1 Brock. 266 | U.S. Circuit Court for the District of Virginia | 1814
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,
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,
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
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.
The question, about which I have felt most difficulty, is, that which relates to the claims
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 shoe-
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.
Rev. Code 1792, c. 76, § 5. The same provision re-enacted, 1 Rev. Code 1819, c. 128, § 5.
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.)
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,
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.
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.
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.
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.
Galton v. Hancock, 2 Atk. 436; Powell v. Robins. 7 Ves. 209; Haydon v. Goode, 4 Hen. & M. 460.
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
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.