35 Ky. 353 | Ky. Ct. App. | 1837
delivered the Opinion of the Court.
Upon a plea of plene administravit, to a scire facias sued out by Tilford against Flournoy, as administrator of Hutchcraft, to revive a judgment for debt which he had obtained against the intestate, in the county in which the administrator was appointed, and upon which a fieri facias had been returned nulla bona in the decedent’s lifetime — the administrator having, among other things, shown that he had paid the amount of a judgment which one McChord had obtained against him, on a note given by the intestate, the Circuit Court disregarded that payment, and rendered judgment for execution de bonis pro-priis, for sixty six dollars, and quando, for the residue of Tilford's judgment.
There having been no proof of actual notice to the administrator, of the existence of Tilford’s judgment, the decision of the Circuit Judge was erroneous — unless the record of the judgment should, per se, be deemed constructive notice; for it is well settled that a personal representative is not liable for a devastavit in paying debts of inferior dignity, without any notice of any debt of superior dignity.
The first reported case upon the question of constructive notice, to an executor or administrator, of a judgment against the testator or intestate, is that of Littleton vs. Hibbins, Cro. Eliz. 793, which was a scire facias against executors, for reviving a judgment in debt against their testator, and in which, upon a plea of plene administravit, the Court said, that, though the executors had exhausted all the assets in paying bond debts, before they had actual notice of the judgment, their plea was not sustained; “ for that they, at their peril, ought to take “ cognizance of debts upon record, and ought first of all ‘‘ to satisfy them,, and, although the recovery was in an- “ other county than where the testator and executors in- “ habited, it is not material.”
And the same rule was applied in the same way to a decree, in Searle vs. Lane, 2 Vern. 89, and Shafto vs. Powell, 3 Levinz, 355.
But in an anonymous case in And. referred to by Lawrence, Justice, in Hickey vs. Hayster, 6 Term Rep. 388, the Court said that an executor ‘‘ought not to be charged with a judgment of which he had no (actual) notice;” and in Harman vs. Harman, 3 Modern, 115, a concurrent opinion was expressed by the Court, although the point was not judicially decided.
Among other reasons, it was doubtless the hardship of so rigorous a rule as that announced in Littleton vs. Hibbins, and a desire to prevent oscillation and uncertainty respecting a matter so important, that induced the enactment of a statute of 4 and 5 W. & M. declaring, constructively at least, that undocketed judgments in the
First. We are far from being perfectly satisfied that the doctrine laid down in Littleton vs. Hibbins was ever the settled law of England. The cases adjudged upon this point prior to the enactment of the statute of W. & M. were conflicting and few, as already shown, and were nearly equipollent. It is true that the master of the rolls, in Herbert's case, 3 Pr. Wms. 115, said incidentally,
We must admit also, that, in the case of Mayo vs. Bently, Call's Rep. Judge Fleming recognized the same rule; and that, afterwards, himself and Judge Roane, Judge Tucker contra, reiterated it; [4 Hen. & Mun. 57,] and that Ch. Jus. Marshall seemed, at. least to some extent, to concur in the same view of the law, in the case of Hopkirk vs. Pendleton, decided in the Circuit Court of the United States at Richmond.
These, when associated with Toller, and Williams, and Fonblanque, constitute, we acknowledge, an imposing array.
But the authoritativeness of their opinions and dicta is, in no small degree, shaken by the fact that they all seem to have been governed by the solitary case of Littleton vs. Hibbins, and subsequent suggestions produced by it, without noticing the opposing dicta and decisions, and without considering the true object and effect of the statute of W. & M. which were, as, we think, not to establish the doctrine of Littleton vs. Hibbins in reference to judgments of inferior courts not required to be docketed, but only to mitigate it, so far as it might have been applied to judgments in the superior Courts of Westminster, by requiring them to be registered in a separate book or docket, before they should operate as constructive notice, and to, make such docketed judgments, and only such, so operate; and thus to settle, by legislative authority, that which was mooted as a controverted and unsettled point of law in the Courts of England. Why require the docketing of judgments in the superior courts of general jurisdiction throughout England — and in which most of the important cases of law are known to be decided, and in some one of which, if any where, an executor might reasonably expect to find a judgment against his testator — and nevertheless, still intend that
And why should a judgment against a testator, operate as constructive notice to his executor, when the lis pendens (which, for some purposes of justice, was, in one sense, made to operate as effectually as notice,) being terminated, the judgment itself is no notice to a stranger? There is no reason for such an anomalous doctrine. But in the- character and jurisdiction of the Courts of Westminster, we can perceive some motive for making such of their judgments as have been so docketed as to be conveniently accessible and certainly ascertainable without unreasonable diligence, operate as constructive notice to executors and administrators; because, as it is their duty to pay judgment debts before others of inferior dignity, they should not be excused for failing to do so on the plea of ignorance of their existence, if, by reasonable inquiry, they might obtain the requisite information.
But it would be unreasonable and impolitic to punish them for honestly applying the assets to the payment of inferior debts, when they not only did not, but could not
We have seen no authoritative adjudged case in which it was ever judicially decided in England, since the enactment of the statute of W. & M. that judgments of inferior courts, not required to be docketed, shall, as a matter of course, be deemed to be within the knowledge of executors or administrators, who had not been parties to them. Even the case of Littleton vs. Hibbins did not so decide; for though, in that case, it was said that an Executor was bound to take notice of a judgment in another county, that may have been, and from any thing reported, was, an obiter suggestion, except so far as it applied to a judgment in one of the superior courts of Westminster. As already suggested, Hickey vs. Hayter, supra, was the first case in which a judicial construction was given to thestatute of 4 and 5 W. & M. and that case, not only was decided a hundred years after the date of the statute, and long since the American Revolution, but clearly assumes, as we think, that judgments to which the statute did not apply were not constructive notice. And certainly subsequent dicta to the contrary, connot be deemed evidences here of the law in England prior to the fourth of July, 1776.
In Hopkirk vs. Pendleton, already referred to, Ch. Jus. Marshall only said, that the executor should be presumed to have had notice of a judgment against his testator in Henrico county, in which he resided.
We are strongly inclined to the opinion, therefore, that it is not, and never was, the law of England that an executor should, at his peril, take notice of all judgments against his testator, in all of the courts of the kingdom.
With some qualification, a judgment creditor should be required to give actual notice of his demand: in many cases it would be as reasonable that he should do so, as it can be that a bond creditor should do it.
Second. But if we are mistaken, and such a doctrine as that we have been combatting, is, or ever was, established in England, we should not feel bound to apply it to Kentucky: 1. because it is not a doctrine of the common law, but is a mere judicial interpolation; 2. because it was, as we think, virtually abjured by the policy and objects of the statute of W. & M. which, though never in force here, is sufficient to show that such a doctrine was not considered congenial to the jurisprudence of even England; and 3. because the political, social, physical, ánd juridical character and condition of this country are essentially different from those of England, and must be felt to be such as to forbid that an executor in one extreme of our state should be presumed to know of the existence of a judgment against his testator, in a Justice’s court at another and opposite extreme point.
In this view of the question we fully concur with Judge Tucker’s suggestions and conclusion, in the case of Nimmo’s Ex’r. vs. The Commonwealth, supra.
But though a judgment should not, in our opinion, be, per se, notice to an executor, under all circumstances, still, as personal representatives should be vigilant and faithful, it seems to us but reasonable and just, that they should be presumed to know what might, by reasonable inquiry, be ascertained. An executor or administrator might and should know of all judgments in the county in which he was appointed, and in which his testator or intestate was domiciled at his death, and in any county in which he had lived at any time within one year preceding it. We fix the period thus, because the presumption would be, that all jugdments rendered against the decedent more than a year prior to his death, had been discharged. And it is also our opinion, concurrently with that of Judge Tucker, that a judgment upon which no execution had been issued for a year and a day, should not be entitled to priority "over other debts, without actual notice to the personal representative,
With these reasonable exceptions, the question whether a personal representatives had notice of a judgment against his testator or intestate, should be determined as a matter of fact, and not of arbitrary and inflexible law.
The rule we have thus prescribed, seems to us to be dictated by the principles of the common law, and to be as near an approximation to the objects of the law as a general and practical rule can conveniently be.
As the judgment we are considering in this case, had been kept alive by execution, and was renderded in the county in which both the intestate and his administrator resided, the decision of the Circuit Judge respecting it, was, according to the foregoing conclusion, right and proper; for being presumed to have knowledge of it, he ought to have pleaded it in M’Chord’s suit against him, and having failed to do so, is as responsible as he would have been, had he voluntarily paid M’Chord without a suit. This is too well settled-to require the citation of authorities.
Wherefore, it is considered that, as the judgment in this case does not appear to be for a larger sum than the facts in the record authorize, it is affirmed.