Carter v. Hampton's Adm'rs, 77 Va. 631

Carter v. Hampton's Adm'rs

77 Va. 631 | Va. | 1883

Fauntleroy, J.,

delivered the opinion of the court.

Thomas W. Carter, on the 26th of February, 1880, instituted a chancery suit in the circuit court of Grayson county, and filed his bill (which was intended and prayed to be taken as a creditor’s bill) averring that Ezra Nuckolls and seven other persons, made their single bill, dated August 8th, 1854, binding themselves, jointly and severally, to pay to Griggs Hampton $2,300 on or before December 21th, 1862, with interest thereon from the 21th of December, 1852; that November 1st, 1856, the said single bill being unpaid, the same was, on that day, assigned to the said Thomas W. Carter for value in full received by the said. Griggs Hampton, and that the payment of the said single bill was guaranteed to the said Thomas W. Carter, or bearer “without plea or offset always, whether suit is brought for the collection of the same or not,” by a writing under the hands and seals of both, the said Griggs Hampton and his son, Andrew Hampton, at the said date of the assignment. That the said Thomas W. Carter did institute suit and recover judgment on said single bill, at the maturity thereof, against the obligors thereof; that execution of fi. fa. was duly issued on said judg*636ment, which was unavailing and was duly returned “no property.” That the said single bill was then still wholly unpaid, but that proceedings had been instituted by complainant in the circuit court of Oarroll county against some of his said judgment debtors, by which he expected to realize something, but certainly not enough to pay more than the interest, due upon said single bill. That the said Griggs Hampton was dead, and the said Andrew Hampton survived; that the said Griggs Hampton had died intestate, leaving assets, real and personal, but what and how much the said complainant did not know; and the bill prayed for an account, for a discovery of the real and personal estate of the decedent, Griggs Hampton, and what disposition had been made of it by his administrators, who, with his son, the said Andrew Hampton, and other children and heirs, were made defendants to the bill; and the bill prayed to be taken and treated as a creditor’s bill, and for general relief. The bill was demurred to by the said Andrew Hampton and Alexander Hampton, both individually and as administrators of the estate of Gi’iggs Hampton, deceased, chiefly on the ground of a want of equity in the bill, and that the complainant had a remedy at law. And on the 4th day of October, 1881, the circuit court of Grayson county sustained the demurrer and dismissed the bill, with costs, in a decree which set forth the sole ground of opinion “that the plaintiff has a complete and full remedy in his action at law.”

We think that the circuit court of Grayson erred in sustaining this demurrer and in dismissing complainant’s bill.

The suit was brought to administer the estate of the intestate, Griggs Hampton, and of having the assets of decedent first ascertained and then applied, by a court of equity, to the payment of a debt due to his creditor, and it was a creditor’s bill in intention and in fact; such a bill is maintainable in equity. 1 Spence Eq. Juris. 519 and 432.

The bill in this case prays for discovery of both real and personal assets, and for accounts showing what disposition has been *637made of them, and it may he brought by the creditor complainant alone, or for himself and the other creditors of decedent. Adams’ Equity, 257; 1 Story Equity Juris., sections 546-7; 1 Spence Eq. Juris. 579; Duerson’s adm’r v. Alsop et als., 27 Gratt. 229.

But it is objected, by the appellees, that the appellant could not go into equity because one of the joint and several guarantors is dead, and the other surviving, and that the appellant had a complete and adequate remedy at law against the living guarantor. Yet, in this case the appellant had a double resort, the one in equity against the personal representatives of Griggs Hampton, the dead’ guarantor, and the other, at law, against Andrew Hampton, the living guarantor. Code of Virginia, 1873, section 13, chapter 141; 2 Minor’s Ins. 751 and cases there cited; Asberry’s adm’r v. Asberry’s adm’r, 33 Gratt. 471. A creditor having two different securities, or two sets of obligors bound for the same debt, may proceed against both at the same time, though he can have but one satisfaction. Asberry’s adm’r v. Asberry’s adm’r, supra.

The prayer in this bill is for an account, and it is„disclosed by the record that the defendants, after demurring to the bill, prayed to have their answer to the bill taken as a cross bill, in which they asserted claim to credits, and prayed for an accownt, and their said cross bill was duly answered by the appellant denying all its charges.

We are of opinion that the decree of the circuit court of Gray-son complained of is erroneous, and must be reversed and-annulled, and this-cause is remanded to the said circuit court for further proceedings to be had therein in accordance with this opinion.

The decree is as follows:

This day came here the parties, by their counsel, and the court having maturely considered the transcript of the record of the *638decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in sustaining the demurrer to the plaintiff’s hill, and in dismissing the same; and the court is of opinion that the said demurrer should have heen overruled hy the said circuit court and a decree entered in the said court for the accounts prayed for in the said hill of the plaintiff, and the cause further proceeded in in the said court, to a final decree therein, upon the merits thereof. And this court being further of opinion, for the reasons hereinbefore referred to, that the decree aforesaid of the said circuit court is wholly erroneous, it is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellant recover against the appellees his costs by him expended in the prosecution of his appeal aforesaid here. And this court proceeding to enter such decree as the circuit court should have entered, it is adjudged, ordered and decreed, that the demurrer to the plaintiff’s hill he overruled, and the defendant pay to the plaintiff his costs hy him expended in the prosecution of his cause in the said circuit court. And this cause is remanded to the said circuit court of Grayson county for further proceedings to he had therein in conformity with the foregoing opinion, and the directions herein contained.

Which is ordered to be certified to the said circuit court of Grayson county.

Decree reversed.