30 Vt. 213 | Vt. | 1858
The opinion of the court was delivered by
The plaintiff presented his claim on book account before the commissioners on the estate of Sarah Stearns. The defendant, administrator of Sarah Stearns, in compliance with the 10th section of chapter 52 of the Compiled Statutes, also exhibited the claims of the deceased in offset to the claims of the plaintiff.
The notes in question were executed and made payable to the wife while her husband was living, and are expressed to be for value received. Nothing further appears in the case to show whether they were or were not given for her separate property, or whether the meritorious consideration of them proceeded from her. If the consideration of the notes was her real or personal property, or proceeded from her as the meritorious cause, they became her dioses in action, though executed to her during coverture, and upon her death pass to her administrator. They always remain her property until reduced to actual possession by the husband. The cases of Driggs, administrator, v. Abbott, 27 Vt. 580, and of Holmes v. Holmes, 28 Vt. 765, are directly to this point.
’I he precise question in this case is, what is the presumption of the law as to the consideration which arises on the face of the notes in the absence of all other proof.
IV e think the fact that they were made payable to her and are for value received, imports, prima facie, that the consideration
The averment in the plea that the notes “ became and were the sole property” of the husband, is not a sufficient averment that the husband reduced them to his actual possession, but is rather the legal conclusion which the pleader draws from the previous facts stated in the plea.
After the plea was adjudged insufficient and the defendant became entitled, by his proof and the finding of the court, to a judgment upon his declaration in offset for the amount due on the two notes, the plaintiff renewed his objection that, as his claim was disallowed by the auditor and the county court, the administrator was not entitled to a judgment on the notes — that the offset must fall with the claim to which it was pleaded in offset. On this ground the county court disallowed the offset.
There is no doubt that at common law the claim in offset could not have been made the basis of a separate judgment, as an offset was strictly held to be in the nature of a defense to the original suit, and no judgment could be rendered for a balance due a defendant. But the statutes of this state regulating offsets have materially changed the rules of the common law. By our statute not only may the defendant plead in offset, but the plaintiff may reply and plead an offset to the defendant’s offset, and the jury are “to find such sum as shall be in arrear from either party.”
The mode of proceeding when a declaration on book is filed in offset, or when an offset is pleaded to such a declaration, is regulated by specific enactments which seem based upon the same principle that there shall be judgment for the balance due, but are modified to adapt it to that form of action. If the plaintiff had filed a declaration of assumpsit instead of book account in the county court, and a plea in offset like this had been filed, it would have been for the jury to have found the sum in arrear to either party. If he had brought assumpsit and the defendant had pleaded a delaration on book in offset, the trial in the action on book must
But in this case, as a declaration on book was filed in the county court and the statute requires that the plea in offset shall not be tried till the sum on account has first been ascertained, and as nothing is found due on book, the plaintiff claims that the plea in offset shall not be tried at all, and that the ordinary rule of ascertaining and rendering judgment for the sum in arrear does not apply. The establishment of such an exceptional case would be founded wholly upon the form of the proceeding, upon the circumstance of having the action on book tried first, a mode of proceeding in no way affecting the merits of the controversy or the rights of the parties, but adopted probably on the ground of convenience. The controversy between the parties might be precisely the same as to its subject matter that it is now, only change the plaintiff’s form of action from book account to assumpsit, and then there would be no question but that judgment could be rendered for the sum in arrear. Indeed, in this case if the plaintiff had recovered any sum, no matter how small, the defendant could without question have proceeded to the trial of the plea in offset, and have recovered the balance due. ¥e are not disposed to impair the completeness of our law in regard to offsets, for reasons growing out of mere matters of form or the analogies of the common law, when the doctrine of the common law from which the analogy is drawn has been superseded by our statute regulations and has ceased to exist in this state.
The 10th section of chapter 52 of the Compiled Statutes provides that when a claim is presented to commissioners, the administrator shall exhibit the claim of the deceased in offset thereto. If an appeal is taken from the allowance of such offset, as in this case, its effect is to vacate the decision of the commissioners in allowing the offset, and the necessary result is that the claim is brought into the county court. It will be perceived that the statute does not leave it optional with the administrator to present the claim of the estate before the commissioners. It is made by
The case of Allen v. Rice, in the 22d Vt., decides that where commissioners allow a claim to the creditor and an offset to the estate, and the estate appeals from the allowance of the eo/bbior’s claim, such appeal vacates both the allowance to the creditor and the allowance in offset. In that case the claimant abandoned his claim and no proceedings whatever were had in the county court. In this case the claimant entered his appeal in the county court and persisted in the endeavor to sustain his claim till final judgment was rendered against him on the auditor’s report. After the trial before the auditor he was not at liberty to enter a nonsuit, as was decided in Lyon v. Adams, 24 Vt. 268. The plaintiff having thus pressed his litigation to the very extent of the law, and persisted so long as he could hope to reap any advantage by it, and having reached a point where he could not prevent having his own claim concluded by a judgment against him, and having obliged the administrator by the appeal to come into the county court, there seems no equity in his objection that, having failed himself in the prosecution of an untenable claim, his failure shall preclude the defendant from obtaining final judgment on the claims in behalf of the estate.
A contrary decision would not only mar the law in regard to offsets, but might, by lapse of time, work serious injury to the defendant’s rights.
We are not called upon in this case to decide whether an administrator, omitting to present the claims of the estate before the commissioners pursuant to section 10 of chapter 52 of the Compiled Statutes, would he barred, or to what extent anb how far his rights and the claims of the estate would be preserved by the 18th section of the same chapter. The provisions of that section, that if the administrator brings a suit instead of presenting his claims before the commissioner, the claimant may plead his claims
The judgment of the county court disallowing the offset is reversed, and judgment rendered for the defendant to recover the amount due upon the two notes.