Presley v. Weakley

135 Ala. 517 | Ala. | 1902

SHABPE, J.

By section 279 of the Code six years is made a bar 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.” This provision first became the law by adoption of the Code of 1852, prior to which there was no statutory bar- to actions of the kind mentioned. A settled principle prevailing before as well as since that enactment is that an action at law cannot be maintained against the surety on the bond of an executor, administrator or guardian nntil there has been in a separate proceeding a judicial ascertainment of the fact and extent of the principal’s liability; but such an ascertainment when had, is, in the absence of any defense personal to the surety, such as fraud, non cut factum or perhaps some others, binding upon the surety, notwithstanding his absence as a party to that proceeding. Hence it is considered that the act which fixes the liability of the surety within the meaning of the statute is, not the act of misfeasance or malfeasance of the principal, but the rendition of a judgment or decree against the principal.—Fretwell v. McLemore, 52 Ala. 124; Rives v. Flinn, 47 Ala. 471; Wright v. Lang, 66 Ala. 389; McDowell v. Jones, 58 Ala. 25; Adams v. Jones, 68 Ala. 117; Martin v. Tally, 72 Ala. 23; Street v. Henry, 124 Ala. 153. “This rule,” this court declared in Adams v. Jones, supra, with reference to a guardian’s bond, “is plain and simple and is too well established both by authority and in sound reason to be now abandoned.” The death of the principal cannot except a case from the rule, for such an event cannot so fix the surety’s liability as to subject him to an action at laws. For tins assumed reason and the further expressed reason, that the surety is not bound by any judgment or decree against the personal representative of his principal, it was said in Martin v. Ellery’s Administrator, 70 Ala. 326, “there is no remedy which can be pursued against the surety of an executor or administrator, after the death of the principal, other than by bill in equity. There can be, after the death of the principal, no judicial as-certaiment of his liability which would be evidence against the surety; and without it no action at law on the bond could be maintained.” It results from the construction the statute has received that where, as in the present case, the principal has died before the rendition of a judgment or decree against him, no case can arise either at law or in equity whicli will fall within the terms of the statute. But. the question remains whether complainant’s equitable remedy as against the. sureties on her guardian’s bond has been extinguished by force of the maxim vigil ant ibas non dormicntibns ae,quitas subvcnit. In the application of this maxim, “courts of equity often l'efuse to grant relief in (‘.ases to which the statute of limitations docs not strictly -apply, and adopt a period, in which their aid may be sought similar to that prescribed in analogous suits at law.”—Askew v. Hooper, 28 Ala. 634; Montgomery Light & Power Co. v. Lahey, 121 Ala. 131. Where, as here, the case is of exclusively equitable jurisdiction the equity court is not bound to the analogies furnished by the statute of limitations, but in the absence of special circumstances to induce an enlargement or restriction of time for suit, that, limitation is ordinarily adopted in determining what, time should be allowed for that purpose.—19 Am. & Eng. Ency. Law, 154. In Harrison v. Heflin, 54 Ala. 552, the bill was filed more than twenty years after the death of an administrator and sought to enforce the obligation of his bond against the (‘state of a deceased surety. The court, while bolding the remedy barred by lapse of time, declined to adopt the period prescribed by the statute we are considering as affecting the bar, but a reason expressed in the opinion for so declining was that the statute was passed after the cause of suit bed ripened and applied only to causes of action accruing after it became operative. From this it is inferable that had the statute preceded the cause of suit, it would have been influential in fixing the. bar. The statute is an expression of public policy, and as such is proper to be looked to by courts of equity in determining the proper limit of time to be ordinarily alhnved for holding sureties. in silent jeopardy of their bonds.

The death of complainant’s guardian terminated his trust and fixed the period from which the time for suing the sureties must be computed.—Harrison v. Heflin, supra. Thereafter about eight years passed before the bill was filed and so far as it discloses without anything to excuse the delay. Tn conformance with the spirit and policy of the statute of limitations, it must be held that such unexcused delay is in itself sufficient to preclude complainant from obtaining the' relief now sought against the sureties and justifies the dismissal of the hill as to them.

Affirmed.