Burgess v. Gates

| Vt. | Feb 15, 1848

The opinion of the court was delivered by

Red field, J.

There seem to us to be three difficulties, or doubts, in regard to maintaining the present suit; — 1. Whether the right of action survives, so that, had it been presented in proper time, it could have been allowed by the commissioners? 2. If that be so, whether chancery has any appropriate jurisdiction in the case? 3. Whether the whole matter is not barred by the omission to present it before the commissioners ?

I. In regard to thé first point, it seems very clear to me, that, during the life time of the parties, such a claim as the present is local. It is so, certainly, by our statute. It seems clearly to be so, at common law. And it seems to be so held by the New Hampshire courts, and so esteemed by the bar there.

• II. We think it clear, that by the law of New Hampshire, where the cause of action accrued, and where it was strictly local, it did not survive, but died with the party. At common law, all actions of tort, both for and against executors and administrators, died with the 'person. 9 Petersd. Ab. 342; Wheatty v. Lane, 1 Saund. R. 209, n. 1; Bac. Ab., Tit. Ex’r & Adm’r, P, 2. And as the statute of 4 Edw. III., ch. 7, gave no remedy against executors or administrators, for torts committed by the testator or intestate, no action in the English courts can now be maintained, where the proper plea is not guilty. This is the rule laid down in the case of Hambly v. Trott, Cowp. 372; and that case seems to have been followed in England, although sometimes doubted in the American courts. Greenleaf’s Cases Overruled, 162. Hence we infer, that an action like the present would-not survive, either at common law, or by the statute of Edward. The rule in regard to actions in favor of executors, under the statute of Edward, is more favorable, it being the express object of that statute to make it so.

III. By the statute of this state, since the revision in 1839, we suppose such a cause of action, accruing in this state, will survive against the executor. And as this is the principal administration, all transitory causes of action should properly be here presented.

At the time this opinion was delivered, I was inclined to think, that, if this difficulty were the only one in the case, it would not be wholly insurmountable. But, upon farther reflection, I more incline to believe it is. For unless that be so, we give the claimant an advantage be is not entitled to, by the law of the place where the cause of action accrued, and where it was strictly local, by regarding both the locality of the action, and its demise with the person, as something pertaining exclusively to the remedy. I now think it goes beyond the remedy, and is a fatal infirmity in the cause of action itself. I see no reason, why this plaintiff, in presenting his claim before commissioners, should stand any better chance of recovery, than he would against the testator in his lifetime; or why he should be in any better condition, than if the administration were in the forum, where the cause of action accrued. I think it safe to affirm, as a general rule, that if the action could not be maintained against the testator, it cannot be against the executor, — hut not vice versa. I think the demise of the action with the person may be treated as of the remedy perhaps, and so not affect a mere transitory cause of action; but as applicable to a cause 'of action strictly local, I think it may be otherwise; or at all events, that, the cause of action remaining local, it is, by the decease of the person, effectually gone for all purposes.

In regard to the second general question in the case, it seems to us very clear, that a court of chancery has not any appropriate jurisdiction of cases like the present. It is difficult to say, under what department of chancery jurisdiction this case is to be brought.

It is hardly allowable to suppose, that the orator or his counsel expect to succeed upon-the ground of fraud. This cause of action does not necessarily depend upon the character of the infirmity in the testator’s title to the land. There is no doubt the testator supposed he had good title to the premises; and no doubt that he had good title, by the law of this state, where the testator resided, and with reference to which he acted. But by the law of New Hampshire he was guilty of a constructive fraud, in not taking a technical mortgage to secure his debt, instead of an absolute deed, as he did, Jetting the defeasance rest in parol.

So, also, what the testator did in resisting the claim of this orator, this court have no doubt was done in the most perfect good faith. The conduct of a party, in prosecuting or defending a claim in a court of justice, can never, I apprehend, be any ground of relief in a court of equity, upon the ground of fraud, or obstinacy.

We think, too, that there is nothing of that kind of accident in this case, which will give a court of equity jurisdiction of the matter. All that is urged in argument, as we understand the counsel is, that the claim was contingent at the time the commission closed, by reason of the pendency of the writ of review. The counsel, learned in the law in the state of New Hampshire, and they are known to the court to be of the very highest respectability, do not consider, that the writ of review interposed any impediment in the way of the plaintiffs prosecuting his claim for mesne profits. And it does not appear to us, that this judgment upon the title to the land-was any more contingent, by reason of the pendency of the writ of review, than every judgment is, while it may be so reached by any process, as to defeat its final execution. This may be done in almost any supposable case, by petition for new trial, audita querela, writ of error, or injunction from the court of chancery.

We have no doubt, that at common law the owner of land may, by an entry upon the land, and thus re-investing himself with the actual seisin, sustain trespass for mesne profits, without bringing ejectment at all. It is testified to us, that by the law of New Hampshire the owner of land may maintain such action, upon the mere force of his title, without an entry even. And there can be no doubt whatever, that, upon an entry merely, the plaintiff’s claim for mesne profits would have become perfect, without reference to the judgment. The portion of the argument, which goes to show, that the claim is contingent, applies mainly, and is so treated by the counsel, to the next point in the defence, upon the ground, that, being contingent at the time the commission closed, by the statute, it would not be required to be allowed, and, if not allowed, might still be good against the assets in the hands of the defendant; — and that a court of equity is the appropriate tribunal to seek redress in such case.

But to the court it seems impossible to doubt, that this claim, whatever it was, is fully barred, by not being presented before the commissioners. It may indeed be true, that a matter of exclusive chancery jurisdiction might not be so barred, by not being presented to the commissioners. Sparhawk v. Adm’r of Buel, 9 Vt. 42. Perhaps it may be somewhat questionable, whether even this exception be at all necessary. I see not why commissioners of an insolvent estate may not, in the first instance, have jurisdiction of merely equitable claims, without objection. To that extent the rule is settled. But beyond that there is no necessity whatever, that a court of equity should entertain jurisdiction, after the commission is closed. If that were to be done in cases like the present, it must be merely to get rid of the statute bar, — which certainly is not allowable. No one can reasonably entertain a doubt, that this suit was instituted in the court of chancery, because the commission was closed, hoping that that court might devise some means, by which the operation of that bar might be escaped from. But the thing seems to us impossible, short of the utter confusion of all distinctions between the jurisdiction of courts of chancery and of common law.

ThS bill was properly dismissed by the chancellor, and his decree is affirmed, with additional costs.

Cause remanded to the court of chancery.