13 Gratt. 257 | Va. | 1856
I am of opinion that the third plea offered by the plaintiffs in error that Clement one of the persons to whom the bond sued on was made payable, was not one of the justices sitting in the court at the time the bond was executed, was naught and was properly rejected by the court. By the bond itself the parties who executed it acknowledged and declared that the four persons to whom it was made payable were justices of the county, then sitting, and it was acknowledged by them in open court and ordered to be recorded. They are therefore estopped now from averring the contrary upon the general principles of estoppels. But if there were any doubt about this,
The defendant in error having given in evidence the bond of Rosser and his sureties, the decree of the 12th of October 1850, the execution sued out upon that decree and the return “no effects” showed herself prima facie entitled to recover in this action unless her right was barred by the statute of limitations; and this is resolved into the enquiry when the cause of action accrued.
By the fifth section of chapter 149 of the Code, p. 591, it is provided that every action upon a bond of an executor, administrator &c. shall be brought within ten years next after the right to bring the same shall have first accrued; and by the sixth section it is declared that the right of action of a person obtaining execution against any ¡personal representative of a decedent or to whom payment or delivery of estate in the hands of such representative shall be ordered by a court acting upon his account, upon the official bond of such representative, shall be deemed to have first accrued from the return day of such execution or from the time of the right to require payment or delivery upon such order. If this provision is to furnish the rule of decision here there is an end of the case ; for the decree in favor of Mrs. Depriest was rendered on the 12th of October 1850 ; the execution sued out thereon and returned “ no effects” was dated 21st of November 1850 and was returnable on the first Monday in January 1851, and the suit was brought on the
Waiving any enquiry into the correctness of this last proposition, let us briefly consider when the cause of action upon this bond for the matter in controversy should be said to have accrued independently of the provision of the statute.
The subject sought to be recovered was the share of Mrs. Depriest in the hires of a slave named Squire as to which the testator appears to have died intestate; for which hires she claimed that the executor was liable to account. Rosser the executor had sold this slave in 1825 and purchased him, himself, and he claimed to hold him afterwards as his own property; whilst Mrs.
Depriest insisted that he was to be considered as a part of the estate of the testator notwithstanding the sale, and so that the executor should account for the hires for all the time the slave was held by him. The executor had not settled his accounts, and there was therefore nothing to show the balance in his hands by which a foundation could be laid for the present demand. A suit in chancery became necessary to set aside the alleged sale, restore the ‘slave to the estate and hold the executor to an account of the hires.
Now upon this simple statement of the case it would seem impossible to say that this cause of action upon the executorial bond accrued at such a period that it was barred in January 1851 when this suit was brought. The case Was simply that of an executor who in 1850 was found to have in his hands assets of the estate of his testator which he was required by the
Whether therefore, Rosser the executor committed a breach of the condition of his bond by the illegal sale of the slave, or by failing to settle his account, or (if the sale be treated as a nullity) by failing to pay over the value of the slave and his hires to those entitled at an earlier period, it seems clear that after the amount of those hires was ascertained in the chancery suit and declared to be a part of the assets of the estate of his testator with which he was chargeable and when he was required by the decree of October 1850 to pay over the same to those entitled and execution in favor of Mrs. Depriest for her share was returned “ no assets,” there was a clear right of action in her favor upon the executorial bond to which the statute of limitations could have no application. See Beale's adm'r v. Botetourt Justices, 10 Gratt. 278, (opinion of Moncure, J.) which commenced some years before the Code of 1849 took effect.
Whether therefore the period, at which the cause of action upon the executorial bond for the matter in controversy here, shall be said to have accrued, be determined by the provision in the Code already referred to, or upon general principles, the result is the same. In neither case has the statute of limitations any application. The provision of the Code is in effect but declaratory of what the law would have been without it in this precise case.
That the securities might have been made parties in the chancery cause and in fact were at one time made parties but the bill was afterwards dismissed as to them will not impair the present right of action on the bond. Parties may often proceed in equity against an executor and may also make the sureties parties in the cause with a view to their ultimate liability. But
That the decree was de bonis testatoris and not de bonis propriis is a matter which cannot avail the appellants. The appellee might complain that the decree was restricted to the assets in the hands of the executor, and for that cause might have claimed a reversal in an appellate court. Moore's ex'x v. Ferguson, 2 Munf. 421; Sheppard's ex'or v. Starke, 3 Munf. 29. But it could not prejudice the sureties and certainly cannot render the decree fraudulent and void as to them. The form of the decree was the act of the court and not of the party or her counsel and there is nothing in the case upon which fraud in fact or in law can with any justice be imputed to either of these. If the decree were even erroneous as contended by the
I think none of the grounds of error assigned can be maintained: and I am of opinion to affirm the judgment.
The other judges concurred in the opinion of Lee, J.
Judgment affirmed.