| Ala. | Dec 15, 1882
These causes, which are identical in their main features, were long pending in the Chancery Court. The bills were filed in 1867, and the decrees were rendered in June, 1881, dismissing the bills. The chancellor, in his opinion, points out certain alleged imperfections in the preparation of the causes, and adds, “ there are other irregularities.”
According to the averments of the bills and the proof, William II. Moore became largely indebted to Benjamin D. Harris, a resident of the State of Tennessee. Harris died intestate, and Letitia J. Harris was appointed and qualified as his admin-istratrix in the State of Tennessee. She brought these suits, as such administratrix, and in virtue of that appointment, under section 3886 of the Code of J876. She sues as a creditor at large and without a lien, and seeks to subject to the payment of her claims certain real estate, alleged to have been conveyed by Wm. II. Moore with intent to defraud his creditors. The conveyances were to his children, and recited large indebtedness as the consideration. When these bills were filed, the children, grantees in said deeds, were all infants under twenty-one years of age. William II. Moore, the debtor and maker of the notes, was made a party defendant, and was a necessary party.
“ Letitia J. Harris, adm’r, j Came the parties by their solic-v. >- itors, and comes also into open William H. Moore et al. ) court Hugh L. Clay, assignee in bankruptcy of respondent, William IT. Moore; and by his consent this Suit is revived [against] him as such assignee.”
At the December term, 1875, William H. Moore filed his plea of discharge in bankruptcy, accompanied by a copy of the certificate of discharge, which shows that it was granted October 27, 1870. This is the only pleading by Wm. H. Moore found in the record; and no decree pro oonfesso was taken against him.
On the 27th January, 1S77, there was filed in the register’s office the written admission of complainant’s counsel that Wm. H. Moore had received his certificate of discharge in bankruptcy on 27th October, 1870. The record contains no answer or other pleading by Hugh L. Clay, the assignee, nor were any decrees pro oonfesso taken against him.
Much of the testimony of complainant was taken in 1868, and the parties continued to take testimony, at intervals, up to 1879.
It can not be gainsaid, that Wm. H. Moore, until he became an adjudged bankrupt, was a necessary party; and that any testimony taken before that time, without first putting the cause at issue with him, if any testimony was so taken, was irregular; and such testimony can not be looked to, as proving anything. — Hule 51, Ch. Practice. It is equally clear that, after said Moore was adjudged a bankrupt, and Hugh L. Clay was appointed his assignee, he became a necessary party, and testimony could not be lawfully taken in the cause, until it was put at issue with him. The result is, that none of the parol testimony taken in the cause, was lawfully taken, and the aver-ments of the bill are unsustained by proof legally taken. But we do not decide the causes on this ground.
Benjamin D. Harris, the intestate, as we have shown, was a resident of the State of Tennessee, at the time of his death. Letitia J. Harris, the complainant in these suits, became his domiciliary administratrix, and she brought these suits in that right. When these suits were commenced (in 1867), there was a resident administrator of said estate, appointed by the Probate Court of Madison county, Alabama, and discharging the duties of the trust. Our statute (Hev. 'Code, § 2293) then provided, that “ any executor, or administrator, who has obtained letters testamentary, or of administration, on the estate
So the law remained until 1877, — nearly ten years afterwards. A statute was then enacted, which became and is section 2637 of the Code of 1876. This was intended to so vary the former law, as to allow suits brought as these were to be prosecuted to judgment, whether brought before or after the enactment of the statute. The validity of the retroactive feature of this statute is claimed to be supported by Page v. Mathews, 40 Ala. 547" court="Ala." date_filed="1867-01-15" href="https://app.midpage.ai/document/page-v-matthews-admr-6507310?utm_source=webapp" opinion_id="6507310">40 Ala. 547 (limited in Carleton v. Goodwin, 41 Ala. 153" court="Ala." date_filed="1867-06-15" href="https://app.midpage.ai/document/carleton--slade-v-goodwins-6507355?utm_source=webapp" opinion_id="6507355">41 Ala. 153); Peevey v. Cabanis, 70 Ala. 253" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/peevey-v-cabaniss-6511242?utm_source=webapp" opinion_id="6511242">70 Ala. 253. The latter statute, however, did not repeal section 2294 of the Revised Code, which is retained, and constitutes section 2638 of the Code of 1876. That section declares, “It is necessary that the plaintiff, before a judgment is rendered, should prove to the court that he has complied in all respects with the provisions of the preceding section, and, failing so to do, he can not recover.” Among the provisions of the preceding section, it is enacted that such administrator of another State, suing in this, must record in this State a copy of the letter of administration, and give bond. Neither of these things is shown to have been done in this case. And section 2637 of the Code of 1876 permits an executor or administrator of foreign appointment to maintain suits, and recover or receive property in this State, only when he has previously recorded his letter of appointment and given bond; which fact he must prove to the court before he can recover.—Code of 1876, § 2638.
It is contended for appellant, that the failure of the present records to affirm these statutory requirements were Complied with, can. not become a question in this court. Cloud v. Golightly, 5 Ala. 653" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/cloud-v-golightlys-admr-6502064?utm_source=webapp" opinion_id="6502064">5 Ala. 653, is relied on in support of this argument. That case arose and was decided under the act of 1821, found in Clay’s Digest, 227, § 31. The act of 1821, though in many respects similar to the provisions of the Revised Code on the same subject, is in phraseology somewhat different. The requirements of the old law were, that unless the letters testamentary, or of administration, were recorded in the proper county, and a certificate thereof produced before judgment rendered, “ the court may direct a non-suit to be entered.” In the case of Cloud v. Golightly (supra), the suit was by a foreign administrator, and the plaintiff had judgment in the court be
The present statute is different. Its language (§ 2638) is: “It is necessary that the plaintiff, before a judgment is rendered, should prove to the court that he has complied in all respects with the provisions of the preceding section, and, failing so to do, he can not recover.” The chancellor dismissed these bills, and the records fail to show the plaintiff had complied with the provisions of that section — 2637. Counsel concede, in their arguments, that there was not a compliance writh these provisions; and yet we are asked to reverse his decrees, and to grant relief, in the total absence of such compliance. Can' we do so, in the very teeth of the statute, which declares that, in such conditions, the plaintiff “ can not recover? ” It should also be noted that, in these cases, there was a special plea, interposed in the court below, and insisted on there and here, that the complainant received her appointment in a foreign jurisdiction, and as such had no authority to maintain these suits. On this issue, was it not incumbent on the complainant, even under the act of February 5th, 1877 (Code, § 2637), to show herself entitled to decrees, by proving she had complied with its requirements ?
“ The statute of force when the transactions referred to in the bill occurred, authorized a foreign executor or administrator, who had obtained in any other of the United States letters' testamentary, or of administration, on the estate of a person who was not at his death an inhabitant of this State, to maintain suits, a/nd recover or receive property in this State, upon condition that, before judgment or receipt of the property, a copy of his letters, duly authenticated, was recorded in the office of the judge of probate of the county in which suit was brought, or property received; and giving bond, with two good and sufficient sureties, payable to, and approved by the judge of probate, in such amount as may be prescribed, to be determined with reference to the amount to be recovered or received, with condition to administer faithfully such recovery or property received. Before obtaining judgment, he was bound to prove a compliance with this condition; and when there had been a compliance with the condition, the recovery of judgment, or a delivery of the property to him, was a protection to the defendant, or person delivering the property, to the extent of such judgment, or value of such property.' — Code of 1876, §§ 2637-2640.
“ The statute is permissive, and prohibitory. It confers on
In Sloan v. Frothingham (same volume, 593), it was said:
“ In Hatchett v. Berney, at the last term, it was held, that our statutes were in their terms prohibitory of the exercise of any authority in this State, by executors or administrators deriving authority from a foreign jurisdiction, and that payment made to administrators appointed in Tennessee, the domicile of the creditor, of a debt secured by mortgage on lands situate in this State, could not be sustained against the claim to foreclose, of a domestic administrator, subsequently appointed, except so far as such payments had been properly applied in payment of debts, or in making distribution. Adhering, as we are constrained to do, to that construction of the statutes, the personal representatives of Cary, deriving their appointment from a tribunal in New York, not having recorded their letters of administration, and given bond, could not have received payment of the mortgage debt, if it had been tendered to them by the mortgagor. They could not have given any discharge, or entered on the record of the mortgage the fact of its satisfaction. The power of sale in a mortgage, in the language of the statute, is part of the security; and while the statute declares it may be exercised by any person, or the personal representative of any person, who becomes entitled to the money secured, it is intended that only such persons as are entitled to the money, and have the capacity of giving for it valid and operative ac-quittances, can or'shall exercise the power.”—See, also, Noonan v. Bradley, 9 Wall. 394" court="SCOTUS" date_filed="1870-04-18" href="https://app.midpage.ai/document/noonan-v-bradley-88172?utm_source=webapp" opinion_id="88172">9 Wall. 394.
It is no answer to this argument, that the claims sued on are now barred by the statute of limitations, and that therefore the defendants are not liable to a second recovery by the resident administrator. We are declaring a rule, which must be alike applicable to all cases. A conditional right to recover can not 'be enforced as matter of right, without showing a compliance with the conditions precedent to the assertion of such right.
We have stated above that the act of February 5th, 1877 (Code, § 2637), is, on its face, made retrospective; applicable to suits commenced before, as well as those commenced after its enactment. Without that statute, these suits could not be maintained, no matter how meritorious the claims they severally assert. The efficacy of the retrospective feature has been assailed ; but we prefer to remain uncommitted on that question, until it comes before a full bench.
Let the decrees of the’chancellor be affirmed.