4 Md. 375 | Md. | 1853
delivered (he opinion of this court.
The appellants, on the 28th day of May 1847, filed their bill in the court of chancery against Anne R. G. Mackall and Louis Mackall, Jr., alleging, that they and the defendants in that proceeding were the heirs at law of Thomas Mackall, deceased, and as such, seized of real estate lying in Calvert county. They aver it to be incapable of beneficial division amongst the parties, and pray a decree for its sale, and that the proceeds may be distributed according to the rights of parties. Before the answers were filed, or decree passed, Edward Reynolds and others, as executors of Joseph W. Reynolds, on the 10th July 1847, fried their bill against the heirs at law of Thomas Mackall, praying a sale, for (he payment of his debts, of the real estate of which he died seized. These suits were, on the 15th day of May 1848, by agreement consolidated, but without prejudice to the right of the heirs at law, to rely on any defences they might have against the claim of Reynolds’ executors. It is the claim of Edward
The bill of Reynolds shows that the claim originated in the following manner: On the 14th day of September 1830, Joseph W. Reynolds, as trustee of John G. Mackall, deceased, sold a part of his real estate to Thomas Mackall for the sum of $3832,32, payable with interest in instalments, and took from him his bond, with security, for the payment thereof, in three equal instalments. At May term 1833 of Calvert county court, Reynolds recovered judgment against.Mackall and his surety for the sum of six thousand dollars, to be released on the payment of such sum as Mr. Baden should fix.
At May term 1844 — Joseph W. Reynolds having previously died — the judgment was revived in favor of his executors against Thomas Mackall, who had survived his security. The bill also avers, that Thomas Mackall having died, letters of administration were granted to Anne R. G. Mackall, and that his personal estate is insufficient to pay his debts. This bill was answered on the 28th of December 1847, by Young and wife, and Anne R. G. Mackall. Louis Mackall, Jr., being under twenty-one years of age, by his answer puts the complainants to proof of their claim. The defendants admit the sale, as alleged to have been made by Joseph W. Reynolds, as trustee, and the giving of the bond by Thomas Mackall. They also admit the recovery of the judgment and the revivor of it, but say it was to be released on the payment of such sum as one Jeremiah Baden should ascertain to be due, and that the original judgment was so entered; and also that thejiat was entered subject to such credits as counsel should ascertain. They also claim the benefit of certain credits, and deny the right of the executors of Joseph W. Reynolds to receive the balance, if any be due on the bond, as it is not averred the latter had paid or satisfied the persons entitled to the proceeds of sale of the estate of John G. Mackall.
The proceedings in the cause show, that at May term 1833, Joseph W. Reynolds obtained a judgment in Calvert county
There can he no doubt that the original judgment merged the bond, nor that it was final. Bank of United States vs. Merchants Bank, 7 Gill, 416. Turner vs. Plowden, 5 Gill and Johns., 52, But, although the judgment was final, it was not effective, nor could it be so, until the amount was ascertained, and this was not done and entered of record until after the death of Thomas Mackall. This was clearly irregular, for even were it conceded the death of Mackall did not revoke the authority of the referees, still there is not only no evidence in the record that Mackall was ever invited to attend on their consultations, and exhibit the proofs of any credits to which he might be entitled; but it is manifest from all the circumstances attending the ascertainment of the amount due that Mackall was dead at the time. It is a well established principle, both at law and in equity, that where persons to whom the parties have agreed to refer matters in dispute have consented to undertake the office, they ought to appoint a time and place for examining the matters, and give notice of such appointment to the parties, or their attorneys. Kyd on Awards, 95. And it is said in Rigden vs. Martin, 6 Har. and Johns., 406, “that the parties ought to have notice of the time of meeting, is a position so strongly supported by common justice, that it would seem not to require the aid of authorities.” The same doctrine is fully recognised in Emory, et al., vs. Owings, 7 Gill, 488.
This being so, the. question is presented whether this ascertainment of the referees can be enquired into in this proceeding? We think it can. Had Mackall been living when the award was made, it would have been set aside on his motion
When the judgment was revived against Thomas Mackall all the instalments were due, although such was not the case when the original judgment was obtained; and although where there is a failure to pay an instalment when due, the whole bond is forfeited and the judgment is for the penalty of the bond, yet, under the statute of 8 and 9 William, ch. 3, where all the instalments are not due when the judgment is obtained, the plaintiff must have a scire facias to recover future instalments. The judgment remains as a security to answer such damages as shall be sustained by a further breach of the covenant or writing, and the plaintiff may have a scire facias upon the judgment, suggesting other breaches of the covenant or writing. 1 Wms. Saunders, 72. According to this, when the judgment was originally obtained, the plaintiff would have
It is true the answers of the adult defendants admit the insufficiency of personal assets to pay the debts of the deceased, but this does not dispense w'ith the necessity on the part of the creditor to show that he has applied those assets as far as they will go; and by the proceedings in this cause it appears that Nathaniel Duke, by his first account, as collector of Thomas Mackall, charges himself with $521.22|:.-This must be accounted for before the realty can be called upon to make up this deficit. If the administrator has committed a devastavit his bond is liable. When this case is returned to the court of chancery, that court will examine into the matter and credit the realty for whatever amount of the personalty has been misapplied.
We remand the cause, that an account may be stated showing the amount due by the estate of Thomas Mackall, according to the principles which we have indicated.-
Decree reversed and cause remanded under the Act of 1832,. chap. 302.