Inge v. Boardman

2 Ala. 331 | Ala. | 1841

GOLDTHWAITE, J.

— The case of Wilkins v. Wilkins, 4 Porter, 245, has been cited as a decision of this Court, of the necessity that the personal representative of a deceased mortgagor, should be a party defendant to the bill for foreclosure. It is true, that the opinion admits that such is the law ; but the case.did not turn on this question, as the personal representative was in fact a party, though not regularly subpcened. The question presented in this case, was neither examined or decided, in that which has been cited. We therefore consider it as an open question.

In the present case it is not pretended, that the personal representative of the deceased mortgagor, as such, is before the Court; and therefore we are called on to determine, whether the case could properly proceed without him.

This is certainly a question of much difficulty on authority, for it is the general rule whenever a bill is filed for the purpose of enforcing a debt against the real estate, which debt is properly chargeable, in the first instance on the personal assets, to make the personal representatives of the deceased parties defendants, as well as the heirs or devisees. As in the cases where the real as well as the personal estate is charged with the payment of debts. [Harris v. Ingledew, 3 P. Wms. 92 ; Berry v. Arkam, 2 Vern. 26.] So likewise when a suit in equity is brought against the heir, for the performance of a covenant by his ancestor. [Knight v. Knight, 3 P. Wms, 333.]

The reason of the rule, as stated in the case just cited, is, that a court of equity delights to do complete justice, and not by halves: as first, to decree the heir to perform the covenant, and then to put him upon another bill, against the executor, to reimburse himself out of the personal assets, which, for aught appearing to the contrary, may be more than sufficient; and, where the executor and heir are both before the Court, complete justice may be done, by decreeing the executor to perform the covenant, so far as the personal assets will extend; the rest to be made good by the heir, out of the real assets. This reasoning certainly applies equally to the case of a creditor, who has taken a mortgage, as a security for a debt, and was so decided, in Christopher v. Spark, 2 Jacob & Walker, 229.

On the other hand, it is said, by Mr. Cox, in his note on the case of Knight v. Knight, 3 P. Wms. 333, to have been held, in the case of Dunscombe v. Hansley, that there is no necessity for making the executor of a mortgagor a party; because the bill being only to foreclose an equity, the plaintiff need only make him who has the equity, a party. Neither is the mortgagee any way bound to intermeddle with the personal estate, or run into the account of it; and, if the heir would have the benefit of any payment made by the mortgagor, or his ‘executor, he must prove it.

It is difficult, perhaps impossible, to reconcile these decisions; and the facts of the present case, as exhibited at the hearing, are very conclusive to shew, that the true rule is stated by Mr. Cox, in his note.

What is the necessity of always making the executor a party, if there are some cases, in which the debt may remain* and yet the executor may not be bound, or even authorized to pay it out of the personal assets ? The case of a debt, barred by the statute of limitations, would prevent the former; and that of a debt, barred by non-claim, may possibly prevent the latter.

It is evident, that the executor of Inge could not be decreed to pay this debt from the personal assets, because he had already been discharged by the judgment, in the suit at law, in consequence of the non-claim. To first dismiss the bill, as bad on demurrer, because the personal representative was omitted as a party ; and afterwards, when the same bill is amended by inserting his name, to permit him to shew that he has nothing to do with the suit, by shewing that he is not liable, or not authorized, to pay the debt out of the personal assets, to' say the least of it, would be a most singular conclusion.

. We come then, to the conclusion that, as there are cases in ■which no decree can be had against the personal representative of the mortgagor, it is unnecessary in this.

2. .The other main position, assumed by the plaintiff’s counsel is, that, as the remedy against the executor was barred by ■the statute of non-claim, the debt was extinguished, and the -mortgage became extinct with it.

This question was very fully considered, in the case of Duval’s heirs v. McLoskey, and a majority of the Court then held, that, although the remedy as against the executor, might be barred, that on the mortgage remained in full force. I was incompetent to preside in the decision of that case; but I take this occasion to say, that it has my concurrence on this point.

We do not conceive that it makes any difference in the law, whether the mortgagee is, or is not, in possession of the mortgaged premises, when his remedy becomes barred, as against .the personal representative.

3. The notes, and the copy of the mortgage, are stated as a part of the evidence in the cause. They were papers appertaining to the suit, and might have been proved viva voce, at the hearing. (Levert v. Redwood, 9 Porter, 79.) No exception seems to have been taken at the hearing, and it is now too late to insist, that the writings were not sufficiently proved.

4. The exception that dower is not allowed by the decree to Mrs. Inge, may be answered by observing, that she is not entitled to it. Whatever may have been the reasons which induced her acceptance of the provisions of the will in lieu of dower, she has no equitable claim against the mortgagor.

We cannot arrive at the conclusion, that there is error in any of the matters to which our attention is called, by the assignment of errors, and the decree is affirmed.