Thruston v. Blackiston

Stewart, J., delivered the opinion of the Court. There are two questions involved in the case — -the one, as to the jurisdiction of the Court of Equity, over the sureties on the bond of the trustee, and the other, as to the effect of the plea of limitation. There is no doubt'as to the duty of the administrator of the deceased trustee to render an account of the trust. No error is shown in the proceedings resorted to, for the purpose of ascertaining the liability on the bond of the trustee. See Dent vs. Maddox, 4 Md., 522. It is well settled, by numerous decisions in the State, that ■ the jurisdiction of a Court of Equity will embrace this case, where the trustee has died, without the completion of the trust, and the ascertainment of his indebtedness. See Oyster vs. Annan, 1 G. & J., 450; Brooks vs. Brooke, 12 G. & J., 306; Scott vs. State, 2 Md., 284; Dent vs. Maddox, 4 Md., 522; State, &c., vs. Mayugh & Bell, 13 Md., 371; State, use of Boteler, vs. Digges, et al., 21 Md., 240. Nor does the Act of Limitation afford any bar to the relief sought by the bill. “ The debt or thing in action ” — the sum found to be due by the trustee, from the proceedings in the cause — has not been standing twelve years. Where relief is sought in a Court of- Equity, it is an ordinary rule of that Court that the cause of action or suit arises [509] as soon as the party has a right to apply for relief. Story’s Eq. Jur., sec. 1521. The Act of 1715, chap. 23, sec. 6, which is substantially incorporated into the Code, Article 57, sec. 3, together with the Act of 1729, ch. 24, sec. 21, does not admit of the construction insisted upon by the appellants. The language of the 21st section of the Act of 1729, chap. 24, in reference to testamentary and administration bonds, is very different from the terms of the 6th section of the Act of 1715, chap. 23, applicable to other bonds and specialties, generally. There had been some question, whether the Act of 1715, chap. 23, see. 6, applied to testamentary and administration bonds, and the 21st section of the Act of 1729, chap. 24, was enacted to embrace them. That section declares “that all actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds.” This clearly and expressly confines the right of action within twelve years from the passing of the bonds. But the 6th section of the Act of 1715, ch. 23, provides that no bond shall be good and pleadable, or admitted in evidence, after the principal debtor and creditor have been both dead twelve years, “or the debt, or thing in action above twelve years standing,” and not twelve years from the passing of the bond. The 3d section of the 57th Art. of the Code, incorporates the 6th section of the Act of 1715, ch. 23, and the 21st section of the Act of 1729, ch. 24, placing testamentary, administration or other bonds, (except sheriffs’ and constables’) judgments, recognizances or other specialties, except such as shall be taken for the use of the State, in the same category, and subject to the same construction as the instruments embraced by the 6th section of the Act of 1715, ch. 23. The bond in controversy here, was nob an administration or testamentary bond, and therefore not embraced by the Act of 1729, or subject to the construction to be given to that [510] Act, bat is governed by the provisions of the Act of 1715, ch. 23, section 6. (Decided 20th June, 1872.) Under the effect of the Act of Limitation, now operating, bonds are not pleadable after the principal debtor and creditor have been both dead twelve years, “ or the debt or thing in action, above twelve years standing.” If the Legislature had intended to confine the right of action to a period within twelve years from the passing of the instrument, language such as is employed in the 21st section of the Act of 1729, ch. 24, would have been used; to wit, that action shall be commenced thereon, within twelve years from the passing of the bond's. But other terms are employed, to wit; that they shall not be pleadable, &c., when the debt, or thing in action is above twelve years standing. Upon bonds, with condition for the payment of money at a future day, or for the performance of some duty, there is nothing in action until the expiration of the time limited for the payment of the money, (Glassgow’s Adm’r vs. Porter, et al., 1 H. & J., 109,) or until a breach of the condition occurs, Hall’s Adm’r vs. Creswell, et al., 12 G. & J., 47. The bond, with- condition for future performance, according to the meaning of the Act of Limitation, is not a debt, or thing in action, as soon as it is executed, because no suit could then, by its terms, be brought upon it, but when a breach occurs, or the condition is violated, the right of action accrues and limitation begins to run. The cases of Schell vs. The State, use of Sower, 3 H. & J., 538, and The State use of Chamberlin’s Exc’r vs. Wright, 4 H. & J., 148, relied upon by the appellants, and which we have carefully examined, are not in conflict with this view. "We find no error in the ruling of the Circuit Court, and its decree must be affirmed. Decree Affirmed. Miller, J., dissented.