Alston v. Munford

MARSHALL, Circuit Justice. So far as these suits affect the heir, it becomes material to distinguish those claims which may at this time be asserted against the real estate, and then to inquire what claims may be supported upon the principle of marshalling assets. The iirst claim which has been discussed, is that of the executors of Samuel Beall, deceased. This was a judgment obtained by Samuel Beall in his lifetime, against Robert Munford in his lifetime, which was revived after the death of Mun-ford, to wit, in 17S4 or 17S5, against his executors. The great objection to this debt is, that the judgment as against the real assets, is barred by the act of limitations. By an act passed in 1792,2 it is declared that judgments in any court within this commonwealth may be revived within ten years next after the date of such judgment, and not after. The words of this act taken in their strict literal sense, certainly extend to this ease; but it is contended that this strict construction must yield to one more favourable to the creditor, and Eppes v. Randolph, 2 Call, 125, has been cited in support of this position. In Eppes v. Randolph, the obligation of a judgment of much older date was unquestionably admitted without controversy, but in that case, the point was not made at the bar nor decided by the bench, and the claim was asserted within less than ten years after the passage of the act. In the construction of this act, some difficulty is produced by the circumstance, that the draftsman has omitted to change the phraseology where a new provision was introduced, so as to adapt the language of the act to the subject. Actions had been previously limited, and this act of 1792, does, in general, only re-enact what was law before, and therefore it would have been improper, in most of its provisions, to give time for the institution of a suit subsequent to the passage of the act. For example: the first section gives a right to sue forth a writ of for-medon, within twenty years after the cause of action accrued, and not after. If the whole twenty years had elapsed before the passage of the act, the action would be barred; or if nineteen years had elapsed the action must be brought within one year, or the action would be barred. This is very proper, and was undoubtedly within the intention of the legislature. Previous acts of limitation, which were repealed by this, had created the same bar to this action, and if a time for bringing it had been given after the passage of this act, it would have exempted from the operation of former acts, claims which had already been barred by them, or might have given to the claimants a much longer time to assert those claims than they would otherwise have been entitled to. It was the intention of the legislature merely to bring ail former acts into one, and not to change the rights or situation of parties so far as former statutes had provided for the ease.3 But no former act of limitations had extended to judgments. Had the legislature adverted to this circumstance, it is probable that a certain time would have been given, after the passage of the act, for the revival of judgments previously rendered. Not adverting to this circumstance, they have employed terms which, strictly interpreted, must bar immediately any action on judgments of more than ten years standing, unless they be so construed as to exclude those judgments entirely from their operation. There is a peculiar degree of carelessness in the phraseology of the two sections on this subject. The first, which is the fifth section of the act, uses the appropriate terms for those judgments only, which had been actually rendered when the act passed, and would, therefore, justify the idea that the act speaks as at the point of time when the scire facias issues; but the succeeding section applies itself expressly, both to judgments which had been rendered before the passage of the act, and to those which might thereafter be rendered. This produces the necessity of applying the preceding section to the same judgments.4 [581] Whether the state courts -would, in the construction of this la-w, supply words which would give those entitled to judgments before its passage, time to revive those judgments by scire facias, is rendered, by the length of time which has already elapsed, a question of not much consequence. The same principle may, however, arise in the case of a judgment on which an execution has issued, or which has been enjoined, where, after the lapse of ten years from its rendition, one of the parties dies. I shall not inquire what would be the law in such a case, but think, that in general, where, after the passage of the act, ten years have passed away without a scire facias, it is too late to sue out that writ5 If, then, in this case, there had been no scire facias against the executor, nor injunction on that judgment I should think it too late to proceed against the heir. But those circumstances change the nature of the case, as will, hereafter, be more particularly noticed. The next claim to be considered, is that of Buchanan, Hastie & Co. In this case, judgment was rendered in this court, on a bond carrying interest, for a specific sum, although the verdict on which that judgment was rendered, found the penalty of the bond to be discharged by a less sum, with interest. It is apparent, that the entry of the judgment, which appears to have been the act of the clerk, deriving no sanction from any act of the court, is a clerical misprision, and such a judgment must have been reversed on writ of error. But without inquiring whether it is not amendable, and whether, in making out a record of the cause, it ought or ought not to be considered as the real judgment,61 think it perfectly clear, that the heir cannot take advantage of it. A verdict can never be given in evidence in favour of a party, if it might not be given in evidence against him. The heir cannot, therefore, avail himself of this judgment. The claim of John M’Rae, is on a bond, dated in April 1776. The objection to this is the length of time which has elapsed since its date. If it be the wish of the heir, I shall direct an issue to be tried at this bar, to ascertain whether the bond has been paid or not. The claim of William Cunningham & Co., being on a bill of exchange, does not bind the heir. The claim of Conway Whittle, is for a legacy given to his wife by Theodorick Mun-ford, one of whose executors Robert Mun-ford was. The principal objection to this claim is, that Robert Munford, as executor of Theodorick Munford, paid this money to himself as the guardian of his ward, and that, as testamentary guardian, he gave no bond, and, consequently, his heirs are not bound. The legacy is a specific legacy to Prances Munford, the wife of Conway Whittle, of a bond of John Bannister, amounting to £1809. This bond was delivered to Robert Munford, on the 2d of January, 1777, by Archibald Carlos. On the same day, Robert Munford, in his account with the estate of Theodorick Mun-ford, charges himself with this bond. On the credit side of that account is the following entry: “To John Bannister’s bond, to be paid to Prances Munford, £1809.” This last entry is under date of the 12th of July, 1778. A letter appears to have been written by Robert Munford to John Bannister, on the 13th of June, 1780, in which he speaks of having received from Mr. Bannister, a payment of £1000, in paper money, intrinsically worth only £200; and after ex [582] pressing liis confidence that Hr. Bannister would. not avail himself of that payment, adds: “Agreeable to your request, I shall make myself debtor to my niece, for the amount of her pecuniary legacy ’Tom her father, and consider you as debtor to me for the bond and interest enclosed in your letter.” I do not know what other construction to put upon this entry, than to consider it as the consent of the executor to the legacy, and a payment of that legacy to the guardian. The terms of the entry show that the bond was no longer to be considered as a subject on which the executor was to act. It was to be paid to Frances Munford, and in his executor’s account, he takes credit for it. This credit is entered among his payments, and bears date more than twelve months after the executor debits himself with the bond.7 It has been contended, that this transaction, were it even unequivocal, could not discharge the executor, because there were four testamentary guardians, and they must act conjointly. Whatever force might be allowed to this argument, as applicable to the commutation of the bond, which seems to be alluded to in the letter of the 13th of June, 1780, I cannot admit its validity, when applied to the payment made by the executor to the guardian. When there is more than one testamentary guardian, it may be necessary that they should imite in any act which disposes of the property of the ward; but I cannot conceive that the absence of one, disables the other from collecting a debt due to the ward. I cannot conceive that a joint receipt is necessary to the discharge of the debtor. This would be extremely inconvenient, and I should require an express authority to the point, before I could admit the principle. Whether the principle, laid down in 3 Ba. 407, [3 Bac. Abr. (1st Amer. Ed. Phila. 1811) *407, tit. “Guardian by Statute,” par. 9,] that, from the nature of the thing, the authority of guardians must be joint and several, be true, in all cases, or not, I think it must be true in the case of receiving the money of a ward. To me, then, it appears that Robert Munford was chargeable with this bond in his character of guardian, and as he gave no bond in that character, his heir is not bound. The debt remains a debt of the first dignity against the personal estate. 1 Rev. Code 1819, p. 389; Id. p. 408, § 12. The extent to which the heir is directly liable, being stated, with the exception of Beall’s judgment, it remains to inquire how far he is to be made liable, on the principle of marshalling assets. The principle on which the court proceeds in marshalling assets, is discussed very much at large in a case reported in 8 Ves. 382, (Aldrich v. Cooper.) The principle is, that a creditor having his choice of two funds, ought to exercise his right of election in such a manner as not to injure other creditors, who can resort to only one of these funds. But if, contrary to equity, he should so exercise his legal rights as to exhaust tiie fund, to which alone other creditors can resort, then those other creditors will be placed by a court of equity in his situation, so far as he has applied their fund to the satisfaction of his claim.8 In the application of this principle, no doubt can exist, so far as respects creditors by specialty, in which the heir is bound. Such a case is precisely within the principle, and is the case to which the principle has been most frequently applied.9 It has been contended by the heir, that moneys applied by the executor in payment for lands purchased by the ancestor, and not conveyed to him, are not to be considered as being now chargeable on the real estate. But, in such case, the creditor had his election to proceed by way of ejectment, and if the heir should enjoin, and call on the executor to satisfy the debt out of the personal estate, a court of equity would certainly not decree such satisfaction to the injury of simple contract creditors: such a case, therefore, seems to come precisely within the general principle, for the creditor had his election of two funds at law. But this question came on to be considered in Trimmer v. Bayne, reported in 9 Ves. 209, where, the decision was against the heir.10 The question, about which I have felt most difficulty, is, that which relates to the claims [583] of simple contract creditors, founded on payments made on judgments obtained against the testator in his lifetime. On this subject, I hare searched every book of chancery reports to which I have access, and can find nothing completely satisfactory respecting it. In the case of Finch v. Earl of Winchelsea, reported in a note in 3 Peere Williams, 399, it was contended by counsel at the bar, that simple contract creditors were entitled to take the place of judgment creditors, so far as the latter had exhausted the personal fund, and the court did not negative the doctrine; but the case was decided on another point, and the reporter adds a quaere. In 4 Vesey, 538, (Sharpe v. Earl of Scarborough,) it is stated in the index, and in the marginal note, to have been expressly determined, that assets could not be mar-shalled in consequence of payments made out of the personal fund to judgment creditors; but on examining the case itself, the decision of the chancellor is not found to be so express as it is stated to be in the index and marginal note. The implication, however, is in favour of the opinion, that simple contract creditors are not permitted to take the place of judgment creditors, as against the real fund. It has considerable weight with me, that there is not a case in the books, nor a dictum from the bench, in which it is said, that simple contract creditors may stand in the place of judgment creditors who have exhausted the personal fund, although the principle of marshalling assets has been discussed, perhaps, as frequently as any other on which a court of equity acts. That principle is continually stated; as applicable to payments made out of the personal fund to specialty creditors and mortgages, but never to judgment creditors. There being no express authority which is satisfactory, the question was .to be considered on principle. In taking this view of the subject, it became necessary to inquire, whether the judgment creditor possessed, at law, his election of two funds, or was under the necessity of pursuing the personal fund in the first instance. The oldest case that I have seen on this point, is that in 2 Dyer, (Bricknold v. Owen, 208 a,) which was cited by the counsel for the plaintiff. In that case, an elegit appears to have been awarded against the terre-tenants, and it is to be presumed, that no • previous scire facias issued against the executor. But the question was not .made, and the reporter adds a quaere, whether there ought not to be first a scire facias against the executor, and on nihil returned, then a scire facias against the terre-tenant, as was decided in 7 Hen. IV. But as such a scire facias on a recognizance is given in the judicial register, he doubts if the law be not the same as to judgments. In a note to the same report, it is said to have been afterwards stated in another case, to have been the course of the exchequer, not to charge the lands in the hands of the heir for the debt of the king, until the personal estate be exhausted. In [Panton v. Hall,] Carthew, 107, it is stated expressly by counsel, to be admitted law, that a scire facias cannot issue against the heir until the personal estate shall have been exhausted. In support of this position, many decisions from the year-books are cited, and it is not contradicted by the court, or by the counsel. This position is introduced into Bacon, and stands in the new edition as law, nor is any opposing principle laid down, or any contrary authority cited. In 14 Yin. Abr. tit. “Heir,” letter R, § 2, it is stated, that an application was made to the king’s bench, for a scire facias against the heir before process against the executor, which was refused. The weight of authority, therefore, appears to be decidedly in favour of the opinion, that the judgment creditor cannot proceed against the heir -until he has exhausted the personal estate. I am the more satisfied with these authorities, because they appear to me to lay down the positive rule in strict conformity with principle. The writ of elegit, in virtue of which the land is charged by a judgment against the ancestor, does not issue singly against the land, but orders the sheriff to deliver aE the chattels, (oxen and beasts of the plough excepted,) and a moiety of the lands, to the creditor. In his commentary on this statute, 2 Inst 95, Lord Coke says, that if the chattels be sufficient to satisfy the debt, the land ought not to be extended. Upon viewing the writ of elegit, given by our act of assembly, I have no doubt but that the same rule would regulate the conduct of the shoe584 iff.11 Since then, upon an elegit issued on the judgment against the ancestor, the personal estate is first liable, it would seem to be reasonable that the same judgment would, after his decease, affect his estate in the same order, and that the personal fund should be applied first to its discharge. If this be the law, then the judgment creditor has no election. He is under the necessity of proceeding, in the first instance, against the personal estate, and the principle on which assets are marshalled, would not apply to the case. If there be two mortgagees, A, the prior mortgagee, upon two tracts, and B, the subsequent mortgagee, on one only of those tracts; if A should appropriate to his debt the land mortgaged to B, then B would be permitted to take the place of A, with respect to the other tract. But if, by the terms of A’s mortgage, he was bound first to apply the tract mortgaged to B, then B would not be allowed to take the place of A. The reason on which he could, in the case first put, be permitted so to do, would cease. I am, therefore, of opinion, that in marshall-ing assets, simple contract creditors cannot charge the lands for so much of the personal fund as has been applied to the payment of debts, due by judgments obtained against the ancestor. It is very possible that this decision may, in this case, be extremely un-favourable to the heir. If the personal estate must be exhausted before the judgment creditor can proceed against the real estate, so that the proceeding against the heir is dependent on the proceeding against the executor, it would seem to follow, that the act respecting the renewal of judgments, ought not to be so construed as to bar a scire facias against the heir, provided the creditor has been employed in pursuing the personal estate; and, especially, if a court of equity has prevented him from exhausting the personal estate. It is with regret I give gentlemen of the bar additional trouble. But I was, at the argument of this case, so satisfied that the judgment could not be revived against the heir, as ten years had elapsed since its rendition, and since the passage of the act, that I did not sufficiently advert to those other arguments which respected the claim of Beall’s representatives. This opinion was not shaken until I considered that question in connexion with the right of the creditor to proceed immediately against the heir. It was then out of my power to recall the other points, on which the liability of the heir, for the balance of Beall’s judgment, depends. The arguments which have been urged at the bar. to show that the heir is not liable, on account of the payments made to the creditors of Theodorick Munford, are, in my opinion, conclusive. I do not think the dev-astavit fixed; nor do I think him bound by the report in chancery, as by an exhibit produced, and relied on, by him. That report is to be considered as an exhibit admitted by both parties, to be substantiated in the place of a report made to this court by one of its commissioners. It is, consequently, open to all the exceptions which might have been made to it, if returned directly to this court. The objections made to the jurisdiction of this court, are not deemed sufficient to prevent a decree on the interests of all the parties. In addition to other considerations urged in favour of a decision of the whole subject, the argument founded on the bill for marshalling assets, is conclusive. The creditors, who have a direct charge on the lands, must come in on that fund before it can be touched by the simple contract creditors, and, consequently, the court must direct them to be satisfied, before it can apply the surplus to creditors by simple contract. The case, then, is like that of a subsequent mortgagee wishing to foreclose. All prior in-cumbrances must be brought before the court and satisfied, before he can obtain a decree. NOTE BY THE CHIEF JUSTICE. This cause came on afterwards to be argued, on the question, whether the heir was liable for profits received before the filing of the bill: and the court determined 'that he was not: but that opinion is lost. Footnotes [2] Rev. Code 1792, c. 76, § 5. The same provision re-enacted, 1 Rev. Code 1819, c. 128, § 5. [3] The first section of the act of 1792, c. 76, for the limitation of action, referred to by' the chief justice, was re-enacted from the act of 1748, c. 1, (5 Hen. Stat. 415.) [4] The following are the sections of the act of 1792: “5. Judgments in any court of record within this commonwealth, where execution hath not issued, may be revived by scire facias, [581] or an action of debt brought thereon, within ten years next after the date of such judgment, and not after; or where execution hath issued, and no return is made thereon, the party in whose favour the same was issued, shall and may obtain other executions, or move against any sheriff or other officer, or his or their security or securities, for not returning the same for the term of ten years from the date of such judgment. and not after.” “6. Provided, That if any person or persons, entitled to such judgment. where execution hath not issued, or where execution hath issued and no return made, (in either case,) shall be or were under the age of twenty-one years, feme covert, non compos mentis, imprisoned, or not, within this commonwealth, at the time of such- judgment being awarded, whether execution hath issued thereon or not, every such person, his or her heirs, executors, or administrators, shall and may, notwithstanding the said ten years are or shall be expired, have the benefit, where no execution hath issued, by reviving the same by scare facias, or by action of debt; and where execution hath issued, and no return made, every such person or persons, his or her heirs, executors, or administrators, may have the benefit o-f other executions, or may move against any sheriff or other officer, or his or their security or securities for the same, within five years after such disabilities removed, and not after.” Rev. Code 1792, c. 76, §§ 5, 6, re-enacted 1 Rev. Code 1819, c. 188. §§ 5, 6. The court of appeals of 'Virginia have decided, that this fifth section was prospective only, and did not apply to judgments existing when it took effect. Lyons v. Gregory, 3 Hen. & H. 237; Day v. Pickett, 4 Munf. 104. [5] In Gee v. Hamilton, 6 Munf. 32, where an execution was issued within the year, and returned nulla bona, it was conceded by the appellant’s counsel, that the lapse of ten years was no bar to a scire facias: and it seems that where a party is delayed by injunction, he is not put to his scire facias, but he may sue out his execution within a year after the injunction is dissolved. Noland v. Seekright, Id. 185. And so where there is a stay of execution, Eppes v. Randolph, 2 Call, 186. [6] As to the uses of the writ of error, coram vobis, see 1 Rob. Pr. 644, 645, citing Sess. Acts, 1819-20, p. 24, ch. 28, § 1; also Gordon v. Frasier, 2 Wash. [Va.] 130; Cole v. Pennell, 2 Rand. [Va.] 174. Where the object is to correct clerical misprisions, this writ has been superseded by the practice of giving notice to the adverse party, and amending upon motion. 1 Rev. Code, 1819, p. 508, § 77, (passed originally in 1792,) and 1 Rev. Code, 1819, p. 512, § 88; [Cogbill v. Cogbill,] 2 Hen. & M. 477; Halley v. Baird, 1 Hen. & M. 25; Beatty v. Smith. 5 Munf. 41; [Bent v. Patten,] 1 Rand. [Va.] 25; [Burch v. White,] 3 Rand. [Va.] 104; [Com. v. Winstons.] 5 Rand. [Va.] 546; [Chrisitian v. Miller,] 3 Leigh, 78. [7] The principle seems to be well settled, that where an executor, or administrator, having assets in his hands, is also guardian of a legatee, or distributee, he can elect to hold the share of that legatee, or distributee, in his character of guardian, and thus, exonerate the sureties in the administration bond, and charge the sureties in the guardian’s bond. But there must be some act, from which the election to hold the property in a different character from that in which it was received may fairly be inferred, before the responsibility can be shifted from one class of sureties to another. Taylor v. Deblois, [Case No. 13,790;] Pratt v. Northan, [Id. 11,376;] Myers v. Wade, 6 Rand. [Va.] 444. [8] The same general principle on which equity marshals assets, is also laid down in Lanoy v. Duke and Dutchess of Athol, 2 Atk. 446; Lacam v. Mertins, 1 Ves. Sr. 312; Mogg v. Hodges, 2 Ves. Sr. 52; Trent v. Trent’s Ex’x. Gilmer. 188; Gheeseborough v. Millard, 1 Johns. Ch. 409. [9] Galton v. Hancock, 2 Atk. 436; Powell v. Robins. 7 Ves. 209; Haydon v. Goode, 4 Hen. & M. 460. [10] In conformity with this opinion, and with that in Trimmer v. Bayne, is the modern case of Selby v. Selby, 4 Russ. 336, 3 Cond. Eng. Ch. 694. reviewing the cases of Pollexsen v. Moore, 3 Atk. 272; Coppin v. Coppin, 2 P. Wms. 291; Trimmer v. Bayne, above cited: Mackreth v. Symmons, 15 Ves. 344; Headley v. Readhead, Coop. 50: Austen v. Halsey, 6 Ves. 475. In Selby v. Selby, the master of the rolls (Sir John Leach) said: “In Pollexsen v. Moore, Lord Hardwieke is reported to. have stated, that the lien of a vendor does not prevail for the benefit of a third person: yet his decree was, that a legatee in that case was entitled to the benefit of the lien or the vendor. In that case, as in this, the purchased estate [583] was devised. Many observations have, in subsequent cases, been made with a view to reconcile the dictum and decree of Lord Hardwieke; but I must admit, without success. In the case of Coppin v. Coppin the purchased estate was not devised hy the purchaser, but descended to his heir, and the question there was between the heir and legatees; and the court refused to marshal the assets in their favour. In the ease of Trimmer v. Bayne, Sir William Grant, after referring to the dictum of Lord Hardwicke in Pollexsen v. Moore, and stating that he had been much perplexed by that case, comes to a conclusion directly opposed to that dictum, and expressly states that the lien of a purchaser is within the common principle of marshalling assets; that a person having power, to resort to two funds, shall not, by his election, disappoint another having one fund only. The purchased estate had in that case descended to the heir; but it does not appear by the report with what class of claimants the heir was contending —whether with simple contract creditors, or with legatees.” In Selby v. Selby the contest was between the devisees of the purchased estate and simple contract creditors, and the master of the rolls said, that the established rule being that simple contract creditors are, as against a devisee, to stand in the place of specialty creditors who have exhausted the personal assets, because the specialty creditors had the two funds to resort to, so in that case the simple contract creditors were entitled to stand in the place of the vendor against the devisees, because the vendor had equally a charge upon the double fund of real and personal estate. [11] The writ of elegit given by the Virginia statute, is the same- as that given by the English statute of 13 Edw. I. c. 18. For the form of the writ, see 1 Bev. Code 1819, p. 525.