77 Tenn. 596 | Tenn. | 1882
delivered the opinion of the court.
George M. Lyons died in June or July, 1867, and at the August term of the county court following, the defendant, W. H. Watterson, was appointed and qualified as administrator of the estate. On August 28, 1869, W. H. Watterson, as administrator of the intestate, 'filed his bill against A. S. Lyons and G. G. Lyons, the only heirs and distributees, to have the administration conducted in the chancery court, and to be authorized to sell land, which he, as administrator, had been compelled to purchase to save debts due the estate. No creditor of the intestate was ever made a party to this bill. On October 12, 1878, A. S. and G. G. Lyons filed a bill against Watterson, as administrator, for an ¡ account of his administration, and obtained an injunction enjoining him from further acting as administrator, and a further order appointing G. G.
The complainant Cooper claimed to be a creditor
The demands of the complainants were unconnected with each other, upon which separate suits might have been brought against the administrator for the recovery of judgment. Each complainant stands upon his own right of action. And this is so even to. the incidental matter of account, as much so as if the bill had been filed by one of them for himself and other creditors, and the other had come in by petition, and' made himself a party. Under the provisions of the Code, secs. 3155, 3159, if a decree adjudges independent rights it will remain in force as to those parties who do not appeal. The appeal of Galbraith does not, therefore, bring up the case as to Cooper, so far as the adjudication of Cooper’s debt is concerned.
Treating the bill as an action by the complainant Galbraith for the recovery of a judgment on his note against the administrator Watterson, the time of the bar of the statutes of two, sis and seven years has run out. The bill seeks to avoid the result by averring that the administrator “has made request for delay and promises to pay which prevent the bar of the statutes.” And there is proof tending to show such request, and repeated promises by the administrator to pay when he could get the money out of the Walters or the Phillips lands. Whether the request and promise were sufficient to save the bar of the statute of two years, and the pro-confesso order against the administrator would save the bar of ' the statute of • six years, it is unnecessary to enquire. A sufficient request for delay will not stop the running .of the statute for seven years: Loyd v. Loyd, 9 Baxt., 406. The statute' (Code, sec. 2786) is [a positive prescription, which not only affects the remedy, but extinguishes the right. It protects the estate of the decedent against all creditors of the decedent, whether the estate be in the hands of the personal representative, the heir or the distributees: Peck v. Wheaton, M. & Y., 353; Stone v. Sanders, 1 Head, 248; Rogers v. Etter, 8 Baxt., 13. Even the State is bound by the statute, because, as well said by Hammond, U. S. Dist.
Affirm the decree as to complainant Galbraith with costs.