Orcutt v. Orms, 3 Paige Ch. 459

Orcutt v. Orms

3 Paige Ch. 459 | New York Court of Chancery | 1831

The Chancellor.

I am not informed as to the reasons upon which the decision of the late chancellor, overruling the defendant’s plea, was founded. But as he gave the defendant permission to let it stand for an answer, as far as it went., he must have arrived at the conclusion that the facts therein stated might form a defence, or part of a defence to the suit. For if a plea contains nothing which can be a valid defence to any part of the matters which it professes to cover, it will not be allowed to stand for an answer, but should be absolutely overruled. When a plea is allowed to stand for an answer, it is determined that it contains matter which if put in the form of an answer, would have constituted a valid defence to .some material part of the matters to which it is pleaded as a bar, but that it is not a full defence to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered as a defence by way of plea, or that it is not properly supported by answer. (Mitford, 4th Lond. ed. 303. Lube’s Eq. Pl, 46.) If a simple plea to the whole bill. *462unaccompanied by an answer, is allowed to stand for an answer, without reserving to the complainant the right to except^ it is to be deemed a sufficien t answer, though not necessarily a full and perfect defence to the whole bill. (Sellon v. Lewen, 3 Peer Wms. Rep. 239.) But if the plea is ordered to stand for an answer, with liberty to except, or is accompanied by an answer, which will enable the complainant to except without such special leave, the master upon a reference of the exceptions must enquire and ascertain whether the bill is fully answered, taking the plea as a part of that answer; unless the court, in permitting the plea to stand for an answer, as in the case of Kirby v. Taylor, (6 John. Ch. Rep. 254,) declares as to what part of the bill it is to be considered a good defence. The court, however, sometimes prohibits the complainant from calling upon the defendant, by exceptions, to discover particular matters as to which he is not legally bound to answer. Thus in Brereton v. Gamul, (2 Atk. 240,) and in Bagley v. Adams, (6 Ves, jun. 586,) the pleas were ordered to stand for answers, with liberty to the complainants to except, save as to calling upon the defendants for accounts. In this case, by the decision of' the late chancellor, the defendant was compelled to give a full account of the assets of the intestate which had come to his hands as administrator, as well before as after the plea of plene administravit; which seems to have been unnecessary if the chancellor arrived at the conclusion that the proceedings in the former suit were a bar to the claim upon assets which had been received before that time. I presume, however, that the chancellor must have come to such conclusion although the defendant was compelled to put in a full answer, as I can discover no other ground upon which the plea could have been permitted to stand for an answer. And upon a careful examination of the question, I am satisfied that to this extent the facts stated in the plea protected the defendant from an account as to any assets received by him before the pleas of plene administravit, &c. in the supreme court. The complainant had a right to come into this court in the first place for a discovery and account of the estate of the intestate which had come to the hands of the administrator, and to have Ms debt satisfied out *463of the same; or he might elect to sue in a court of law, and to enquire as to the state of the assets upon an issue joined on the plea of plene administravit. Having elected to prosecute his suit at law, if he did not wish to be precluded by the pleas of the administrator, he should have joined issue thereon and have established their falsity; or he should have submitted to a non-suit by which the right to call for an account here would have been preserved. In cases where this court has concurrent jurisdiction with courts of law, a judgment at law ought to have the same effect in this court, upon the rights of the parties as to a re-examination of the same question, as it would have in a court of common law, if there has been no fraud and undue means used to obtain the legal bar. There is no evidence here that the complainant was induced to admit the truth of the defendant’s two last pleas in consequence of any fraud practised upon him by the administrator. The inventory of the estate, even if it were false and deceptive, could not have induced him to adopt that course ^ as it appears by the record that he confessed those pleas, arid prayed judgment of ■assets, quando, &,c. previous to the filing of that inventory. In the case of Tayler v. Holman, (Buller’s N. P. 169,) where the executor had pleaded plene administravit in the original action, and the plaintiff instead of contesting the truth of that plea took judgment of future assets quando acciderint, and afterwards brought a suit upon the judgment suggesting a devastavit, Lord Mansfield refused to allow the plaintiff to give any evidence of assets come to the defendant’s hands before the judgment. Similar decisions at nisi prius have also been made by Lord Chief Justice Eyre, and by Chief Baron Parker. And in Mara v. Quin, (6 Burn, East’s Rep. 1,) upon a scire facias on such a judgment, the court of king’s bench decided that the plaintiff must aver that assets had come to the ■defendant’s hands since "the judgment, and that the plaintiff must pray execution against those goods only. Lord Kenyon, Ch. J. in that case says, “in point of convenience, it is right that such should bethe rule of law ; for if it were permitted to a creditor to litigate for a second time that which had once been ■settled between the parties either by a verdict or by admission, the executor would be harrassed and involved in infinite *464expense and litigation.” In that case, however, the court permitted an amendment of the original judgment, so as to cover the assets which had come to the defendant’s hands after plea pleaded but before the judgment was entered thereon. In the case now under consideration the form of the judgment was such as to cover any assets then in the defendant’s hands to be administered. But as the complainant admitted upon the record that the second and third pleas were true, he is estopped from alleging that the defendant had any assets at the time those pleas were put in, at the January term, in 1816. The plea which was originally filed in this suit was defective as a defence to the whole bill, because the complainant was entitled to a discovery as to any assets which might have come to the defendant’s hands after that time. Although the plea contained an averment that no goods had come to his hands after the rendition of the judgment, that did not cover the intermediate time between the judgment and the plea. And if any thing had been received during that time the complainant had a right to the same ; provided such assets were more than sufficient to satisfy the prior judgments mentioned in the third plea to the original suit. The plea should also have been supported by an answer; as the complainant had a right to call for an account of the assets, if any, which had come to the defendant’s hands after January term, 1816. But the plea was good in substance, and was a sufficient answer and a valid defence to so much of this bill as seeks a satisfaction of the complainant’s demand out of any thing for which the defendant might have made himself liable as administrator previous to that time. The defendant was technically liable for the loss on the sale of the leasehold property, arising from the insolvency of Branch. There was no fraud, however, in that transaction, but only a mistake of the defendant as to his right to sell the property on a credit. And he is perfectly excusable for interposing a technical estoppel as a defence against such a claim. That property was assets in his hands at the time of the sale, and the loss arose from his selling the property on a credit and without proper security. It is therefore not material to en-quire whether Branch became insolvent before or after the *465putting in of the plea of plene administravit. It appears, however, that the note had become due previous to that time.

The complainant has proved that Martin had some property in this state, at the time of his death, which is not mentioned in the inventory and which actually came to the possession of the defendant. This is satisfactorily explained in the answer so as to rebut all presumption of fraud in relation to that inventory, whatever may have been the legal liability of the defendant under the letters of administration granted in this state. It appears he was also the administrator of Martin in the state of Vermont under a previous appointment. As the intestate resided there at the time of his death, and from the nature of his business the property was constantly changing from one state to tire other, it was perfectly natural that the property which was found at Poultney at the time administration was granted in that state should be inventoried and accounted for there, whichever side of the line it might have chanced to be at the moment of Martin’s death. It appears from the testimony that one stage and four horses could not have been many rods from the state line when Martin died; the same having left the stage house in Poultney, five and a half miles distant from that place, only one hour before. And I presume, from the manner in which the stages usually run, that this stage and team must have returned to Poultney again the same evening. Under such circumstances, if administration had been granted to different individuals in the two states, I think the property must have been considered as belonging to that administrator who first reduced it to possession within the limits of his own state. But in this case as both administrations were granted to the same person, if an account of his administration was now to be taken here, it might be necessary to enquire whether he had inventoried and accounted for this property as a part of the estate which actually came to his possession as administrator in the state of Vermont.

As the seven dollars and fifty cents collected of Hawley was due from a debtor of the intestate residing in this .state it probably must be considered assets to that amount under the administration here, although the debt was actually in*466ventoried in the other jurisdiction. (Godolph. Orph. Leg. 70. Thompson v. Wilson, 2 New-Hamp. Rep. 291.. Stearns v. Burnham, 5 Greenl. Rep. 261.) But as there is no evidence from which it can fairly be presumed that any other effects have come to the hands of the defendant since the January term, 1816, and as this sum is wholly insufficient to satisfy the previous judgments which are entitled to a preference in payment, it would be a useless expense to the complainant to direct a reference. The bill must therefore be dismissed, with costs.