Manly v. Kidd, 33 Miss. 141

Manly v. Kidd

33 Miss. 141 | Miss. | 1857

Handy, J.,

delivered the opinion of the court.

The substance of the bill in this case is, that Robert Willis died intestate in this State in the year 1827, and that in April, 1855, letters of administration upon his estate were granted to Kidd, the complainant. That he owned, at the time of his death, certain slaves, sought to be recovered, and left certain named persons his distributees; that in the year 1835, the slaves came to the possession of two of the distributees, one of whom was David Willis, as the undivided property of the estate, and that during that time, David Willis executed a mortgage of the slaves to one Barnard, to secure a debt due him, but without change of possession, and died in this State, in the year 1844; and the defendants, Manly and Dodd, were appointed his administrators, and took possession of the slaves as his property, and claimed them as such. That shortly after this, the distributees of the estate filed a bill in chancery against the administrators of David Willis, to recover the slaves, claiming them under a deed of gift executed in North Carolina to *147Robert Willis, contending that a life estate only, was vested in Robert Willis by the deed, with remainder to his children, the complainants in that bill; and that it was finally decided by this court in that suit, that the deed under which they claimed was not legally proved to have been executed. The bill thus alleges, that by the law of North Carolina, this deed vested the absolute title to the slaves in Robert Willis, and that the complainant, as his administrator, is entitled to them, and that the party holding the mortgage claims the right to subject them thereto.

The defendants demurred to the bill, on the grounds, 1st, that it was barred by the Statute of Limitations and lapse of time; 2d, that it is barred by the former decree ; 3d, that no debts are shown against the estate, or necessity for the action of an administrator. This demurrer was overruled, and thereupon this appeal was taken.

We will consider first the defence of the former decree, and in connection with it, the last ground of demurrer.

It is insisted that this defence is insufficient, because this suit is not between the same parties, and upon the same subject-matter, and in the same right, as the former decree.

As to the identity of the parties, it is sufficient if they are substantially the same, and it is not necessary that the suits should be between precisely the same parties. Story’s Eq. PL § 791; Mitf. Pl. 248. Are not the parties then, beneficially interested in both the suits virtually the same, according to the allegations of the bill and the just legal inferences which must be drawn from the facts as stated ? We think that they are.

It appears by the bill that the complainant’s intestate died in the year 1827 ; and consequently, there was a lapse of about twenty-eight years before the grant of letters of administration, which did not take place until the decision of the former suit. It is not alleged that there are any debts unpaid, and if there were, they would be barred by lapse of time. The property appears to have been in the hands of the distributees, and if there had been outstanding debts, it is not to be supposed but that administration would have been taken of the estate at an earlier period. Under these circumstances, the presumption that there are debts, would be most unreasonable, and is not to be entertained; and, therefore, there could have been no necessity for taking out letters of admin*148istration for the purpose of paying the debts of the-intestate. And the conclusion is not to be avoided, that the letters were obtained, and this suit instituted, exclusively for the benefit of the distributees. If a recovery should be had, the administrator, from the showing of the bill and from every probability arising from the circumstances, would have nothing to do but to hand over the slaves to the distributees, the same parties who instituted the former suit. He is a direct trustee for them, and they would be the beneficiaries of the decree, as substantially as if they were formal parties to it.

With respect to the identity of the subject-matter, it is plain that it is the same in both suits, to wit, the recovery of the slaves for the benefit of the parties entitled to them, who were the children of the intestate.

It is also evident that there is no substantial difference as to the right in which the children of the intestate claimed the slaves, or will be entitled to them, in the two suits. Both claims are in their own right, and in virtue of the deed to Robert Willis the intestate, the former claim being as remaindermen under the limitations of the deed, and the present, as distributees of Robert Willis, who is n'ow conceded to have had the absolute title. It was entirely competent for them in the former suit to have set up their claim, as distributees of their father, in the alternative that they were not held to be entitled as remaindermen under the deed; and the decree in either alternative would have been the same, — that they recover in their own right. And it is against the policy of the law and not to be tolerated, that parties should first make an experiment in litigation to assert their rights upon one ground, and failing in that, resort to another form and upon another ground, to assert the same right, and accomplish the same substantial end.

Secondly. Considering the distributees as the persons beneficially interested in this suit, and that the administrator is a mere naked trustee for their benefit, the Statute of Limitations is a valid defence to it. It will not do to say, under the circumstances appearing by the bill, that the statute did not commence running until the administrator was appointed. For it is well settled by this court, that the distributees had the right to sue and recover the property, when there was no administration and no debts shown. Wood v. Ford, *14929 Miss. 65. For aught that appears by the bill, the right of action accrued to the distributees in the year 1835, and it distinctly appears that there has been an adverse possession in the administrators of David Willis, since 1844, a period of eleven years before the filing of this bill; and even before that time, that David Willis claimed title adversely, by executing the mortgage upon the slaves. During all this time, there was no impediment to the institution of a suit, by the distributees, for the recovery of the slaves. Under such circumstances, to entertain a suit brought at this remote day, for their use and benefit, would be to disregard the settled rules of courts of equity, in discountenancing stale demands, and to mate substantial principles yield to mere forms.

It follows from these views, that the demurrer should have been sustained; and the decree is, therefore, reversed, the demurrer sustained, and the bill dismissed.