18 Ala. 458 | Ala. | 1850
The bill was dismissed for the want of equity. In determining whether or not the decree is erroneous, we are confined to the bill itself. The chancellor went upon two grounds, the first of which was, that he had no jurisdiction of the case, as the complainant had not exhausted her remedy at law. It was held in this court that chancery will not entertain a bill, filed by a creditor, alleging a waste of the personal estate of a testator, by the exeeutor, and seeking to subject the lands of the testator, in the possession of heirs and devisees, to the payment of his debt, except it be avered and proved, that the executor and his sureties are insolvent, and all remedy at law has been exhausted against them. — Darrington et al. v. Borland, 3 Port. 9. And in another case, it was held that chancery will not lend its aid to enforce the payment of debts due from an estate, out of such portion thereof as has regularly passed into the hands of heirs and distributees, when the representative has committed a devastavit, until the ordinary legal remedies have been employed unsuccessfully, against the representative and his sureties. — Pyke v. Searcy et al., 4 Port. 52. But those cases were very different from the present. The bill in this ease states, that Edmund Foreman, the complainant’s former guardian, was cited by the judge of the Orphans’ Court to make settlement, at her instance, and that she recovered a decree against him for three thousand two hundred and twenty-eight dollars and four cents, which decree was rendered on the third day of June 1844. And it is further stated in the bill that execution was issued from the decree, by means of which several sums were levied, amounting in the aggregate to three hundred and eighty-two dollars and ninety-two cents, and that the execution was returned no property found as to the residue. It is obvious that the complainant has proceeded at law against Edmund Foreman as far as is necessary.
2. The bill does not state that the bond of Foreman as guardian, or the complainant’s demand in any form, was presented to the administrators of Mr. Pace, and for this the counsel of the defendants contends that the bill is wanting in equity. But the statute of non-claim does not extend to persons under age; they are expressly excepted by the proviso, and consequently, the. complainant is not affected by that statute. The counsel contended that as the complainant had a guardian to attend to her affairs, she is not within the proviso, but we cannot agree with the counsel as to that; if such were to be the construction, very few orphans, perhaps, would be within the saving of the proviso.
3. It is contended that as Mr. Pace died shortly after the bond was executed and before any liability accrued thereon, he was discharged from the time of his death, as surety. The bond was the evidence of an executory contract, that the guardian-should perform the duties required of him by law. It embraced the whole term of his guardianship. It is settled that when the condition of a bond is possible at the time it is made, and before the same can be performed, the condition becomes impossible by the act of God, or of the law, or of the obligee, then the obligation is saved. — Co. Lit. 206, a; Badlam v. Tucker, 1 Pickering R. 284. When the bond in this case was executed, the condition was possible, which was simply that the guardian should perform his duties, and it continued possible for him to do this so long as he continued to be the guardian, notwithstanding the death of one of bis sureties. We cannot distinguish this case from any other executory contract, in which one has given bond and sureties for his performance, so far as the sureties are concerned. If the guardian himself had died, then
The counsel contends that the bond is bad, but we think this objection was not appropriately made on a motion to dismiss the bill for the want of equity. We do not wish, however, to be understood as conceding that it is bad.
We decide nothing as to the necessity of other parties.
The decree is reversed and the cause remanded.