3 Fla. 219 | Fla. | 1850
This proceeding was instituted by scire facias in the Circuit Court of Gadsden County by James M. Gilchrist, Judge of Probate, &c., for the use of John M. W. Davidson, administrator, &c. of Edward H. Wilder, deceased, against Banks Meacham, administrator of William D. Harrison, deceased, against which said Banks Meacham as aforesaid, theretofore, to wit: At the Spring term of the Superior Court of said County, in the year 1844, David L. White, Judge, &c., the predecessor in office of the plaintiff in this suit, had recovered a judgment for a debt of eight thousand dollars, upon a certain writing obligatory, bearing date the 15th day of April, in the year 1836, whereby the said William D. Harrison, with one William H. Wilder and one Ira Sanborn, became jointly and severally held and jointly bound unto the said David L. White, Esq., Judge of the County Court for the County of Gadsden aforesaid, and his successors in office, in the said sum of $8,000, to be paid, &c. under a certain condition, reciting that, whereas the said William H. Wilder had that day been duly appointed guardian of the persons and property of Jesse W. Wilder, Betsey L. Wilder, Edward H. Wilder and Godfrey S. Wilder, minors and orphan children of Hezekiah Wilder, late of Gadsden County, deceased, it was declared that if the said William H. Wilder should well and truly perform the duties of guardian to the said minors, agreeably to the statutes of the said (then) Territory of Florida in such case made and provided, then the said bond to be null and void, otherwise to remain in full force and virtue — which said sum so recovered was to be levied of the goods and chattels, lands, tenements and estate of the said William D. Harrison, deceased, in the hands of the said Banks Meacham, administrator, &c. as aforesaid, to be administex-ed ; and if the goods, chattels, laxxds, tenements and estate of said deceased whereon to levy could not be found, that then the same be levied of
First. Nul tiel record.
Second. Nondetinet.
Third. That he had folly administered, which he withdrew.
Fourth. That, on the 16th day of February, 1844, in the county aforesaid, he was by competent authority, to wit, by the order of the Judge of the late County Court of Gadsden County, duly and lawfully discharged of and from his administration of the said estate of the said William D'. Harrison, deceased, as appears by the record remaining in the office of the Judge of Probate for the said County of Gadsden. And this, &c.
Fifth. The same discharge; and that this suit hath not been commenced within five years from the date of the said discharge, but that more than five years had elapsed between the date of the said discharge and the date of the commencement of the same. And this, &c.
Sixth. That there was assessed in the former suit a large portion of the interest of the said Edward H. Wilder, deceased, &c.
To the first plea, the plaintiff filed a general replication.
And demurred to the second, assigning for cause- — 1st. That the plea is inapplicable, the recovery set forth in the scire facias being-the foundation of the suit. 2d. That the plea is contrary to what is admitted by the judgment.
The third plea was withdrawn.
The question presented for our consideration in this case is, whether the Court erred in overruling the plaintiff’s demurrers to the fourth and fifth pleas of the defendant. And as to this, it is contended on behalf of the defendant, that a plea of discharge to be good, must set forth that it was obtained prior to the commencement of the action, and as the discharge pleaded did not in fact exist at the time of the commencement of the original action, it could not have been pleaded to that action, and its having been obtained prior to the date of the original judgment, neither invalidates it, nor does it operate to impair its weight, as a defence to the present proceeding. That the objection to it is based upon the erroneous assumption that the pres
And the same remarks are applicable to the fifth plea — fray notwithstanding that plea sets forth an addition to the averment of the discharge as pleaded in the fourth plea, the limitation of five years— as the limitation is dependent upon the discharge, and dates from it, if the plea is not good as to that, it is bad “ in toto.” The radical defect of both of these pleas, is, that they were filed too late ; for it is a well settled principle, that the defendant cannot regularly to a scire facias to have execution of a judgment (which is precisely the case at bar) plead that which might have been pleaded to the original action; as where A., administrator to J. S., by virtue of administration granted to him by the Archbishop of Canterbury, brought debt against B.', and had judgment to recover, and after the year brought a scire facias on the judgment — the defendant pleaded that the intes. tate had nulla notabilia in divers dioceses, and that after the judgment, the Bishop of London committed administration to the wife. Upon demurrer, it was held, that this was a matter he could have pleaded before, and that it was annulling the record, which is not sufferable. 8 Bac. Abr., Ed. 1848, pages 624, 625, and numerous authorities there cited.
So, where in a scire facias on a judgment, the defendant pleaded the statute of usury : it was held no plea, because he should have pleaded it to the original action. Ibid, and authorities cited. So, if a scire facias be brought on a judgment in assize for the office of Marsha], the defendant cannot plead that the plaintiff was an alien enemy, for that was pleadable to the assize. And as he admitted the plaintiff able to have judgment, he cannot now disable him to have execution. 2 Lord Raymond, 853. In the case of Wilson vs. Hurst’s executors, 1 Peter’s C. C. R., 441, the Court held, “that a payment which might have been pleaded in bar to an original scire facias to revive a judgment, cannot be pleaded or given in evidence on a second scire facias.” It is a maxim in law, that there can be no averment in pleading against the validity of a record, though it may be against its operation ; therefore no matter of defence can be pleaded
In the case of Sessions vs. Stephens, 1 Flor. Rep., 241, this Court said, “ there can be no judicial inspection behind the judgment save by appellate power,” citing Voorhees vs. Bank of the United States, 10 Peters’ Reps., 499, and Grignons’ Lessees vs. Astor, 2 How., 343. In a note to the case of Trethewy vs. Ackland, 2 Saund. Rep., 51, it is said that “ It has been adjudged that the defendant, the executor, may confess a judgment to a creditor of equal degree with the plaintiff pending the action, and plead it in bar, and though it be done for the express purpose of depriving the plaintiff of the debt, it is good both in law and equity,” citing Waring vs. Danvers, 1st P. Wms., 295, which fully sustains this principle, and see 1 Saunders’ Reps., page 333, d, note e and authorities there cited.
In Coleman vs. Hall, administrator, 12 Mass. R., 572, the Court said “ It is perfectly well settled in the English Courts, that an executor or administrator cannot plead pleneadministravit to a scire facias on a judgment obtained against him.” The learned counsel who argued this case for the defendant (in the Court below,) the appellee in this Court, held the pica of discharge to be analagous to the plea of jplene adminisiravit — if it be so, it would seem that it cannot be pleaded by an administrator or executor to judgment obtained against him since such discharge was granted. When it is said in the books 'that an executor or administrator may, to debt on judgment, plead flene administravit, it means according to our view of the matter, a judgment obtained against the testator or intestate in his life time, of which such executor or administrator had no notice before he had .fully administered.
When an administrator is sued in England, if he does not dispute the justice of the demand, he has only to consider whether he has in his hands goods and estates of the deceased sufficient to pay the debt,
The view which the learned counsel for the appellee took at the argument of this case, that the plea of discharge, to be good, must set forth that it was obtained prior to the commencement of the suit, is not, we think, in accordance with the principles assumed and maintained by the majority of this Court in the case of Gadsden vs. Jones, administrator, 1 Flor. Reps., 332 to 346, which we have again reviewed, and with the decision in which we perceive no cause to be dissatisfied. One of the positions most strongly relied on in that case, was, “that Jones, the administrator, having had notice of the plaintiff’s (Gadsden’s) demand, his duty, as administrator, was fixed by law, and from that responsibility it was not the design of the’ Legislature to release him; that it would have been no valid objection to the release contemplated by the statute for any creditor to object that he had not yet paid a debt of which he had notice The ready answer would have been, “ I retain for it,” (see page 334.),-But the Court held the plea of discharge good in that case notwithstanding the alleged notice, on the ground (see page 344,) that the discharge was a judgment of a Court of competent jurisdiction which we were not at liberty to disregard, and that such judgment was rendered “ in a proceeding where the Court (after due notice) acts upon the application of the party to whom administration was granted,, (and who seeks a discharge) and cannot grant such discharge until it shall appear that the said applicant has faithfully and honestly discharged the trust and confidence reposed in him or her.” See page 339.
And after stating the evil, which, as the Court believed, led to the passage of the act, under the authority of which the discharge was granted, the Court said — “ The remedy intended by the Legislature-was, we think, a speedy release from the duties of executor or executrix, administrator or administratrix,, after a faithful and honest discharge of the trust, (page 341,) so far as regarded suits against
In the case of Parkhill’s administrator vs. The Union Bank of Florida, the revocation of letters of administration, and the delivery of the assets to the sheriff under an order of the Court, was pleaded puis darrien continuance, and held good — 1 Florida Rep., 123 to 129 — and the Court in that case said : “ Thateo instanti letters of administration were taken from her, (the administratrix,) she became as to the suit civiliter mortua.” And in Gadsden vs. Jones, administrator, this Court held, “ that it was the duty of the Judge of the County Court, before granting the discharge, (set up as a defence in that case,) to see that the defendants had well and truly administered, paid all the debts so far as the assets extended, and made a fair distribution of all the rest and residue of the estate according to law,” (ibid, page 340 ;) “ and that the discharge when thus obtained should be an immediate and effectual bar to suits instituted against the parties (charging them) in their fiduciary character.” Ibid, 345. And
In Georgia, under a statute similar to our own, by which the condition of the discharge of an executor or administrator is, that he “has faithfully and honestly discharged the trust and confidence reposed in him, the Supreme Court of that State held the discharge a bar, both at law and in equity, unless obtained by fraud — Carter vs. Anderson, 1 Georgia Reps., 517, 518 — and that in a case where infant heirs were claiming three distinctive shares of the estate. And in Smith et al. vs. T. W. Oliver, &c., Dudley’s Reps., 190, the Court, after stating the requirements of the statute to obtain a discharge, (which are the same as is required by our statute,) said, upon these requirements being fulfilled, the Legislature proceeds to enact “that the executor or administrator shall be forthwith dismissed and released from all his liability as executor or administrator.” “ There,” say the Court, “ is the finale, the legislative announcement, that the discharge is a release.”
In Rhode Island, their Probate Court has the power to grant to executors and administrators a quietus, which is in effect a discharge; and Mr. Justice Story, commenting upon the exercise of that authority by that Court in the case of Taylor et al. vs. Delilias, et al., 4 Mason C. C. Reps., 133, said: “ Much discussion has taken place as to the nature and effect of the quietus granted by the Court of Probate. I am not aware (he said) that it Is any where denied that the Court of Probate has complete jurisdiction in the settlement of accounts of administrators, or that its decree, when rightfully made, is not binding authority. Indeed, It would be difficult to support such a denial upon
The discharge being the judgment of “ a Court of peculiar and competent jurisdiction,” and being an immediate release — a release that might have been pleaded puis darrein continuance, is, unless obtained by fraud, an effectual bar to any suit brought or pending against such executor or administrator in his fiduciary character, when properly pleaded, and is, therefore, such a defence as, if it exist before judgment against such executor or administrator, ought to be pleaded, if he intends to avail himself of it; and if he fails to plead it then, and thereby admits the plaintiff’s right to have judgment, he cannot, after the judgment, plead it, to prevent him from having execution. The demurrer to the fifth plea should have been sustained
The judgment of the Court below is, therefore, reversed, and the cause remanded for further proceedings in accordance with this opinion.
Per curiam.