32 Gratt. 92 | Va. | 1879
delivered the opinion of the court.
This is an appeal from decrees in two suits in which the appellant was plaintiff, and, in one, the administrator of Eli Davis, deceased, and the sureties of said Davis, in his administration on the estate of Jacob Groseclose, were defendants; and in the other the said Eli Davis’ administrator, and his creditors were defendants.
The first suit was brought to recover the plaintiff’s claim against the administrator of Jacob Groseclose, her first husband, from his sureties—the estate of Davis being insolvent. This suit was dismissed by the decree of 23d December, 1878; but without prejudice to the right of the plaintiff to seek the satisfacton of her demand against the estaté of
The second suit was afterwards brought against Eli Davis’ adm’r, and his creditors to subject a fund which was in the hands of the receiver, I. J. Leftwich, for the satisfaction of her claim. This suit was also dismissed by the decree of 16th of March, 1878, on final hearing. And the appeal is from those two decrees.
When the appellant’s bill in the first suit was filed, there was a suit depending in the same court, in which Joseph Meeks, guardian, &c., was plaintiff, who sued for himself and all other creditors of Eli Davis, deceased, who would come in and participate in paying the costs of the suit; and Rufus Brown, surviving administrator, and the heirs of Eli Davis, deceased, were defendants. The appellant filed her petition to be made a defendant in this suit, in which she sets up her claim against Eli Davis as administrator of her deceased son, George Groseclose, and refers to a decree of the court which establishes her claim as exhibit A in the cause, but which I have not been able to find in the record. But it is allowed by Commissioner Holbrook in his report, as established by a decree of the court in the suit of Eli Groseclose and als. vs. Davis’ adm’r, entered August 10, 1859, and the same was paid her out of the fund then in possession of the court. The plaintiff in her bill says those two suits were consolidated and heard together. But I do not find that it so appears in the record. And the claim in the Eli Groseclose suit referred to by the court, it seems, was entered years before the Meeks’ suit was brought. But this is the only claim which the appellant made in that suit against the estate of Eli Davis. She set up no claim against Eli Davis as administrator of her first husband, Jacob Groseclose. If she had done so and proved it to be just, and that it was fiduciary, it would have been put with the first class debts,
It was not until April, 1875, that she filed her bill seeking satisfaction from the sureties of Eli Davis. But at that time there had been no final decree in the Meeks ■creditors’ suit. It was still depending and undetermined, and the final decree was not pronounced until the 18th of September, 1875. If, instead of bringing that suit, she had then, or any time before the final decree, filed her petition, setting up the claim of which she is now seeking satisfaction, it would have been in time to have saved at least a part of her debt. Mrs. E. G. Gibboney, executrix ■of Robert Gibboney, deceased, did not prove her husband’s debt of $5,421.76 until September 17th, 1875, only one day before the final decree was entered, and it was allowed. But the appellant, who knew of that suit—for she was a party to it—for some reason that is unexplainéd, preferred to pursue the sureties of Davis for her debt in a separate and independent suit, rather than to seek satisfaction out of the estate of Davis, the principal in a suit already depending, and in which she was a party.
Having made this statement of the case, we will first inquire whether there is error in the decree of December, 1876? That involves the question as to the liability of the sureties.
It is shown by the testimony of Mrs. Ann Tilson herself that she received the note of Eli Davis, the administrator-, for the balance due her from the estate. She had ¡received before, in property which she had purchased at the sale, to the amount of $943.28. She thinks, and seems to be confident, that the writing was signed by him
There is evidence strongly tending to prove that the bond or note was given in anticipation of her second marriage ; that this inconsiderable sum might be secured to her use during her life, and not be reduced to the marital rights of a second husband by her contemplated marriage, and after her death to go to the children of Jacob Groseclose, from whom it was derived. And this view receives support and countenance from her own testimony. In answer to the question, was the note spoken of turned over to her second husband after their marriage? she answers, “It was not turned over by me; I know that he was not to have it.”
Again she says, speaking of the note, “ I saw it frequently while I had it. I kept it in a secret place, and examined it frequently while it was there, but finally missed it, but don’t know where it went.” W. V. B. Til-son, who, it was mentioned at the bar, is administrator of Ransom Tilson, his father, testifies that he found a note among his father’s papers signedaby Eli Davis; says his recollection is it was for $810. Does not remember whether the note was payable to Ann Groseclose, or her heirs. Gave the note to Mr. Gilmore to collect the interest on it, which he understood was coming to his father during his life. Don’t remember whether it stated it was for her distributive share in Jacob Groseclose’s estate or not. Would not be positive it was not. Mr. Gilmore remembers Mr. Tilson giving him the note to place in the hands of a commissioner who was taking an account in some case in which Eli Davis’ estate was before the court in Wythe for settlement, so that his father’s estate could get the benefit of the interest on the note, he claiming that his father’s ectate was entitled to the interest on it whilst he lived. He gave the note to Jos. W. Caldwell, understanding that he
We have next to inquire whether there is error in the decree of March 16th, 1878, for which it should be reversed? This involves the question whether the plaintiff in this suit was concluded and estopped by the final decreee in the Meeks’ creditor suit,-to which she was a party defendant?
In the Duchess of Kingston’s case, 2 Smith’s Leading Cases, top p. 623, marg. 587, it is said, The rule laid down in the celebrated judgment of De Grey, C. J., is, that the judgment is conclusive between the same parties. And again top p. 624, it is held that the record of a verdict followed by a judgment in a suit inter partes will estop, first parties, second, privies. It is well established law that a final decree in chancery is as conclusive as a
That case strikingly resembles this. Both suits were in the same court, and in both of them creditors were seeking enforcement of their respective liens against the property of a common debtor. The suit of Myrick's ex’ors v. Epes & others was brought first, on the 21st of June, 1828, and that of Jones v. Myrick's ex’ors, was brought on the 27th of August of the same year. Myrick was plaintiff in the-former, and defendant in the latter, and answered the bill of plaintiffs. The Epes suit, though brought last, was decided first. There was a final decree in it on the 11th.
We have recited so much of the opinion of Judge Baldwin that the principle decided by that case might be accurately apprehended, and because his remarks are so apposite to the case in hand, that they might be applied to it by putting the name of the appellant in the place of “ Myrick,” and receiver or commissioner in the place of “ sheriff,” and Davis’ lands in the place of “ Dinwiddie land,” except that the Meeks’ creditor suit had been determined by a final decree and stricken from the docket long before the second suit was instituted by the appellant, Mrs. Tilson, which is the only suit by which she sought to subject the proceeds of the sales of the Davis lands to the satisfaction of her debt—her first suit, as we have seen, being intended to recover the amount of her debt from Davis’ sureties. The Meeks’ creditor suit, in which she was a party, was determined by a final decree on the 18th of September, 1875, and stricken from the docket. And her bill to subject the fund appropriated and disposed of by that final decree was not filed until the February rules, 1877. Like Myrick, “ by her wilful waiver or gross neglect,” she submitted to the pretensions of other creditors of Davis, and so allowed the fund to be appropriated for their benefit, in the language of Judge Baldwin, “by an unreversed and irreversible decree.” She has lost her debt by failing to pursue the plain and obvious remedy by which it might have been secured, and this court has not the power to give her relief, however they would be inclined to it if it were in' their power. But to do so would be to divest rights which have been long vested, and to overturn the well established principles of law and equity. The decrees of the court below must therefore be affirmed.
Decree affirmed.