On the 4th day of June, 1821, the court considering a hill filed in January, 1821, as being both a bill enjoining the decree rendered at the November term, 1S20, and a petition for a rehearing, opened the decree rendered in November, 1S20, and referred the accounts to the commissioner for a resettlement, with instructions to settle, also, the administration of the estate of Thomas Muse, by Elliott Muse. [Case No. 2,916.] In December, 1821, the commissioner made his report, which was taken up a few days thereafter, and a decree pronounced, directing Z. U. Crittenden, administrator. &e., of Elliott Muse, deceased, out of the assets of his testator, in his hands to be administered, to pay the plaintiff the sum of $3731.32, with interest on $3171.42, from the 20th of November, 1821, till paid; and the court reserved, to a future day, its decision on the ultimate responsibility of the parties. [Id. 2,917.] In May term, 1S22, the said defendant, Z. U. Crittenden, administrator, &c., produced two records of suits, pending against him as administrator, in the state court, in Williamsburg, on claims of the highest dignity, and prayed, that the inter
The principle on which the decree of November, 1820, was opened in May term, 1821, was that the decree of May, 1811, ought to be apportioned equally on the estates of Elliott and Thomas Muse, unless the representatives of one of those estates, could show that the other ought to be charged with more than a moiety of that decree. That principle is still believed to be correct. The accounts, as now exhibited to the court, furnish no evidence on this subject, other than two entries on the books of Elliott Muse, as executor of Thomas Muse, in which he credits himself as follows: “1813, March Oth, to cash in discharge of testator’s proportion of decree, Coates’s Executrix v. Muse's Administrators, including interest and costs of suit, $2411.54%. June 10th, to amount of your proportion of a balance not charged in a former account of a decree in fed. ct. Muse’s Administrator v. Coates’s Executors, $1602.90.”
The respective liabilities of Elliott and Thomas Muse, having been known only to themselves, this is the only testimony now attainable on tills point. The entries of Elliott Muse cannot increase the liability of Thomas Muse, but may diminish .it. If, therefore, these two sums which were obviously intended to comprise Thomas Muse’s part of the decree be less than a moiety of the decree with interest and costs, these entries amount to an admission on the part of Elliott Muse, that the estate of Thomas Muse was not liable farther, and that he ought himself to pay the residue. This conclusion is rendered irresistible, by the circumstance, that at the date of the last entry, Elliott Muse considered the whole decree as being transferred to him by the paper of the ISth of March, 1S13, executed by the attorney of the plaintiff, and of course, charged the estate of his testator with the whole sum for which it was liable-on the decree. The deed of trust, which is supposed to be referred to in this paper of the ISth of March, 1S13, is prepared in, blank in one handwriting, and afterwards filled up in another. It is dated the ISth. of March, 1811, three months before the decree was rendered, and is filled up to John Gray, agent for the plaintiff. It was, obviously from the expressions of the deed, filled up in the year 1S13, before the 3d of June, and was probably filled up and executed on the 18th of March, 1S13, when the receipt or assignment was executed. This deed having never been recorded, and Elliott Muse having sold the land, and received the money, for which he has never accounted, it is obvious, that he must remain liable to the plaintiff in the same sum as if this transaction had never taken place. Were Elliott Muse alive and solvent, there-could be no difficulty in decreeing him to-pay the whole sum. But he is dead insolvent, and the whole difficult}' of the case consists in determining, how far the representative of Elliott Muse is chargeable with a devastavit for having paid debts of inferior dignity to the decree of the 3d of June, 1811. A decree is not, in law, assignable, but is like any other chose in action, transferable for a valuable consideration, and a court of equity will support the transfer. If, therefore, the estate of Thomas Muse, had been represented by any other than Elliott Muse, and such representative had, without knowledge of the fraud, paid his part of the decree to Elliott Muse, this court would unquestionably have sustained the payment. But as no money was really paid by the estate of Thomas Muse, nor any injury sustained by his estate. in consequence of this credit in his. account by Elliott Muse; as the person committing the fraud was the representative of Thomas Muse, it seems unreasonable to deprive the creditor of his recourse against Thomas Muse, for so much as was equitably due from his estate. Had Elliott- Muse never made this entry in his accounts, it would be admitted, that the liability of Thomas Muse remained; and I cannot think, that this entry changes his liability, unless it should appear that he has sustained an injury from it. The question of dignity is unimportant in this part of the case, because the estate of Thomas Muse is solvent. In a suit instituted in a court of chancery for the state, an account was taken of the administration of Elliott Muse, of the
It is contended on the part of the representative of Thomas Muse, that as all the parties are before the court, the representative of Elliott Muse, ought to be decreed to pay to the plaintiff, the sum due from the estate of Thomas Muse: and the court is of that opinion. The plaintiff, therefore, is in the place of a representative of Thomas Muse, as to that part of the decree, and is in virtue of the rights of that representative, a creditor of the highest dignity. Z. U. Crit-tenden, the administrator of Elliott Muse, deceased, will, therefore be directed to pay to the plaintiff, the sum of $-, that be-
ing the sum the plaintiff has a right to demand from the estate of Thomas Muse, and which is due to that estate, from the representative of Elliott Muse. The decree which ought to be pronounced against Z. U. Crit-tenden, the administrator of Elliott Muse, deceased, for the residue of the decree of the 3d of June, 1811, remains to be considered. It is contended by the plaintiff, that the whole transaction between William C. Williams, the attorney for the plaintiff, and Elliott Muse, on the ISth of March, 1813, ought to be considered as a nullity, in consequence of the fraud committed by Elliott Muse, in selling the mortgaged property, and converting the money to his own use. I cannot concur in this opinion. There is certainly no positive evidence of the concurrence of the plaintiff’s agent, in the arrangement of the ISth of March, 1813, but when it is recollected, that the name of the agent is intro-■dueed into the deed of mortgage, that the .agent himself, states the deed to have been executed, about the time the paper of the ISth of March was signed, that there must Thave been a free course of communication •between the attorney at law, and the agent,
I must conclude, that the agreement of the 'ISth of March, was made with the knowl>edge and consent of the agent. The effect of that agreement was, to take the deed of mortgage in satisfaction of the decree, and to transfer the decree itself, so far as relates .to the question now before the court, to .Elliott Muse. The motives for making this •arrangement were, at the time, satisfactory to both parties, and the court has no right to suppose they were inadequate. The contract was, then, at the time, a fair and valid contract, the obligation of which, neither could controvert. Had an attempt been made, immediately to enforce the decree of 1S11, the court wbuld not have enforced it; and if the plaintiff could have proceeded without the aid of the court, she would have been enjoined. Had the deed been recorded, or had Elliott Muse abstained from selling the property, the plaintiff could never, in the face of the agreement of March, 1813, have proceeded on the original decree. She could only have proceeded on the mortgage. Had the mortgaged property been insufficient to satisfy the decree, the plaintiff could not have proceeded against Elliott or Thomas Muse, or their representatives, for the sum remaining unsatisfied. The neglect of the plaintiff to record her mortgage, and the fraud of Elliott Muse, in selling the property, and misapplying the money, leave Elliott Muse responsible on the deed of mortgage, but not on the original decree. The debt, therefore, is a debt by specialty only; and as the suits instituted in the state court, are for debts of higher dignity, than a debt by specialty, the claim of the plaintiff, for the debt due from Elliott Muse must be postponed, to the claims of some of the plaintiffs in the state court. The decree of the third of June, 1811, comprehended the sum of £429. 9s., equal to $1431.50, not then collected, but in suit. This sum was considered as assets in hand, because the parties expressed a confidence, that it would be collected, and because the counsel for the plaintiff assured the court, of an arrangement being made, by which the decree would not be enforced, till this money should be received. Under these representations, the court gave, improperly, a decree for the whole sum, as if the assets had been in the hands of the administrators. If this money has not been collected; and if the failure to collect it, arises from no default of the administrators — if due diligence has been used, this error in the decree of 1S11, ought not to prejudice them, but ought now to be corrected.
Final Decree: This cause came on to be further heard, on the papers formerly read, and two abstracts of records filed by the defendants, and marked, respectively, Z. and Y., and was argued by counsel: on consideration whereof, the court confirming the report of Commissioner Barton, of the administration of the defendant, Robert Blakely, on the estate of Thomas Muse, and thefirststatementof the said commissioner, of the administration of the defendant, Z. TJ. Crittenden, on the estate of Elliott Muse, and being of opinion: 1st. That the outstanding claims, amounting to £429. 9s., which were considered in rendering the decree of the 3d of June, 1811, as part of the assets of Hudson Muse’s estate, in the hands of his administrators, were not assets, as they had not been reduced to possession, and that they ought not to be considered assets, chargeable to the defendants, or their intestates, because they have not been collected, and the failure to collect them