38 S.E. 779 | S.C. | 1901
April 18, 1901. The opinion of the Court was delivered by The plaintiffs brought this action to subject lands, devised to the defendants, to the payment of debts of the devisor. The main facts in the case are these:
1. The devisor, Jane Taylor, died on 15th December, 1888, leaving a will of which R.T. Kirkpatrick was made executor.
2. By her will she devised to the defendants each a tract of land, into the possession of which they immediately entered, and of which they are still in actual and exclusive possession.
3. After the devisor's death, at some time before March, 1895, the plaintiffs recovered judgment against the executor on a note given by the devisor, in the Court of Common Pleas for Abbeville County.
4. On 21st March, 1895, the plaintiffs, in a proceeding to prove said judgment, recovered judgment in the court of probate against the executor, which was duly docketed and became a judgment of the Court of Common Pleas.
5. It is not claimed that the defendants herein were parties *337 to any of these proceedings, but it appears that the executor was the sole defendant.
6. Execution was issued, and returned nulla bona.
7. The debt is still unpaid.
The plaintiffs seek to subject the lands devised to the defendants to the payment of this debt of the devisor. The defendants stand on several defenses; but the main defense is that the note sued to judgment is barred by the statute of limitations, that it was a promissory note, and the cause of action accrued more than six years before the commencement of this action on 21st April, 1899. The report of the case will set forth in full — the complaint; the answer; the grounds of the defendants' demurrer to the complaint; the grounds of the plaintiffs' demurrer to the answer; the decree of the Circuit Judge; the plaintiffs' exceptions to the decree; and the defendants' exceptions thereto.
The cause was heard on Circuit by his Honor, Judge Gage, upon the pleadings. In his decree he overruled the defendants' demurrer, sustained several of the grounds of the plaintiffs' demurrer; but overruled the first and most important, which reads as follows: "That it is immaterial to the defendant, when the cause of action accrued upon the note, the plaintiffs having the right to bring the action to subject lands devised to the payment of the debts of the testatrix at any time within six years after their remedies against the executor have been exhausted." With regard to the defendants' demurrer which was overruled, and that portion of the plaintiffs' demurrer which was sustained, it is sufficient to say that we agree with the Judge in his decision, and we adopt that part of his decree as expressing the opinion of this Court on the points involved. We do not, however, agree with him in his decision overruling the first ground of plaintiffs' demurrer, quoted above, but are of the opinion that it should have been sustained. In his decree the Judge said: "There can be no question that plaintiffs' cause of action consists in holding a valid debt against the testatrix, and the possession by defendants, as volunteers, *338 of property liable for the payment thereof. These two facts give the legal right. When did the legal right called cause of action accrue? The plaintiffs contend only when the plaintiffs' remedy against the executor was exhausted — that is, when judgment was rendered, execution issued, andnulla bona thereon returned. But, as I conceive the law, the plaintiffs had the right to pursue the devisees independent of the executor, and whether the executor had assets or not. The reason of this is made plain by Chancellor Harper in Vernon v. Valk, 2 Hill Ch., 259, 260 and 261. If the plaintiffs had this right of pursuit, it accrued at that specific time when they held a past due obligation of the testatrix, and the defendants held property of the testatrix liable therefor. The judgment against the executor is resinter alios acta, cannot affect the defendants' rights, and, therefore, need never have been rendered. * * * My opinion is, if the facts so stated as the cause of action herein, existed more than six years before this action was begun, the statute may be pleaded against the enforcement of the obligation. The first ground of plaintiffs' demurrer is, therefore, overruled."
The part of the demurrer thus overruled was directed against the first defense of the defendants, in which they pleaded the statute of limitations as a bar to any recovery against them on the debt of their ancestor. Taking the facts alleged to be true, for the purposes of the demurrer, we do not think the defendants could plead the statute as a defense; and it is our opinion that the learned Judge erred in holding it was a good defense, and in overruling the first ground of plaintiffs' demurrer. And we shall proceed to set forth briefly the reasons for our decision. The word briefly is used advisedly — for there is, we confess, a strong temptation to write a long and elaborate review of the cases in which the law involved has been considered and discussed by the Courts of this State. It was in D'Urphey
v. Nelson, 1 Brev., 289, decided in 1803, by the Constitutional Court, that the first opinion was filed upon the effect *339
on lands descended or devised of a judgment against the administrator or executor recovered on a debt of the intestate or the devisor. This was followed, in 1827, by Martin
v. Latta, 4 McC., 128; and from that time to the present these two cases have been regarded as the common source of the law on this interesting subject. These cases did much to settle the law, aided greatly, however, by the application of the principle of stare decisis. For the doctrines laid down were not received with favor, and the law was so long in doubt that it "seriously embarrassed the bench and bar for a long period of time," as said Mr. Justice Willard, in his dissenting opinion, in Rogers v. Huggins,
The general proposition — that lands descended or devised may be subjected to the payment of the debts of the intestate or the testator — is plain and easily understood, but the application of it as a rule of law has frequently been attended with great difficulty. Different cases presented each a different *340
state of facts, and this law in favor of creditors had to be regarded from different points of view. Could this rule be applied, whether the heirs or devisees were or were not in the actual and exclusive possession of the land? Could it be applied as well after as before partition? Could exclusive possession by the heirs or devisees for a sufficient length of time prevent the application of the rule, the creditor thus losing his right by laches? These and cognate questions came before the Courts for adjudication in numerous cases, and the long line of opinions in our reports settling these questions attest as well the difficulty of the subject as the learning, labor and research of the Justices who delivered them. Some of those opinions present a careful and exhaustive review of all the cases from D'Urphey v. Nelson
down, and they succeed in reconciling views which at first sight may seem to be irreconcilable: for example, the opinion of the Court, by Mr. Chief Justice Moses, in Rogers v.Huggins,
It has already been shown that the case of D'Urphey v.Nelson, supra, decided that the statute of George II. makes the land of a deceased person assets in the hands of his personal representatives, and thus liable for the payment of the debts of the deceased. The case of Martin v. Latta, supra, simply reaffirms the law as laid down in D'Urphey v. Nelson. In neither case did it appear that the heirs or distributees had ever been in possession of the land; but, on the contrary, it was shown in both cases that a purchaser was in possession. *341 Consequently nothing was said in either case about the rights of heirs or devisees in actual and exclusive possession before judgment recovered against the administrator or executor. In Jones v. Wightman, supra, the plaintiff was in possession as purchaser under a judicial sale for partition. While still adhering to the rule established in D'Urphey's case as applicable when the heirs held the land as descended estate, and whether in actual possession or not, Judge O'Neall delivering the opinion of the Court, held that the rule did not apply after the lands had been partitioned and purchased from the heirs by a third person. It thus appears that lands descended or devised cannot be subjected to payment of ancestor's debts, when by partition or other acts of law, the character of the possession is changed, and becomes exclusive in the heirs or devisees. Bird v. Houze, Speer's Eq., 250, marks another step forward in the progress of the doctrine under discussion. Chancellor Dunkin, while dissatisfied with the decision in D'Urphey's case, still recognized it "as a settled law of property," but held in Bird's case that the exclusive possession of the heirs, and acts of ownership exercised by them, protected their inheritance from levy and sale under an execution against the personal representative of their intestate. This does not mean that the mere fact of actual and exclusive possession in the heir will prevent the application of the rule in D'Urphey's case. Such a construction would amount to a practical abrogation of the rule; for, as was pointed out by Mr. Chief Justice Moses, in Rogers v. Huggins, supra, "In the very large proportion of the instances in this State (and the case before us presents one), they upon whom the inheritance is cast are in possession at the very moment of the death of the ancestor, for in nine cases out of ten they are members of his own household." The reasonable construction of the decision in Bird v. Houze is that while lands in the actual and exclusive possession of the heirs, and over which they have exercised acts of ownership, may not be sold under a judgment against the administrator upon the debt of the intestate — and that, too, although *342 no regular partition has been made — yet may they still be subjected even in the hands of the heirs to the payment of the ancestor's debts in a proceeding instituted for that purpose, to which proceeding the heirs would be necessary parties. The judgment of the Court in Bird v. Houze was based on the additional ground of laches. It appeared that nothing had been done for ten years after the judgment had been recovered, and the heirs had been left in undisturbed possession for twelve years. "After such laches," said the Court, "it is too late to resort to the heir." This was the first case in which the fact of actual and exclusive possession in the heir was before the Court. It was the first, also, in which the heir had a defense which the administrator had failed to interpose, namely, the statute of limitations, which was sustained. And the decision of the Court in that important case went no further than this: that lands descended and in the actual and exclusive possession of the heir may not be subjected to the payment of the ancestor's debt without giving the heir notice and an opportunity to defend — that is, in a proceeding to which he would be a necessary party. This just interpretation shows that there is no conflict between the cases of D'Urphey v. Nelson, and Bird v.Houze.
Another instructive case is Rogers v. Huggins,
We now come to those cases which are particularly referred to by Judge Gage in his decree in the case at bar. The learned Judge says: "I have carefully read Lanier v. *343 Griffin,
But, conceding that Lanier v. Griffin accords with McMullin v. Brown, Judge Gage says in his decree that the same Court of Appeals which rendered the decision in McMullin v. Brown laid down principles in Vernon v. Valk which are *344 antagonistic to the conclusions of Judge Johnson in the former case; and that, moreover, all of his conclusions were not sustained. The Circuit Judge does not set forth the antagonistic conclusions, nor does he indicate which of Judge Johnson's conclusions were not sustained.
A careful consideration and analysis of the decisions referred to fails to discover points of actual difference or of antagonism. Vernon's case was decided in March, 1835; McMullin's in December, 1836. The Court of Appeals that heard Vernon's case consisted of Judges Johnson, O'Neall and Harper. The Court of Appeals that decided McMullin's case was composed of Chancellors DeSaussure, Johnson, Harper and Johnston; and of Judges O'Neall, Gantt, Richardson, Evans, Earle and Butler. The report of McMullin's case shows that while Chancellor Johnston delivered the opinion of the Court, Chancellor Harper and Judge O'Neall concurred with the others in the decision. It thus appears that the same three learned Judges were of one mind in Vernon's case and in McMullin's case. It is not easy to believe, that, in so short a space of time and on a subject of so much importance, those three eminent men could have given their sanction to antagonistic opinions. There is one slight semblance of difference of opinion in those two cases. In Vernon v. Valk, we find Chancellor Harper saying this, with reference to the cases of D'Urphey v. Nelson and Martin v. Latta: "Notwithstanding our decisions that lands in the hands of the heir may be sold by an execution upon a judgment against the executor or administrator (decisions which, however much we may regret them, have yet obtained too long, and too many rights have been vested under them, to allow us to interfere with them), yet I suppose an action at law might be sustained against the heir alone. There is nothing in these decisions to forbid such an action. In such action, the executor neither would nor could be joined, and it would be immaterial whether there were an executor or administrator in the State or not." To understand clearly the full logical import of the learned *345 Chancellor's language, we must look into the facts of the case then before the Court. The bill shows that in Vernon's case there was no executor or administrator, and there were no personal assets in the State. A decree had been rendered in New York against the executrix, lately deceased. The Chancellor says: "It would be mere mockery that a formal administration should be taken out here, where there are no assets, in order that such formal administrator might be made a party." Keeping these facts in mind, there is no inconsistency between the decisions in Vernon's and McMullin's cases. It is always important to limit the scope of a decision to the special point presented in the case for adjudication. As to other questions not arising in the case, a decision is a mere obiter dictum. It would seem that Judge Gage gave the decision in Vernon v. Valk a larger meaning and a wider and more general application than Chancellor Harper and the concurring Justices intended. The Judge says in his decree: "The plaintiffs had the right to pursue the devisees independent of the executor, and whether the executor had assets or not. The reason of this is made plain by Chancellor Harper, in Vernon v. Valk, 2 Hill Ch., 259, 260 and 261. If the plaintiffs had this right of pursuit, it accrued at that specific time when they held a past due obligation of the testatrix, and the defendants held property of the testatrix liable therefor." In this we cannot agree with Judge Gage, being of the opinion that he misunderstood the language and misapplied the doctrine of the decision in Vernon v. Valk.
The doctrine applicable to the case before us is that so plainly laid down in McMullin v. Brown, supra, and expressly reaffirmed in Lanier v. Griffin, supra, namely, that the statute of limitations will not run so as to protect a legatee against liability for his testator's debts until after the remedy has been exhausted against the executor — no cause of action accruing against him until that time. What is the true nature of the action at bar? It is not an action to recover from the defendants the amount of a debt due by their *346
devisor. It is not to establish a personal demand against them, for they cannot be held liable personally. It is simply an action to subject lands in the possession of the defendants as devisees to the payment of the debt of their devisor. In the apt language of the Circuit decree, "There can be no question that plaintiffs' cause of action consists in holding a valid debt against the testatrix and the possession by defendants as volunteers of property liable for the payment thereof." We may adopt and — to suit the facts in this case — adapt the language of Mr. Chief Justice McIver, in a somewhat similar case (Cleveland v. Mills,
The comparatively recent case of Ariail v. Ariail,
But the opinion in Ariail v. Ariail goes on to say: "Nor was it necessary to have a return of nulla bona on the said judgment before action accrued against the devisees." As a general proposition, this is in obvious antagonism to the rule laid down in McMullin v. Brown, and recognized in several subsequent cases, namely, that the statute of limitations did not run so as to protect a legatee or devisee against *349 his liability for his testator's debts until after the remedy has been exhausted against the executor — no cause of action accruing against him until then, for the sound reason that until the creditor has exhausted his remedy against the executor, or administrator, he cannot certainly know that the assets in the hands of the personal representative would prove insufficient (McMullin v. Brown, supra), or, indeed, that there were no assets in his hands. Was it the intention of the Court, in Ariail v. Ariail, to overrule McMullin v.Brown, and the other cases following in line? We do not think so. No mention is made of McMullin v. Brown in Ariail's case, nor of any desire to overrule or even to modify it. The importance of the law of property involved is too great and far-reaching to permit the supposition that the Court intended a result so serious, while giving no intimation of such intention.
When the facts in the case and the Circuit decree are considered, it is manifest that the Court was not looking beyond those facts, and the issues arising therefrom, when it announced that a return of nulla bona was not necessary before action accrued against the devisees. The report shows that it was admitted that there were no assets in the hands of Gary, the executor. Such an admission made it unnecessary to obtain a return of nulla bona, or to seek a remedy against the executor. That this is all that the Court meant, is made clear by an examination of the two cases cited by the Court — Reeder v. Speake,
In Huggins v. Oliver,
We cannot do better than again announce this excellent rule as the logical result of the numerous decisions on this vexed question. The doctrine which the rule embodies is clearly indicated in Gilliland Howell v. Caldwell,
When the principle deduced from the cases we have reviewed are applied to the facts in this case, it will easily be seen that the judgment recovered by the plaintiffs against the executor in March, 1895, does not bind the defendants, and the lands in their hands as devisees cannot be sold under that judgment. They were not parties to that suit and thus had no opportunity to dispute the claim. Although the *352 claim was sued to judgment, that fact does not give it any higher rank or greater effect, in so far as the defendants are concerned. As to them it is not res judicata. And when, as in this case, the judgment is made the basis of an action to obtain a decretal order to sell the lands in their hands as devisees to pay the debt of their testatrix, they have the right to contest the claim as freely as if it had not ripened into a judgment. They may, as we have already shown, set up the defense that it was not a valid debt against their testatrix, or they may plead laches or any other good defense. They may plead the statute of limitations as running in their favor in a proper case.
But in this case the statute did not begin to run when the plaintiffs held a past due obligation of the testatrix and the defendants held lands devised and liable therefor, as was held by Judge Gage. The statute began to run only after the remedy against the executor had been exhausted. The judgment was recovered in March, 1895, execution issued and nulla bona returned thereon. This action was commenced in April, 1899, only four years after the remedy against the executor had been exhausted. It is clear, therefore, that the statute of limitations could not properly be set up as a defense by these defendants, and that the plaintiffs' first ground of demurrer directed against that defense should have been sustained; and that it was error in the Circuit Judge to overrule it.
It is the judgment of this Court, that the decree of the Circuit Judge herein be reversed, in so far as it overruled the plaintiffs' first ground of demurrer; and that in all other respects the judgment of the Circuit Court be affirmed, except as to the right of homestead, which was left open by the Circuit Judge, and that the case be remanded to the Circuit Court for the purpose of hearing and determining the claim of homestead, with leave to the defendants to apply to that Court for such amendments to their answer as may be deemed necessary to bring before the Court all such facts as may be pertinent to the claim of homestead. *353