Booth v. Starr

5 Day 275 | Conn. | 1812

Lead Opinion

Be a ward, J.

(After stating the case.) The action seems to be for breach of covenants of seisin, of quiet enjoy men!, and of warranty. The first can have no place here, because, clearly barred by the limitation ; and the secoBd is unimportant, as it depends on the last.

1 have no difficulty with the objection that the declaration does not state an eviction by legal process. There may be an eviction without legal process, that will amount to a breach of covenant of warranty. The averment that at the of the execution of the deed, the good and elder title was in Lucy Starr, to the exclusion of the grantor, and that by force and virtue thereof, she entered into possession, and <■>. icti'il the plaintiff, is sufficient.

All Ihe difficulty that can arise, is, that the eviction may lie by collusion ; but the averment that the older and good tille was in Lucy Starr, by virtue of which she evicted, is sufficient; because the existence of such a title is inconsistent with a title in the grantor. The case of Foster v. Pierson, 4 Term Rep. 617. fully settles this point.

liut the question i?, whether for the breach of a covenant, where the cause of action arises after the death of the cove-nantor, and after his estate has been represented insolvent, commissioners appointed, the time limited for exhibition of claims expired, report made and accepted ; and after the administrators have exhibited their administration account, and paid all ¡he debts allowed against the estate, with the expenses of settling the same ; and after, by order of the court of probate, they have paid over the surplus to the heir; the administrators can be liable ?

The essential duties of the administrator are, to collect all :ke effects of the deceased, make and exhibit a true inventoy, pay all the debts and expenses, and under the order of •be court of probate, deliver anil pay over the residue to the heirs according to law. It is important, for the administrator to know what are the legal debts against the intestate’s estate, arid when and by what means he can be assured that they are all ascertained. In what manner can this be effected ? I answer, reference must be had to our system of laws : And whether this system is natural or artificial, whether founded in the abstract fitness of things, or in policy, is immaterial.

If the estate be represented insolvent, the limitation by the court of probate, for the exhibition of claims, provided the whole estate be inventoried, is conclusive, as to the extent and amount of the administrator’s liability : And this is so, indeed, where the proceedings are regular, whether the estate prove insolvent or not.

If the estafe is not represented insolvent, still tin* limiíuüoi: of the court of prohate, the extent of which is eighteen months, is conclusive on all the creditors within this State. Those living without, are allowed two years, after the expiration of the time limited.

Under this system, an administrator exhibits a true inventory ; repicsents the estate insolvent ; the court of probate appoints commissioner» ; limits a time for the exhibition of claims, at the expiration of which, they make report of all claims allowed, which is accepted : These claims, and all expenses, are paid by the administrator, who, by order of the court of probate, delivers over the surplus to the heir at law. Is not this, in effect, a full administration, or in other words, a complete discharge of all duties imposed on him by our system ? Every step has been taken in compliance with it, and to the full extent of its demand, the property lias gone where the law directs it to go, so far at least, as respects the administrator, arid there is nothing left.

But it is said, that an administrator ought to take bond from the heir to indemnify himself against the contingency of future claims. Is it so,' that an administrator is bound to guard himself fty security, precarious, from the effect of time, against contingent claims; claims, which may not arise until after a lapse of years ? There is, indeed, a clause in the act in relation to the settlement of estates, requiring the heirs to give bond to the court of probate to refund to (he administrator their rateable parts, incase debls afterwards be made to appear; but this is applicable only So estaies riot represented insolvent, and made too, at a time when there was no limitation to claims against such estate. This was part: of an act passed in October, 1699 ; and the act limiting claims against solvent estaies, and extending the time to its utmost extent, did not pass until October, 1782. The provision, therefore, by bond, can be applicable to no claim exhibited two years ; because the law admits none beyond that period. It may be applicable to claims of persons living out of the State, who have the benefit of the extra six mouths-it is idle to guard by bond against claims that can never exist. '

The essence of the argument, is, however, that as the claim did not exist until after the expiration of !he lime limited by the court of probate, and as, of course, it could not have been exhibited, therefore it is not barred. But my reasoning is, shat as the claim was not exhibited until after the time limited, and as it was within no saving, therefore, it is barred.

The administrator, as the personal representative of the deceased, is answerable for all his covenant's, whether broken before or after his death ; provided, the claim he exhibited within the time limited, or by law allowed ; broken, indeed, ¡hey must be, before claimed and allowed.

it: is limber said, let 11s go against the administrator, for against him only can we prove oar claim, and no one else can contest: it; — that when our claim is ascertained against the administrator, our object, as respects him, is answered, and be will be protected against the scire-Jadas.

But why suffer judgment to pass against an administrator, when It is manifest, it ought to have no effect against him ; when it is apparent from the pleadings, from the facts already existing, that he ought not to be liable upon a scire-fados ? Why have a judgment against a man in autre droit, when, confessedly, it cannot be followed up. The judgment, if any, must be against the goods and estate of the deceased in the hands of the administrator. To say we have a claim against the administrator, even nominally, is begging the question, if my former reasoning be correct, the plaintiff has no claim against him, and, indeed, never had. The .claim, therefore, if it exists, must be against the heir, who .must also be the proper person to contest it.

⅛. The grantor, for himself, his heirs, executors and administrators, covenanted to warrant and defend the premises, tfhis is a covenant real, which descends to the heir, and is binding on him, in regard to assets real by descent, and is also,binding on the administrator in regard to personal assets : of these, however, he is already divested, by due course and order of law.

It does not appear in this case, that the heir received any estate of inheritance from her ancestor, and therefore cannot be liable in regard to assets real hy descent. She has not, in ancient phraseology, “ other lands to yeald.”

The daughter, in one sense, is heir to the covenant of warranty, a covenant real, on which, however, as such, in as much as she received no estate of inheritance, she cannot be liable; for the heirs intended by the deed, arc heirs at common law : but under our statute of distribution, she has received the surplus estate of the covenantor. To this, in her hands, the equity of the claim scorns to point. But to reach it may be difficult.

This brings me to ground, o.n which, I am disposed to tread with caution. Whether it is competent for a court of chancery to find a breach of covenant, and assess damages ? Whether it can direct an issue of the fact to be tried, and damages to be thus assessed, and then apply (he remedy itself? Whether any can be made parties to such an issue, real or feigned, but those who are legally parties to the covenant ? may be questions of importance, but hot necessary for the decision of this case.

I am of opinion, that there is no error.

Reeve, Swift, Thumb: li., Edmond and Baldwin, Js,. severally concurred in this opinion. Smith and Ingersoll, Js., dissented.

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Dissenting Opinion

Mitchell, Ch. J.

also dissented, and delivered liie following opinion. Our probate system in Comrclhnt is artificial, and, in many respects, differs from the English law relative to the settlement of interlace estates. Our statute has created a joint fund of the real and personal estate, and made both assets in the hands of the administrators, and requires a bond from him, faithfully to administer, not only the goods, chattels and credits, like the sfat. 22 and 23. Car. 2. •but the enlate also, of the intestate. The first and most essential duty of the administrator, is to pay the debts of the intestate ; to satisfy all the creditors, in the first place, before any distribution can be made for the benefit of the heir. Tiie heir is the object of the bounty of the law in this case, as the legatee is of the testator s bounty, in a will. It is only tiie resithiura that belongs to either: For the law will ■be just before it is generous. This appropriation of the whole properly of an inféstate, for the benefit of the creditors, in the firs! instance, is the most striking feature in our law, and appears in every clause of the statute. And it was, probably, to save the real estate from being wasted by a thriftless luir, and to secure it for the benefit of the creditor, that our law has placed it in the hands of the administrator, and required a bond that this also, as well as the personal property, shall be administered according to law.

In pursuance of this object, the law requires public notice, to be given to the creditors, for the exhibition of debts, and provides for the payment of all such as shall be exhibited and allowed before any distribution be made. But lest some remain unsatisfied, after distribution, to secure these also, it further provides, and requires from every heir, to whom any part or si;are shall be allotted, a bond with sureties, “ to refund or pay back to the administrator, his or her rateable part of any debt which shall be made to appear against such estate,’’ after the time limited for the settlement thereof by the court of probate : Thus effectually preserving a security for all claims against such estates, to the amount of all the assets real and personal. But what claims are there “ which shall afterwards be made to appear,” within the meaning and intent of this act ? These cannot be merely the claim» of creditors without the State, for another section provides ■xpressly for those; neither can they be the claims of creditors within the State, which have actually arisen and accrued previous to the expiration of the time limited by the court of probate for the settlement; because the 21st section of the act provides, “ that if any creditor neglects to exhibit his claim within inch time, he shall forever be debarred ef lire demand;” anil if this clause was intended lo > ,i: olí any di ■ mauds whatever, those must he the creditors, .if an.. • n> ai' chargeable with neglect.

Tiiis provision requiring a bond to the administrator for the payment, of future claims, must then, have been intended for such claims, as could not have been ascertained and allowed bv tin: court of probate, within the time limited; such as indemnity bonds not vet lot felted, collateral undertakings not then due, or personal covenants not then broken; which might be j-.hihnn ni presenil, solveii’htiii in futura : Because, the subsequent section had absolutely debarred and cut off all others within the State, which the creditors nad neglected to present, and therefore no others afterwards could appear, but such as should afterwards actually arise or aecmc. And no such claim could have been presented before, because none such existed within the time: a creditor of (b;S description could not have been designated in the statute, as one who had neglected to present a claim, which he then could not have proved; nor could it have been the intention of the legislature, to subject the creditor to the loss of his debt, by imputing neglect to him for dot presenting a cl -bn, which the court of probate could not have allowed, if exhibited at the time,

And must he, therefore, be stripped of the security of his covenants ? Must the death of the covenantor, and the mere lapse of time before the covenants were broken, discharge the covenants ? if not, I ask, against whom could they arise 1 Against whom could they afterwards appear ? If against the heir alone, why does the statute require a bond from the heir to refund and pay to the administrator his proportional part of such debts, as should afterwards appear, with the charges of the administrator in defending them 1 This bond can never be forfeited, if the administrator is not to be accountable for debts afterwards arising; because alt others within the State, as has already been shewn, are barred by the subsequent clause.

This provision, then, must be nugatory and inoperative. In the mean time, upon this principle, the bond of the ad-uiiiiislMtor 10 tin; court of probate, has been fulfilled by a iii.-ininituHi nf tbe estate, and the acceptance of tills bond iVoni (he heir; and as no oilier bond or security for such creditors, is ii.jiiiied from the heirs, the property which the law intended to guard and preserve for the creditors’ benefit, may be squandered with impunity, and without any remedy, and the creditors left without redress. But suppose that the administrator distributes a part to some of the heirs, who give-bonds with surety; and to others, who cannot or will not obtain sureties, he should refuse to distribute ; and in this state of things, aright of action first accrues to the covenantee in a deed of the intestate; shall he sue those who have received their distributive shares, and recover pro rata ? And may the others plead no assets in their hands, while the administrator protects himself by lapse of time, with assets sufficient in his hands ? Or shall the creditor sue the heirs who have received their shares and the administrator jointly ? This principle appears to me to be pregnant with absurdities, and tending to the destruction of all the covenants of warranty in our title deeds.

But on the other hand, if the administrator is held accountable, and we consider the bonds from the heirs as assets in his hands, when he has distributed the property, there can be no difficulty in any case. His security is ample ; he can recover at any length of time. The judgment against him must alwaj 3 be to recover of the goods, chattels and estate of the deceased in his hands ; the creditors will have the protection the law intended ; and this comports strictly With the conditions of the administration bond ; and is conformable to the law in analogous cases.

3 u this case, the covenants of warranty and quiet enjoyment were not broken, until after the time limited by the court of probate had expired. No claim for this breach, therefore, could have been presented; and this action is founded as well upon the covenant of warranty as upon the covenant of seisin. It is sufficient, that the plaintiff proves a breach of either of the covenants to entitle him to a recovery. The plea admits the breach of all the covenants, and as he could not have had his damages ascor' .1 ■•■■d hy the oiu:" of probate before eviction, on the covenant of warranty. 1 liiink he lias chosen the proper mode of redress, and a legal one. 1 think the judgment erroneous.

1|: tement ailirmed-