Burgie v. Parks

Cooper, J., delivered the opinion of the court. Action for the breach of a covenant of warranty of title to land, brought by Bui’gie against the personal representatives of the covenantors. The verdict and judgment were in favor of the plaintiff for the damages claimed, but the pleas of fully administered were found in favor of the defendants; Both parties appealed in error. The covenantors, on whose covenant the suit was brought, were Samuel Williams and M. R. Hill. 'The first died testate, and, before November, 1867, — 85 — Smith Parks and B. M. Taylor were appointed by the county court of Gibson county executors of his-will, and qualified as such. M. R. Hill died intestate, and on the first Monday of November, 1867, the same county court appointed Spl. Hill administrator of his estate, and he qualified as such. This suit was commenced September 15, 1874, in the circuit court. of Dyer county, against Smith Parks, executor of Samuel "Williams, and Spl. Hill, admintrator of M. R. Hill, by an original summons issued to Dyer county and a counterpart summons to Gibson county. On September 25, 1874, the original summons was executed on Parks, and on the same day the service of the counterpart writ was acknowledged by Spl. Hill. Each of these defendants, on September 8, 1877, filed a plea in abatement for the non-joinder of B. M. Taylor, the executor of Williams, as a co-defendant. The plaintiff demurred to these pleas. During the argument ‘ of the demurrer, at the January term, 1878, the court, upon the application of the plaintiff, permitted him to amend his action by making Taylor a defendant, and, upon the amendment being made, sustained the demurrer. A counterpart summons was then issued to Gibson county on January 19, and executed on Taylor April 20, 1878. Each of the defendants then filed pleas in bar separately, the defenses relied on being covenants performed and the statute of limitations of two years and six months. On these pleas issues were joined. After the jury were sworn to try the cause, the bill — 86 — of exceptions says that the court, over the objection of the plaintiff, permitted Parks and Taylor to file pleas of fully administered, and required plaintiff to take issue on them. Hill’s plea of plene adminis-travit seems to 'have been filed at the same time, but the bill of exceptions contains nothing in] relation to it. No errors have been assigned by the plaintiff in his appeal. The defendants concede that the court had power, under our liberal statutes of jeofails, to allow the plaintiff to amend his writ and declaration by making B. M. Taylor, as executor, a party defendant, and that their pleas in abatement were thereby rendered of no avail: Code, secs. 2798, 2869. Their contention is that although the statute of limitations of two years in favor of the personal representatives of decedents had not barred the plaintiff’s action when the original writ > was issued in September, 1874, yet the bar had attached when the amendment was allowed and made in January, 1878, making B. M. Taylor a co-defendant. His honor, the trial judge, thought otherwise, and refused so to charge the jury. On the contrary, he charged that the statute of limitations ceased to run in favor of all the defendants when the original and first counterpart summons were issued. Error is assigned on this ruling. So far as the defendant Hill is concerned, there seems to be no reason to doubt the correctness of the charge. The suit was commenced as to him by the issuance of the original and counterpart summons — 87 — on the same day, he haying only acknowledged service of the latter. The court acquired jurisdiction hy the execution -of the original writ on Parks and the second counterpart on Taylor, and the fact that one or both of these parties might successfully defend the suit by a plea in bar of the statute of limitations, would' be no protection to Hill, the suit having been commenced as to him in time, the cause of action being joint and several, and the statute allowing the verdict and judgment to be good as to one although erroneous and void as to another: Code, sec. 2972 et seq.; Cox v. Crumley, 5 Lea, 529, 534. As to the defendant Parks, it seems equally clear, even if the bar of the statute was held to protect Taylor, that the verdict and judgment, upon common law principles, were also valid. If there are several executors, they may plead different pleas: If their pleas go to the merits touching the testator’s liability, the plea most to the testator’s advantage shall be received: Chaffe v. Kelland, 1 Rolle Abr., 929; Elwell v. Quash, 1 Stra., 20; Lyon v. Allison, 1 Watts, 172. If the pleas simply go to the liability of the executors, as where one pleads a good plea and the other a bad one, or where one pleads plene 'administravit, which is found in his favor, and the other does not, judgment may go in favor of one and against the other: Baldwin v. Church, cited, 1 Stra., 20; App v. Dreisbach, 2 Rawle, 287; Geddis v. Irvine, 5 Penn. St., 308; 3 Williams on Ex., 1942, (6 Am. Ed.). And the rule is general, if one of two persons jointly bound be sued, the omission — 88 — must be taken advantage of by plea in abatement, otherwise the judgment will be good: Coffee v. Eastland, Cooke, 159; Mayfield v. Stephenson, 6 Baxt., 397. And by statute in this State a suit may be prosecuted against one executor before a justice of the peace, where the other executors have moved from the county or State, and in any court against the executors who remain in the State, where the other executors have removed from the State: Code, sec. 2791 et seq. It is further provided that “ The same proceedings may be taken in judgments rendered in such separate suits, to subject the defendants for waste of assets, or to subject real estate descended to heirs, as when all the executors or administrators are sued”: Code, sec. 2794. And this must be the rule, independent of statute, in all cases in which «, plaintiff is permitted to recover judgment against one or more of several executors. But we think the charge of the trial judge upon the statute of limitations was correct under the circumstances of this case. Whether an amendment will relate back to the commencement of the suit, or operates only from its date, must depend upon whether it merely cures a defect in the original proceedings, or is in substance the commencement of a new litigation. In the latter event, this court has repeatedly held that the statute of limitations continues to run until the amendment is made. It was so held under the old regime, where the form of action was changed: Crofford v. Cothran, 2 Sneed, 492; and, under the new regime, where there is a — 89 — change of ilie ground of action: Trousdale v. Thomas, 3 Lea, 715; Allen v. Link, 5 Lea, 454; so, when a party has introduced a new cause of action: Miller v. Taylor, 6 Heis., 465; or when a party plaintiff is changed from an individual to a personal representative: Flatley v. M. & C. R. Co., 9 Heis., 230; Hagerty v. Hughes, 4 Baxt., 222. It is otherwise where the cause of action remains the same. .Thus, in ejectment, an additional count in the same title although under a new demise, will relate back to the commencement of the action to avoid the bar of the statute of limitations: Nance v. Thompson, 1 Sneed, 321; Augusta Manufacturing Company v. Vertrees, 4 Lea, 75. Aliter, if the new count be upon a different title: Corder v. Dolin, 4 Baxt., 238. In the case before us, the original cause of action was the breach of a covenant of warranty of title by Samuel Williams and M. R. Hill, and the parties to the action ay ere the personal representatives of the cov-enanters. The amendment neither changed the cause of action nor the character of the parties. It only added a co-executor of one of the covenanters, whose presence was necessary more for the sake of conformity than for utility. For, the executor first made a party could undoubtedly have made any defense which his co-executor could have made on the merits. The pleas in abatement were not filed until September, 1877, and the amendment was made at the January term, 1878. And it is difficult to see how 'the estate represented by the two executors can be protected by a plea of the statute of limitations — 90 — in which it is impossible for one of them to join -successfully. We think the statute cannot operate in favor of either. The defendants make some other points which maybe briefly noticed. It is said that there is no proof of the payment by plaintiff to Williams and Hill of the purchase money of the land, the title to which was warranted, except the testimony of the plaintiff himself, which was excluded. But the bill of exceptions states that after reading the deed of Williams and Hill to him, “the plaintiff then proved that the purchase money notes were paid shortly after they matured.” This was done before the plaintiff’s deposition was offered in evidence. And in the absence of direct proof, the • recital of the consideration in the plaintiff’s deed made in 1855, the subsequent lapse of time, and the proof of the defendant Parks that he had examined the papers of the testator without finding the notes, were sufficient to sustain the verdict in this regard. The record of the Supreme court was' evidence of its rendition, and the facts adjudged • as between the parties litigant. The appeal, it is true, was only by one defendant to the suit, and not by the present plaintiff. But the court treats the appeal as having brought up the entire record, and affirmed the chancellor’s decree generally, which constitutes a part of the record, and shows that the land was recovered from the plaintiff by the opposing litigants. But the objections of the defendants in this regard, and in other matters, are of no avail in view of the issues made by the pleadings. — 91 — In an action for breach, of covenant, both by the old forms and in the very nature of the action, there is no general issue. The defendant must plead every matter of defense, and the evidence must correspond with the plea: Jones v. Johnson, 10 Hum., 184. The only pleas to the merits in this case were that the covenantors did not covenant as alleged, and covenants performed. All the allegations of the declaration not denied by these pleas must be taken as true: Code, sec. 2910. No objection was taken to the amount of the verdict below, and upon calculation it is found to be correct to a cent. Judgment affirmed.