Dunlap v. Newman, 47 Ala. 429

Dunlap v. Newman

47 Ala. 429 | Ala. | 1872

PECK, C. J.

As, on the complainant’s final settlement of the estate of Bryan Boroughs in North Carolina, he was charged with, and accounted 'for, the promissbry note of Thomas Boroughs, described in and made an exhibit to the bill of complaint, the note became his property, and thereby he became a creditor of said Thomas Boroughs, and might have maintained an action on the said note in his own name. — Tompkies et al. v. Reynolds, 17 Ala. 109; Waldrop v. Pearson et al., 42 Ala. 636.

2. On the death of said Thomas Boroughs in Alabama, his estate, real and personal, became a fund for the payment of said note. — Rev. Code, § 2060. And, as the heirs-at-law, the children of Thomas Boroughs, without administration, took possession of said estate and converted it to their own use, they hold the same in trust for the benefit of complainant, as a creditor of said estate, and it may be subjected to the payment of his debt by a bill in equity, filed for that purpose. — Story’s Equity, § 546. No administration having been taken out on said estate, the complainant has no adequate remedy at law.

*4403. The complainant’s bill was demurred to, and many causes of demurrer assigned, presenting, in substance, the following objections:-l, that, the bill was without equity; 2, that there was a perfect and complete remedy at law; 3, that the effects of the estate of Bryan Boroughs were not sold at public auction, or by virtue of any authority of law; 4, that complainants’ claim was a stale demand; 5, that said claim was merged in the decree of final settlement ; and 6, that the statements of the bill were uncertain and insufficient, &c. The demurrer was sustained and the bill dismissed; but it does not appear whether for all, or for which of the causes assigned, the chancellor dismissed the bill.

After a careful examination, we are satisfied the bill is not without equity; and, although it is not as skilfully framed, nor its statements as full and carefully made as they might be, yet that they are not so defective as to justify its dismissal. •

Many objections are made to the sufficiency of the bill in the brief and argument of appellees’ counsel. We will consider such of them only as it seems to us need to be noticed.

1. First, it is objected that the bill does not show the complainant was appointed administrator of the estate of said Bryan Boroughs by any court or authority in law competent to appoint him administrator of said- estate: , >•

The bill states that said Bryan Boroughs died in.tlie county of Moore, in the State of North Carolina, prior to 1855; and that the complainant was duly appointed his administrator. We think this sufficient, without naming the particular court or authority by which the appointment was made. In a note to the case of Humphries v. Ingledon, 1 Peere Williams, 752, it is said that Lord Keeper North, when he first came into the court of chancery, was of the opinion that a plaintiff administrator ought to show by his bill where he had taken out administration, to the intent the defendant might be informed in what court to look for it, as it might be void if taken out under a wrong jurisdiction; but of late, the general allegation duly talcen *441out administration has been, held good, especially where (as on demurrer) the cause is not to be determined, but that the plaintiff must show-fois letters of administration at the hearing.

This note is referred to as authority in Story’s Eq. Pl. § 525, and in Daniell’s Pl. and Pr., vol. 1, 364. Therefore, we hold this statement sufficient. It is the province of pleading to state facts, not the evidence necessary to prove them.

The statement here made is, that complainant was duly appointed administrator, &e. If this statement is put in issue, then on the hearing it must be shown the appointment was duly made; that is, made by an authority competent to make it.

2. That the bill does not state that said final settlement was made in the proper court having jurisdiction thereof; that it does not allege that the said court of quarter sessions had jurisdiction of the final settlement of the estate of said Bryan Boroughs. The statement of the bill is, substantially, that said final settlement was made in the court of pleas and quarter sessions of Moore county, in the State of North Carolina, at the January term, 1860. This is sufficient. Judgments and proceedings in the several States do not stand on the same footing as the judgments of foreign courts proper, consequently the same strict rules are not to be applied to them. By the constitution of the Uhited States, (Art. IV, § 1,) they are placed upon much higher grounds, and, in many respects, are to be regarded and treated as domestic judgments; and in pleading, it is not necessary to set out affirmatively the authority and jurisdiction of the courts by which they are rendered. Especially is this the case when rendered by courts of record.—Gunn v. Howell, 27 Ala. 663. Prima facie, it is to be presumed that the court of pleas and quarter sessions of North Carolina has jurisdiction of the settlement of the estates of-deceased persons.

3. The objection that the note in this case is a stale demand, is without force. It is under seal, and not barred *442by the statute of limitations until ten years after its maturity. That period had not elapsed before the filing of this bill, after deducting the tim^Sie statute of limitations was suspended in this State by reason of the late civil war. Coleman v. Holmes, 44 Ala. 124.

4. It is further objected, that it is not stated in the bill that the effects of the estate of Bryan Boroughs were sold at public sale, under and by virtue of any order or decree of the court.of pleas and quarter sessions of Moore county, North Carolina. This was not necessary. When the said note, given by Thomas Boroughs for property of the estate of Bryan Boroughs, purchased by him of the complainant, as administrator, &c., was, on said final settlement, charged to the complainant, and accounted for by him, the said note became his property, whether the said sale was, or was not, made by authority of law. — Tompkies et al. v. Reynolds, supra.

5. The equity of complainant’s bill is not made to dejDend on the question of set-off, or of discovery. Its equity is based upon the complainant’s right to have the said note paid out of the assets of the estate of Thomas Boroughs in the hands of the defendants, and as no administration has been taken out on said estate, there is no adequate remedy at law. The statement in the bill, that complainant is, and always has been, ready and Avilling to permit the decree rendered in favor of Thomas Boroughs to be set off against said note, has the effect merely to show that the complainant is ready and Avilling to do equity.

The other objections made by appellees’ counsel do not seem to us sufficient to justify the decree of the chancellor in sustaining the demurrer and dismissing the complainant’s bill.

The decree is reversed, and the cause remanded for further proceedings, at the cost of the appellees.