25 Miss. 501 | Miss. | 1853
delivered the opinion of the court.
At the May term, 1841, of the circuit court for Adams county, the Agricultural Bank obtained a judgment against the appellants, as executors of Benjamin Harman, deceased; which judgment was afterwards transferred and assigned to the Commercial Bank of Natchez. The charters of both these banks have been declared forfeited, and the corporations dissolved, by virtue of proceedings had under the act of 1843; and the ap-pellee, William Robertson, was appointed as trustee to sue for and collect the assets belonging to the Commercial Bank of Natchez.
On the 26th day of October, 1849, Robertson filed a bill in the superior court of chancery to enforce the collection of this judgment, upon the ground, that execution at law could not be taken out by reason of the forfeiture of the charter of the Agricultural Bank, and the consequent dissolution of the corporation. This bill was demurred to, and the demurrer overruled.
The objects sought to be obtained by this bill, are the same
It is probably a sufficient answer to this objection to state,, that in our opinion the defendants have no more right to insist in this proceeding upon a defence that existed prior to the rendition of the judgment at law, than they would have had if it had been a proceeding by scire facias to revive the judgment at law.
But if we were willing to go behind the judgment, and to permit the party to insist in this proceeding upon a defence which' might have been made to the rendition of the judgment, we are not prepared to hold, that no action could have been maintained to charge the estate, upon the promissory notes given by the executors. It is certainly true, that a promise made by an executor to pay a debt barred by the statute of limitations is not binding upon the estate, nor will it revive the right of action, or withdraw the claim from the operation of the statute of limitations. But "it has not yet been decided, nor are we prepared to deci.de, that where a valid claim exists against an estate upon which an action might be maintained, the executor may not, by an express promise to pay at a future time, give the party a right of action founded on such promise, which will authorize a judgment to be recovered out of the assets of the-estate.
But it is said that the statute of limitations bars the right to enforce this judgment, and we are cited to the 13th section of the act of 1822, (Hutch. Code, 827,) and the 12th section of the-act of 1844, (Hutch. Code, 831).
These sections have been carefully examined, and we do not' think they apply to this case. -
It will then be seen, that this section only applies to judgments against the testator or intestate; and, as the judgment sought to be enforced in the present case was not rendered against the testator or intestate, but against the executors, the statute clearly does not apply to it.
Neither do we think, that the 12th section of the act of 1844 bars the right of complainants to enforce their judgment; as we conceive that section only applies to judgments rendered against the testator or intestate, or to causes of action which existed against the testator or intestate.
This is manifest from the words of the act, which are as follows: “ No action, or suit at law or in equity shall be brought against any executor, administrator, or other person or persons having the charge or management of the estate of a testator or intestate, upon any judgment or other cause of action against his testator or intestate; nor shall any scire facias be issued against any executor, &c., to revive any judgment or other cause of action, after the expiration of four years from the qualification of such executor, &e.; and all such judgments or other causes of action, after the expiration of four years as aforesaid, upon which no proceeding shall have been had, shall be deemed to have been paid and discharged.” The first clause in this section only refers to “judgments or other causes of action against the testator or intestate.” But it is said, that the clause referring to the revival of judgments is general, and applies as well to judgments against the executor or administrator, as to judgments against the testator or intestate. This is certainly not the proper construction of the statute, which fixes the period at which the limitation shall
In our opinion, the twelfth section of the act of 1844 only applies to judgments rendered against the testator or intestate in’ his lifetime, and to claims upon which the party had a cause of action at or before his death.' Judgments rendered against the executor or administrator after Jiis qualification, and demands on which the right of - action has accrued after the death of the testator, must be regulated by other provisions of the law,.by none of which is the enforcement of the judgment in this suit, barred. Let the decree be affirmed.