41 W. Va. 568 | W. Va. | 1895
Baehel R. Hamilton, of Ohio, by her will directed its executor to purchase and furnish a home for Elizabeth J. Ferguson during her life, and also directed said executor to invest five thousand dollars, to be held in trust for
Trustees of the bank, Oney and Enslow, filed their bill in the Circuit Court of Cabell county against Mrs. Ferguson and Peebles, as executor of said will, and as trustee for Mrs. Ferguson, seeking to compel Peebles, as executor, to pay the sum assigned the bank by Mrs. Ferguson out of her interest in the estate of Mrs Hamilton, and seeking to sell or rent said house and lot for said debt. Mrs. Ferguson demurred to the bill, and it was dismissed, and the plaintiffs appeal.
One ground of demurrer is that the bill is multifarious as presenting two distinct causes of suit against two distinct sets of defendants in one suit—the demand against Mrs. Ferguson on her note to subject the house and lot, and the demand against Peebles, as executor, to subject assets in his hands to answer the assignment. These are distinct matters, it is said. Recovery on either will satisfy the debt. It is difficult to apply the rule against multifariousness in practice. The instances are numerous and-inharmonious. A suit is not thrown out of court for this fault, except in a plain case. Now, this bill seeks one debt. The note represents it, and binds both the house and the assets in the executor’s hands as a note only, as the bill claims, while the assignment affects the assets in Peebles’
Another point under the demurrer—want of jurisdiction as to Peebles, he being a non-resident and a foreign executor, and proceeded against by order of publication. A grant of administration abroad has no force extra territorium, and the executor or administrator can not, as a rule, sue or be sued outside the state conferring his authority. Crumlish v. Railroad Co., 40 W. Va. 627 (22 S. E. 90); 1 Lomax, Ex’rs, 555 (341); Andrews v. Avory, 14 Gratt. 239; 1 Rob. Prac. 191; Vaughan v. Northup, 15 Pet. 5. But where the executor comes and resides in this state with assets, he may be sued here, and compelled to account here. Powell v. Stratton, 11 Gratt. 792; Tunstall v. Pollard, 11 Leigh, 1. But this executor brought no assets here, save what he invested in the house, and they were no longer assets to be administered, as they had been administered and became property of Mrs. Ferguson. And surely a court of this state could not compel him to render an account here. You could take no personal decree to account or otherwise. So, as to that matter, there was no jurisdiction as to Peebles. But then, the deed to the house was in his name as executor, and therefore trustee, and he was a necessary party, and order of publication brought him before the court.
Another point under the demurrer—that tenants occupying part of the house are not parties. There is no need of making monthly tenants parties.
The next point made to sustain the demurrer is that there was no power in Mrs. Ferguson to make the assignment. This assignment was made while the act of 1891,
The last ground of demurrer is that plaintiffs have adequate remedy at law. We discard here the assignment as giving action. Then take the note made 22d December, 1893. On that note she could be sued at law, and the judgment would be a lien on the corpus of her real estate, her life estate in the lot, under section 15, chapter 3, Acts 1893, and execution could issue on it. Williamson v. Cline, 40 W Va. 194 (20 S. E. 917). Does that oust the jurisdiction of equity 1 I think so. The act makes the corpus of her realty liable as if she were sole; not merely rents and profits. Equity could only take rents and profits before the act, and that only during coverture; but a judgment takes her entire estate. She is put on the footing of z feme sole. Where are the reasons for longer retaining equity jurisdiction? Against others there must be judgment as a condition precedent to a lien on the realty; either its. rents or the body of the estate. Will you allow a creditor at once to proceed against a married woman and rent her
It seems that our statute came from the New York act, and in adopting it we adopt also its construction before the date of the act here. If the demand be of legal nature, she is suable at law, as would be a feme sole or man; if of equitable nature, equity has jurisdiction, as in case of a feme sole or a mau. Could we say, from the record—what is suggested in a brief—that the indebtedness for which the note was given existed prior to the disabling act of 1891, it would raise the question whether, asa promissory note is not -prima facie payment of antecedent indebtedness, a suit in equity could be maintained for the antecedent indebtedness, or would be limited to an action on the new note; but we can not see that it existed before January 21, 1892, or how long before. If made under act of 1891, a mere note for a debt incurred in separate business would not bind other estate than that engaged in the business. Of course, the assignment was not intended to pass any interest in the house, and could not, under the law when it was made, as shown above. So equity jurisdiction on its strength can not be sustained, either against the real estate or personal assets; nor can it be on the note.
Therefore, we must affirm the decree, without prejudice to proceedings at law to obtain judgment and enforce it against any estate it may bind.