8 Ga. 106 | Ga. | 1850
By the Court.
delivering the opinion,
Two questions were made upon this bill, before Judge Warren, in the Court below, by demurrer—
1. Whether the complainant was not barred by the Statute of Limitations; and
2. Whether there is equity in the case made.
The Court below held that there is no equity in the bill, and that the complainant is barred by lapse of time.
To a just consideration of the question of the Statute of Limitations, it. is necessary to determine what is the character of the demand sought to be enforced by this bill. It is founded on the breach of a bond for titles, conditioned that warranty title shall be executed by the obligor to the complainant, at a specified time, to a tract of land. The bill avers a breach ; that the obligor died intestate; that his widow administered on his estate, paid the debts, delivered to herself and appropriated as sole heir and distributee, the effects of the estate, and was dismissed by the Ordinary ; and that she intermarried with Montgomery, who, with her, is a party defendant. The prayer i.s for discovery, and a decree that the defendants pay two hundred dollars, with interest, from the maturity of the bond, as damage sustained by its breach. It is, in short, a bill to follow and apply the estate of a decedent, in the hands of a distributee, to the payment of a debt due, as damages for the breach of a bond. We hold it a debt due by bond, and not, as argued, a demand due upon open account. It is a specialty debt, and would rank as such-in the payment of debts by an administrator. And to this point, see Davis and others vs. Smith and others, 5 Geo. Rep. 288.
We have no doubt about the equity of this bill. There is no question but that a creditor may pursue the assets of his debtor, in the hands of a legatee, distributee or purchaser from them. Questions of some nicely often arise in these cases, as to who shall be made parties — as to the liability, first, of the personalty, as to contribution, &c. &c. — none of which, happily, can be made in this case. The estate is charged to be ample for the payment of the debt — there are no other debts to pay — the defendant, Mrs. Montgomery, was the administratrix, and also, the sole distributee. All the estate went into her hands, first, as administratrix, and then as distributee. Having intermarried, her husband is also made a parly. There is, therefore, nothing to hinder, in any view of it, a Court of Chancery from making a decree which
Let the judgment be reversed.