Nichols v. Day

Bell, J. This appeal is well taken, if the claim of Daniel J*. Day can be shown to be unfounded or fraudulent. It is contended that the judgment is conclusive as to this claim, until it is set aside or .reversed, against the estate, and upon all parties, and therefore license was properly granted to sell real estate to pay it. *■ Though judgments rendered by a proper court are conclusive, till reversed, against parties and privies, yet generally they are not so against strangers. The parties to this proceeding are the administratrix, who petitions for the license, and one of the heirs, who resists it. The administratrix represents the estate, and all interested in the estate, who must claim through her, but in any case where the claim of a party is set up in opposition to her, they stand in the position of strangers. Thus on the settlement of the administration account, the creditors and the heirs are not concluded by a. recovery against the administratrix, but they may show that any payment was improperly made; and this right will not be impaired by proof that a judgment has been recovered for the amount, if it can be shown that the judgment was collusively obtained. At common law a plea of judgments recovered and no assets ultra, is a good plea for an administrator, but it is a good replication, that such judgment was either recovered by collusion, or kept alive by fraud. Tresham’s Case, 9 Co. 110; Sherwood v. Jonson, 1 Wend. 443; Hoit v. Holcomb, 3 Fost. 549. [138] In the present case the position of the appellant is that of opposition to the administratrix. He claims nothing under her, and is entitled to show, if he can, that he is not bound by her proceedings. She has allowed a judgment to be recovered against her, by which she is finally bound; she now asks the authority of the Court of Probate to apply to the payment of it property which has descended from her intestate to the appellant, and over which she has none but a modified control, under such license. As between the estate and the claimant, all parties interested in the estate under administration are bound, but when the claimant stands on one side, and the question arises between the administratrix and other creditors, or heirs, they are not bound. At common law a judgment against the administrator binds the estate under administration, but it does not bind the heir at law of the real estate, because the real estate constitutes no part of the assets under administration. The heirs may in general show that a judgment was collusively recovered upon a debt known not to be due, in any proceeding where their interest is at variance with those of the administrator, and in opposition to his claims. It becomes, then, necessary to inquire whether there is any thing in the facts shown in this case to distinguish it from the ordinary case of a judgment recovered against an administrator. And first, it is said that the claim of Daniel J. Day, having been rejected by the commissioner, no notice of the appeal was served on the administi’atrix within the period of thirty days prescribed by the statute. This objection, if true in fact, as we take it not to be from the amended report, would have been fatal to the claim, if seasonably insisted upon. But it is a general rule, that objections to the regularity of the proceedings, which are substantially of the nature of pleas in abatement, are waived by a neglect to take advantage of them at the earliest reasonable and practicable opportunity. The appearance of the administratrix without objection, and her agreement to submit the claim to a reference, was a waiver of all objection on her part, by [139] ■which she is concluded. The utmost use which could be made of these facts, might be as evidence of collusion on her part with the claimant, and her neglect to enter any appearance, which is another objection, would fall into the same class. An appearance having been specially entered for the heirs in the defence, the submission by the administratrix to a reference, without consulting the heirs, would have the same unfavorable aspect. The appeal was taken by the heirs and not by her ; it was taken by them for the protection of their own interests in the real estate descended to them, with which she ought not to interfere. If the heirs had suffered the case to proceed without further interference by them, they would have stood in a position to have treated her course as fraudulent towards them, because they might contend it was collusive with the claimant. But it appeal’s, that, though present in court, the counsel for the heirs submitted to the agreement for a reference. He raised no question and made no objection to the reference or to the referees ; and a hearing was had, at which the administratrix did not appear, but the heirs attended, and without making any protest, entered upon a defence. Of this hearing no formal notice was given to the heirs, but they made no objection on this account before the referees, but laid before them their evidence and arguments. Upon the report of the referees coming before the court, allowing the claim, no objection was made on any of these grounds, and it was accepted and judgment entered. It is obvious that there is a wide difference between a judgment thus rendered, and one of which the parties complaining Bad no notice, or in relation to which they had taken no active part. And the substantial question to be considered is, whether they can now claim to be considered as strangers, and thus entitled to impeach this judgment, or whether they ought not rather themselves to be regarded as parties to the proceeding, and consequently bound by it. The rule on this subject is thus laid down in Chamberlain v. Carlisle, 6 Fost. 551. “The record, when competent as evidence, binds both parties and privies ; all who have a mutual [140] or successive relationship to the same rights; privies in law, privies in blood, and privies in estate ; all who have the right to adduce testimony, or cross examine the witnesses introduced by the other side; all who have a right to defend the suit, or to control the proceedings, or appeal from the judgment. All others are strangers, and the judgment is not conclusive upon them.” In Burrill v. West, 2 N. H. 192, it is said, “ It is not necessary that he against whom a judgment is to be used as evidence should have been actually a party to the suit in which it was rendered. But in general, notiee of the suit, and an opportunity to be heard, seem indispensable to make the judgment evidence;” and in Thrasher v. Haines, 2 N. H. 443, “ a judgment may be evidence against strangers, as if a third person is answerable over for a defendant, and is notified of the proceeding, he will be bound; so, if the person can be shown to be the real party; Boynton v. Willard, 10 Pick. 166; or has agreed to be bound by the judgment; Patten v. Caldwell, 1 Dall. 419.” In the present case the appellant is shown to be the real party; that is, the party who alone took part in the trial of the former case. He was the party whose estate was answerable for the judgment recovered. Though formal notice to him is not shown, he was informed of the whole proceeding, and took the defence on himself. He had full opportunity to be heard, and was heard. He had the right to adduce evidence and to cross-examine the witnesses on the other side, and availed himself of both; he had the right to defend the suit, to control the proceedings, and to adopt any necessary steps for a further hearing, if required. Under these circumstances, he must be regarded as effectively a party, and must therefore be concluded by the judgment. Appeal dismissed.