Cleveland v. Mills

| S.C. | Mar 30, 1878

The opinion of the Court was delivered by

McIver, A. J.

This was an action to subject certain lands, of which Nancy R. Mills died seized and possessed, in the hands of the defendants, as her heirs and devisees, to the payment of a debt due the plaintiff by Nancy R. Mills, by reason of her guaranty of a note. The defense principally relied upon was the Statute of Limitations, and no other question is presented for our consideration.

The statute did not commence to run in favor of Mrs. Mills until the 21st December, 1866, it having been suspended until that time by the fifth Section of the Act commonly called the Stay Law, (Harllee & Pressley vs. Ward, 15 Rich., 231,) and if she had lived would have run out on the 21st December, 1870. She, however, having died some time in April, 1870, (the precise day not being stated and not being material,) during the currency of the statute, by virtue of the provisions of the Act of 1789, (Gen. Stat., Chapter CIX, § 10, p. 509,) a further period of nine months must be added.— Moses vs. Jones, 2 N. & McC., 259; Lawton vs. Bowman, 2 Strob., 190. The result, therefore, would be that the action against her executor or administrator would not be barred until the 21st September, 1871, some months after this action was commenced.

The defendants took possession of the real estate as heirs and devisees of Mrs. Mills, at what particular time does not appear, but, necessarily, after her death in April, 1870. No question has been made, either here or in the Court below, as to the necessity of making the executor of Mrs. Mills a party, and, therefore, we are precluded from considering it or determining anything on that point. It is concluded, on the part of the defendants, that while it may be true that the action was not barred as against the executor of Mrs. Mills, when it was commenced, by virtue of the provisions of the Act of 1789, yet this action being against heirs and devisees, and not against the executor, the provisions of the Act of 1789 do not apply, and that without the addition of the nine months provided for by that Act, and the decisions thereon, this action would have been barred as against them on the 21st December, 1870, precisely six months before it was commenced. They, therefore, requested the Circuit Judge to charge the jury to this effect, and excepted to his refusal so to do. It must be remembered that this is not an action to recover from the defendants the amount of a debt due by the testatrix, for the defendants cannot be held liable, personally, at all. If the property which has gone into the possession of the defendants, as heirs or devisees, had proved to be of less value than the amount of the debt, the plaintiff could only recover to the amount of such value by subjecting the property to the payment of the debt as far as it would go, and for any deficiency they would have no claim against the defendants personally. It is, therefore, as has been above stated, an action to subject the lands of the debtor, Mrs. Mills, in the hands of these defendants as heirs and devisees, to the payment of her debt, and it is founded upon the equity which creditors have to follow the assets into the hands of heirs and devisees to obtain payment of their debt. The question, therefore, is, not whether the defendants owe the debt, for there is no pretense that they ever did, but whether the testatrix owed it; Dot whether the right of action on the debt against the defendants is barred by the Statute of Limitations, for, strictly speaking, there never was such a right of action, but whether the right of action on the debt against her or her executor is barred. Any other construction would involve not only great injustice to an indulgent creditor but would result in depriving him of his plain legal rights by reducing the statutory period which would bar his action. Take this very case as an example. The plaintiff certainly could, without detriment to his legal rights, indulge his debtor, and postpone the bringing of his action to any day within the period of four years from the 21st December, 1866. But if the theory of the defendants is allowed to prevail, this period would be reduced to three years and four months. For assuming, for the sake of convenience, that Mrs. Mills died on the 21st April, 1870, the plaintiff could not bring his action -within nine months from that day, that is, until the 21st January, 1871, a point beyond the statutory period as contended for by the defendants; because if he brought it against the executor the Act of 1789 would certainly apply, and if he brought it against the defendants alone there can be no doubt but that they could force him to make the executor a party defendant, and then the executor could plead the nine months’ exemption. If, then, as defendants contend, the nine months’ exemption is not to be added to the statutory period in this case, the plaintiff, instead of being allowed four years, would be forced to bring his action within three years and four months — that is between the 21st December, 1866, and the 21st April, 1870.

It is very true that Wardlaw, Ch., in Sollee vs. Croft, (7 Rich. Eq., 40,) expressed a doubt whether the provisions of the Act of 1789 above cited applied to proceedings in equity, but this being a mere passing observation, not necessary to the point decided in the case, is not authority; and while we are disposed to pay the utmost respect even to the dieta emanating from that eminent Chancellor, we may be permitted to say that this doubt, however well founded it may have been at that time, could scarcely be entertained now since the abolition of all distinctions between the pleadings at law and in equity. The Chancellor’s doubt is founded upon the terms of the Act which exempts executors and administrators from “ any action for the recovery of the debts due by their testators or intestates,” for, as he says, “ a bill in equity is not strictly an action, and a claim for account is not strictly a suit for a debt.” But since, by the provisions of the Code of Procedure, the term “ action ” is equally applicable to proceedings in which equitable relief is sought as well as those for the recovery of demands of a strictly legal character, and as the General Statutes, adopted subsequently to the Code, provides that “ No action shall be commenced against any executor or administrator for the recovery of the debts due by the testator or intestate until nine months after such testator or intestate’s death,” there would seem to be now no ground for the doubt expressed by the learned Chancellor. And in reference to this particular case we may add that this was an action not.for an account, but the recovery of a debt due by the testatrix.

The only defense, therefore, that could avail the defendants would have been either to show that there was no such debt due by the testatrix or that the action thereon against her executor was barred by the Statute of Limitations, which they might do, even though the executor should omit to interpose such a defense (Bird vs. Houze, Sp. Eq., 250,) or to show such laches on the part of the plaintiff as would deprive him of the right to invoke the equity powers of the Court, as in Mobley vs. Cureton, (2 S. C., 140,) or to have relied on their own possession for the statutory period, as in Miller vs. Mitchell, (Bail. Eq., *437). None of these things have they shown, and, therefore, there ivas no error in the refusal of the Circuit Judge to instruct the jury as requested by the defendants.

The motion is dismissed.

Willard, C. J., and Haskell, A. J., concurred.