Boyd v. Swing, 38 Miss. 182

Boyd v. Swing

38 Miss. 182 | Miss. | 1859

Handy, J.,

delivered the opinion of the court.

The bill in this case states, in substance, that the complainant, a resident of the State of Ohio, is administrator of the estate of Archibald McNeill, deceased, who resided in that State, but died in Adams county, in this State, in the year 1840, leaving no personal estate except a debt of about §820, due from one Franks; *195that no one took out letters of administration on the estate of McNeill until letters were granted to the complainant, which took place in Ohio, in the year 1858; that soon after McNeill’s death, Thomas Armat, of Adams county, an attorney-at-law for him, in May, 1840, took out letters, ad colligendum, and gave bond in the usual form, with S. S. Boyd, his surety, in the penalty of $1500, and on the 30th April, 1841, collected the debt of $820, and in July, 1841, returned an inventory of it, but never rendered any account of his administration thereof, and never paid the money to any person authorized to receive it; that several years after said collection, Armat removed to Louisiana, and there resided until his death, having taken with him there the said money; that, at the time of his death, he had no property in this State, and no administration has been or could be taken out in this State, as he had no effects in this State; that Armat mingled said money with his own, and .used it in planting in Louisiana, and made with it great annual profits, of which the complainant prays discovery; that McNeill left a wife and two infant children of very tender years, then, and still residing in Ohio ; that Armat never informed them of his said collection, or of his appointment as administrator, and they had no knowledge of it until within the last twelve months, although they had made diligent inquiry into the affairs of McNeill; that complainant took out letters in Ohio, at the request of the next of kin of McNeill, and gave bond, and made return of this debt as the whole estate, and in September, 1858, he presented copies of his letters of administration, bond, and inventory, to the Probate Court of Adams county; and in order that he might be authorized to demand and sue for said debt, said copies were ordered to be filed; that after Armat’s death, all his property came to the hands of his-brother John W. Armat, who is a resident of Louisiana, who has. possession of the books and papers of Thomas Armat; that complainant has demanded of John W. Armat an account and payment of said money, which he has refused to comply with.

The bill prays that Boyd and Armat discover what use Thomas Armat made of said money, and what profits he made therefrom;. that an account be taken thereof, and a decree therefor against them.

To this Boyd filed a demurrer, assigning numerous causes of *196demurrer; which was disallowed, and from that order this appeal was taken.

Of the many grounds of demurrer taken to this bill, we deem it necessary to consider only three.

The first of these is, that the appointment of Armat as collector, was unauthorized and void in law, and hence, that the bond executed thereupon, creates no legal obligation upon Boyd as surety*

The bill shows that McNeill died intestate; and it is not alleged that he left a will, or that there was any contest pending about his will, or any proceeding to establish a will alleged once to have existed, and to have been destroyed. It is only under circumstances of this nature, that the Probate Court is clothed with power to appoint a collector. For if there be no suggestion of the existence of a will, or contest in relation to its validity, rendering it proper for the court to suspend action in the appointment of an administrator, it is the duty of the court to appoint an administrator, if the circumstances of the estate are such, as to give the court any jurisdiction in relation to the estate. The statute defines the power of the court in the appointment of collectors, and plainly limits it to' the circumstances above stated. Hutch. Code, 654.

It is therefore not mere error, for the court to appoint a collector, without the necessity which the statute requires as authorizing the act; but the appointment is void, and it is competent to the surety on the bond executed under the appointment, to deny its validity.

The next objection which we will notice is, that the remedy, if any existed against Boyd, was at law.

So far as Boyd is concerned, the bill appears to be a mere suit to recover against him for a breach of the condition of the bond of Armat, on which he was surety. It is, in substance, that Armat collected the money, and has failed to pay it over, and, therefore, .that Boyd is liable to pay it to the complainant. There is not .even a suggestion that it is necessary that Boyd should make dis.•covery as to the amount collected, or the profits made therefrom, Ay Armat, or that he has any knowledge upon those points not available to the complainant, except by discovery by Boyd. And this is necessary in order to sustain the jurisdiction in equity, on the ground of discovery. 1 Story Eq. Jur. § 74.

It is not alleged that Boyd has any knowledge of the alleged *197gains and profits made upon the money by Armat; nor, for aught that appears, is there any pretence that he would be liable upon the bond, in any event, for the same. The only amount for which he could be liable on the bond, would be for the principal of the sum collected by Armat, with interest; and the bill shows that that sum is found in the inventory of Armat.

The bill, therefore, mates no case for relief in equity, against Boyd, on the ground of discovery; but, on the contrary, that ground appears to be distinctly negatived. It appears, indeed, as to him, nothing more than a suit to recover for a breach of the condition of the bond, without a feature necessary to confer jurisdiction in equity.

Again. The bill is objectionable for misjoinder of parties.

It proceeds against Boyd upon the bond, the measure of his liability on which could, in any event, only be the amount collected by Armat, with interest. But there is no pretence that John II. Armat is liable on the bond. On the contrary, he is sought to be charged for the profits and gains which have been made by using the money in planting, by Thomas Armat in his lifetime and since his death, on the ground that the property has come to the possession of John W. Armat, since the death of Thomas, and he has made profits by means, of the money so employed.

It is, therefore, plain that the defendants are sought to be charged on different grounds, and for different amounts: Boyd on the bond, and Armat for the money, with all profits and gains therefrom, and each being an entire stranger to the liability alleged against the other. The grounds of their respective liability are different, their defences would be different, and there could be no common amount of recovery against them.

On these grounds, the demurrer should have been sustained, and the bill dismissed.

Let the decree be reversed, the demurrer sustained, and the bill dismissed.