Act of 1830, ch. 185. Dugan vs. Gittings, 3 Gill, 138. White vs. White, 5 Gill, 359, 382. Looking to the case as presented by the record, we are not aware of any rule of pleading which empowers a party, in the condition of these complainants, to proceed against either of the defendants; nor have we been able to discover any ground for joining them in one suit. Cox bought the land and sold it to Holmes; but we have not been informed how this fact gave the heirs of William Swann any cause of action against the personal representatives of either of these persons, whatever claim they might have against the land in the hands of parties claiming title. And so of Latimer and his executrix. His was merely a personal liability as surety on the bond, and nothing is shown why his personal estate should be brought into equity for settlement, even conceding that his executrix could be properly joined with the others. It is manifest that relief cannot be granted against the defendants as representing their respective decedents in respect to the personal estate of each, in which capacity alone they are sued, without bringing into court the administration of these three estates, and mingling in one proceeding matters which have no manner of connection, to be defended' by parties representing different and distinct interests; and if the other creditors of these deceased persons should, as they may, become necessary parties in marshalling the assets, the complexity and confusion would be increased. Besides, no one af the defendants has, or represents any person who has, an [539] interest in, or who appears to be concerned with, the land, to ■charge which seems to be the chief object of the bill, and it is well settled, that all persons interested in defeating such claim should be before the court. Story’s Eq. Pl., sec. 217, 530. White vs. While, 5 Gill, 382. Ridgely vs. Iglehart, 8 G. & J., 49. (Decided January 31st, 1861.) In expressing our concurrence with the court below in dismissing the bill, we are not to be understood as having formed an opinion on the questions of limitations and lapse of time. It would be obviously improper to do so in the absence of parties interested in that defence. Decree affirmed, with costs„