14 W. Va. 211 | W. Va. | 1878
delivered the opinion of the Court:
The general rule is, that when an interlocutory decree is pronounced, settling the principles involved in the issue in the cause, that it should be corrected in the court below upon a petition for a rehearing. Manion v. Fahy, 11 W. Va. 491, but it may be that more latitude is allowed the court, where there is pending a creditors’ suit and the object of the court is to distribute the funds to the parties entitled to receive the same.
The first question to be determined is, as to the correctness of the decree of June 13, 1876. That decree gave the plaintiff priority over Polsley, and disallowed the claim of J. M. Laidley entirely.
The claims of Slack and Polsley stand precisely on the same footing, as to the amount thereof, that Slack luid paid. , If the claim of the plaintiff was entitled to priority, then so much as Slack had paid of that claim to Woodyard, the receiver, he being bound on the note therefor, he had a right to have paid to him, after Woodyard had received all his money. But did Wood-yard have any priority over the other creditors ? In the first decree entered in the cause upon the commissioner’s report the court decided, that he had not; and the court certainly decided correctly; for Woodyard’s judgment was no lien against the lands of the heirs of the debtor, J. J. Polsley. Ajudgment recovered by a creditor against an
Should the claim of J. M. Laidley have been disallowed?
It is clear from the record in this cause, that'J. M. Laidley’s claim was not barred by the statute at the date of the first decree of reference, and therefore the court erred in holding that the statute applied thereto.
J. M. Laidley, who was, as we have seen, one of the creditors, excepted to the commissioner’s report, and in that exception relied upon the statute of limitations as a harto the-claim of John Slack, Jr. This exception raises the questions: first, can the statute of limitations be relied upon in this mode? and if so, can a■ creditor take advantage of the statute ?
It was at first ruled, that as the statute prohibited actions from being brought beyond á certain period from the time, when the cause of action accrued, it was to be
In Hickman v. Stout, 2 Leigh 6, it was hold, that “there is no rule better established, than that one cannot, avail himself of the statute of limitations in a suit in equity without pleading it.”
In Hudson v. Hudson’s adm’r et al., 6 Munf. 352, it was held that in a case where it is necessary to plead the act of limitation, it ought, in order to form a bar, to be specially pleaded or at least insisted on; that is, the term prescribed by the statute should bojjartieidarly, if not formally, pleaded, or relied on, to let in the plaintiff to show in his replication, that within that term an original had been sued out, if the fact were so, and thus to avoid the bar.
In Purcell v. Wilson, 4 Gratt. 16, it was said, that the Act, 1 Rev. Code, ch. 118, § 1, which authorizes the recovery of damages in writs of right, intends such damages as maybe recovered in actions of trespass for mesne profits. And as from the form of the pleadings the statute of limitations applicable to the mesne profits cannot be pleaded, the tenant may give it in evidence at the trial; and the demandant’s recovery of mesne profits will be for five years next before the bringing the writ of right down to the recovery of the possession. It is a familiar practice- in the trials of ejectment eases, for the defendant to rely upon the statute of limitations under the plea of “not guilty,” because that is the plea prescribed by the statute.
In Tazewell v. Whittle, 13 Gratt. 329, it was hold, that the plaintiff having stated in his bill, that his debt was evidenced by deed, if it appears in the progress of the cause that it was by parol, the executor may set up the defense of the statute by exception to the commissioner’s report.
By our own court in a recent case, Ogle v. Adams, 12 W. Va. 213, it was held, that when there is a bill filed for partition of lands and for rents and profits thereof by one tenant in common against another, and the statute of limitations of five years is not pleaded as to rents and profits before the court, before or at the time of the order of reference to the commissioner of the court to ascertain the rents and profits, with which the defendant should bo charged, and it does not appear, that the defendant relied upon the statute as to such rents and profits before the commissioner, and that the commissioner failed to recognize the statute or disregarded it, the Appellate Court will consider the statute of limitations out of the case.
If the defendant relies upon said statute of limitations as to rents and profits before the commissioner, and the commissioner includes in his report items of rents and
When a commissioner under an order oí reference, to
The cases we have been consulting'relate to the defendant debtor, .or other defendant liable to plaintiff, who has been permitted in various modes to rely upon the statute of limitations.
The next enquiry is: Can a creditor of an intestate rely upon the statute of limitations, when the personal
Sec. 5 of chap. 87 of the Code declares, “ if any personal representative, guardian, curator or committee,
Judge Story in his first vol. of Eq. Jur. §548, speaking of the decree of reference says: “ It directs the master, to take the accounts between the deceased and all his creditors, * * it also directs the master to take an account of all the personal estate of the deceased in the hands of the executor, or administrator, and the same to be applied in payment of the debts and other charges in due course of administration. In allcasds of this sort each creditor is entitled to appear before the master, and there, if he chooses, contest the claim of any other creditor, in the same manner as if it were an adversary suit. ”
In Feamster v. Withrow, 9 W. Va. 296, it was held, that “ when a bill is filed by a grantor in a deed of trust and one of the cestuis que trust therein against the trustee
Ilaymond, J., in this case, after citing 1 Story Eq., Jur., and the other authorities, said: “ It would bo strange indeed if the creditors and securities and indor-sers in this case should not be allowed to contest the claims of each other, before the commissioner and the
It seems clear, that where a reference has been made*, to a commissioner to settle the accounts of an intestate, that the creditors may appear before the commissioner, and contest the claims of each other; but can they rely upon the statute of limitations, which is generally pleaded and relied iipon by the defendant alone ? Clarke v. Hogeman, 13 W. Va. 718. We do not in this case decide the question, whether the creditors of a living man, when a reference is made to the master to audit his accounts, can before the commissioner rely upon the statute of limitations to defeat the claims of each other. But in the case of a deceased debtor, it is made the duty of the personal representative to plead the statute to any claims against his decedent, which are barred, and if for any reason he should fail to do so, ought creditors, -whose claims are not barred, to be made to suffer by reason of such failure, whether it was caused by collusion or negligence ?
In Shewen v. Vanderhorst, 4 Cond. Eng. Ch. 458, the Lord Chancellor said: “The question hero is, when a decree has been pronounced, taking possession of the estate and vesting it in the court for the purpose of distribution, a decree, by which the accounts are directed to be taken, and the assets are to be administered in the master’s office, and after which the common law must be altogether silent, whether under these circumstances, if the objection that the statute has barred the remedy be raised against a debt, and in whatsoever way, or by whomsoever, being parties in the suit, be they creditors, or executors, or even volunteers the objection be raised, it must not be considered fatal? And without at present saying, how far the master is himself entitled to set up the objection, I can see no reason certainly, why it may not bo competently taken by a creditor, or volunteer, as well as by the personal representative.”
In such a case if a creditor -did not before the commissioner rely upon the statute, but after the report has
J. M. I'aidley had therefore the right to make the exception to the report; but it cannot avail him, for the reason that as to the claim of John Slack, Jr., it was not barred, for the reasons heretofore stated; and the exception was properly overruled.
John Slack, Jr., excepted -to the report, because the commissioner had allowed the claim of D. Polsley, claiming that they were voluntary payments, and he had no right therefore to have them allowed. These claims
The decree of the circuit court of Kanawha county rendered in this cause on the 13th day oí June, 1876, is therefore reversed with costs in favor of the appellants, against the appellee, John Slack, Jr. ; and this cause is remanded to the circuit court of Kanawha county, with instructions to cause the personal fund belonging to the estate of John J. Polsley, deceased, and the proceeds of the sale of his real estate, to be collected and distributed to the creditors named in commissioner Fontaine’s report according to the principles of this opinion, and further according to the rules governing courts of equity
Decree Reversed and Cause Remanded.