Martin v. Tally, 72 Ala. 23

72 Ala. 23 | Ala. | 1882

STONE, J.

In August, 1861, Winfield ,S. Mason died intestate, a resident of Jackson county, Alabama. In March, 1862, Frances S. Mason and James M. Buchanan were appointed administrators of his estate, and gave bond, with Wm. B. Iveeble and Johnson F. Martin as their sureties. Mrs. Frances .13. Mason died in 1863, and no settlement of her administration was ever bad. It is not shown she had any separate administration account. Buchanan continued in the administration. In March, 1863, after the death of Mrs. Mason, the judge of probate, of his own motion, required Buchanan, the administrator, to give an additional bond; and he gave such bond, with W. R. Larkin, John Compton, and Geo. R. Larkin, as his ■sureties. James E. Mason and Frances W. Mason, infants of tender years, were the heirs-at-law and distributees, alike of "Winfield S. Mason and Frances S. Mason. One Hopkins became administrator of Frances S. Mason, she having died' intestate.

In April, 1868, James M. Buchanan made a final settlement -of his administration of Winfield S. Mason’s estate, in the Probate Court of Jackson county, — said James E. and Frances W. being still minors. His accounts were audited and stated, and ■a balance of some thirty-one hundred dollars was found in his hands for distribution. This sum was divided into three parts, •and decrees were then rendered against said Buchanan, for the several thirds; one in favor of Hopkins, as the administrator of Frances S. Mason, the widow; one in favor of B. W. Mason, •as the guardian of James E. Mason, minor, for the use of said James E. Mason ; and one in favor of B. W. Mason, guardian of Frances W. Mason, minor, and for her use. The decree last mentioned — that in favor of B. W. Mason for the use of Frances W. Mason — is the subject of the present controversy. No ■execution was issued on that decree, until after the” revivor hereinafter stated.

Said Frances W. Mason having died a minor, John B. Tally was appointed her administrator; and in March, 1878, pursuant to a motion and notice therefor, said decree, so rendered in 1868, in favor of B. W. Mason, guardian of Frances W. Mason, and for her use, was revived in favor of said Tally, as her administrator. An appeal had been taken to this court, pending the proceedings, and questions of law were settled, which entered into the question of revivor.—Mason v. Buchanan, 62 Ala. 110. An execution against Buchanan was issued on said revived judgment, in July, 1878, which was returned in November following, “No property found.” This was the first execution issued against Buchanan on said deeree, either before or after the said decree of revivor. In January, 1882, an execution was issued on said revived decree, and on tlie ■return ‘No property’ made on said first execution, against said Buchanan, and against his sureties on both said bonds. Thereupon, said sureties obtained a supersedeas of said execution, as .against them, and, among other defenses, pleaded the statute of limitations of six years, as a bar to the proceeding against them. This defense was disallowed by the Probate Court.

It is shown in the record, that when the decree was rendered, B. ~W. Mason, the alleged guardian, was a resident of the State of Tennessee. It is not shown when or where he was appointed, nor is it shown he ever had been apjDointed such guardian, further than the recital in the decree that he was such guardian of said Frances W. Mason. There is nothing in the objection based on these facts. The recital in the-decree, affirming that he was guardian, proves the fact, in a collateral presentation, such as this.—Florentine v. Barton, 2 Wall. 210. Judgments and decrees of courts, pronouncing the existence of collateral facts material ■ to their regularity, are presumed to be correct. Nor can we presume said B. W. Mason was a non-resident of Alabama, at the time he was appointed guardian. There is nothing in the record to raise such presumption; and, if necessary, we would presume he was a resident when appointed, and changed his residence afterwards. "We may go further: If lie was non-resident when appointed, the appointment was not vo;d. It was, at most, irregular, and would stand, until revoked.—Buchanan v. Tally, at the last term; Broughton v. Bradley, 34 Ala. 694; Brock v. Frank, 51 Ala. 85.

There is another view, which is a full answer to any argument that may be based on the non-residence of the guardian, in whose name the original decree was pronounced. That original decree is the foundation, on which the decree of reviv- or stands. If it was void, it could not be vitalized by an order of revivor. Bevivors restore life to judgments and decrees that have become dormant. They restore that which has been lost by neglect. If there was no previous living existence, there can be no restoration. The revivor and execution, in this case, estop the appellee from gainsaying the validity of the decree, on which the whole proceeding rests.—Buchanan v. Tally, supra.

It is contended for appellee, that the petitioners, sureties on the bonds, should have had themselves made parties with Buchanan in the probate proceedings instituted to revive the decree, and should then and there have interposed the defense of the statute of limitations. Failing to do so, the argument is, that they, together with Buchanan, are concluded by the decree. There can be n'o question that the decree, both original and revived, rendered against Buchanan, is equally binding on his sureties, as to all matters that are not personal defenses. This ■ grows out of our statutes, which make it the duty of the administrator, imposed by liis bond, to make settlement of his. administration. Hence, the state of the accounts, ascertained and decreed against the personal representative himself, is alike conclusive on him and his sureties, in the absence of fraud and collusion. Not so, however, as to thefactumi of the bond, and the surety’s liability upon it. These are questions which can not arise on a mere proceeding to bring the administration to a settlement, to which the sureties are not parties.—Grimmet v. Henderson, 66 Ala. 521; Larkins v. Mason, 71 Ala. 227. The proceeding in this case was against Buchanan alone, and its purpose was to revive the decree previously rendered against him. To such proceeding the limitation is twenty years. The sureties had neither power- nor right to appear or defend against this proceeding. The fact and extent of their principal’s liability had been fixed by the decree of 1868, and that decree equally fixed their liability at that time, with the exception of personal defenses. In the state of the record, any defense they could have made could not have availed Buchanan, their principal.—See Garrett v. Garrett, 69 Ala. 429; Code of 1876, § 3224, subd. 2; 1 Brick. Dig. 925, §§ 153-5.

Section 3226 of the Code of 1876, subd. 7, declares a limitation of six years to “actions against the sureties of executors, administrators or guardians, for any misfeasance or malfeasance whatever of their principal; the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety.”

Payment of the decree rendered in this cause by the Probate Court, was the act omitted to be done. Our uniform rulings are, that the rendition of a decree for money, on final settlement of an executor, administrator or guardian, fixes the liability of the surety.—Fretwell v. McLemore, 52 Ala. 124-36; Wright v. Lang, 66 Ala. 389. As soon as the decree was rendered, it became the duty of the administrator to pay it; and failing to do so, an action lay at once against his sureties. The breach, in such case, is the non-payment by their principal, of the amount of the decree.—1 Brick. Dig. 925, §§ 147, 152. The right of action accrues then, because it is the duty of the principal to pay; and the sureties may then pay, and charge their principal for the breach in not paying. Such payment by the sureties could not be classed as voluntary.

It is contended for the appellee that, inasmuch as the statute employs the word actions, in prescribing the limitation we are considering, it can not be applied to this case, because the present statutory proceeding is in no sense an action; that the issue of an execution, which is final process, cannot be the commencement of an action, whose initiatory step is an original process. In Steele v. Graves, 68 Ala. 17, following former rulings, we said: “ The right to have execution against the sureties, is statutory. It is a substitute for a suit on the bond for non-payment by the administrator of the decree against him.”—See Elliott v. Mayfield, 4 Ala. 417, 424. Now, it could not be controverted, that if suit had been brought against the sureties, alleging non-payment of the decree as the breach of the bond, the six years statute of limitations would have been a good plea in bar. Cases frequently arise, in which the statutory remedy can not be resorted to. If the administrator dies before settlement, and the settlement is consequently made by his personal representative, the statutory remedy by execution can not be invoked. To any proceeding in such case, the statute might be pleaded by the sureties. Would it not be strange that, in two cases, in all other respects parallel, the accidental death of one principal would release one set of sureties, and leave the others liable? We think the construction claimed is too literal and narrow. Statutes of limitation are enacted in the interest of repose. Their remedial provisions are never construed narrowly. They rest on the. presumption that meritorious claims will not be allowed to slumber, until human testimony is lost, or human memory fails.

Our interpretation of the statute is, that the word actions can not be construed in any technical sense, but that it embraces all civil proceedings instituted or set on foot, to enforce the liability. Mr. Bouvier says: “In a quite common sense, action includes all the formal proceedings in a court of justice, attendant upon the demand of a right made by one person or party of another in such court, including an adjudication upon the right, and its enforcement or denial by the court.” This, whatever its form, if not asserted against the surety until more than six years after the liability of the principal is fixed by decree, may be successfully defended by interposing the plea of the statute.

All the facts in this case are before us, and there is no necessity for remanding the cause.

The decree of Probate Court is reversed, and a decree is here rendered, superseding and quashing the execution, so far as the sureties on the two bonds are concerned; and no other execution will issue against them on said decree.