1810.

visees

V.

Peter's Administrators.

Code, P.

S. C.

Rev.

48. c.

2. The Chancellor was not incorrect in making a joint decree OCTOBER, against the devisees: for this plain reason. The will (under the act of Assembly) was a nullity against creditors. (a) The case in Mason's De the Federal Court concerning legatees was very different from this. Legatees are considered as innocent sufferers claiming under legal title: but the claim of devisees is nullified by the law. 3. As to the power of the Court to decree a sale of the lands (a) I in a case like this, Mr. Taylor cited Clifton v. Burt, 1 P. Wms. 51. s. 2. 679. note I. 3 Bl. Comm. 436. 438. as to the general powers of a Court of Equity; Stileman v. Ashdown, 2 Atk. 608,(b) an exam- (b) Ambl. 13. ple of a sale to satisfy a judgment creditor; Manaton v. Manaton, 2 P. Wms. 234, 235. the same measure resorted to in favour of bond creditors, though the lands were not devised for payment of debts; and Powell v. Robins, 7 Ves. jun. 211. in which case the lands would have been sold at the suit of simple contract creditors, if the defendant, the devisee, had not been an infant: but liberty was reserved to the plaintiffs to apply for a sale when the infant should come of age. In Galton v. Hancock, 2 Atk. 439. an account was directed to be taken of the real assets descended upon the heir, and that the same should be applied to pay off and exonerate the mortgage upon the estate devised to the defendant. How, otherwise than by a sale, could this be done? In Donne v. Lewis, 2 Bro. Ch. Cas. 263. Lord Thurlow lays down the order of applying assets to the payment of debts; according to which opinion, when the personal estate is exempt or exhausted, first, the real estate expressly devised for the purpose is to be applied; secondly, (to the extent of the specialty debts.) the real estate descended; and, thirdly, the real estate specifically devised subject to a general charge of debts.(c) It follows inevitably, that Lord (c) See also Davis v.Topp, Thurlow meant that all the several descriptions of property spe- cited in the cified by him might be sold by the decree of a Court of Equity. Ch Cus. 259. Such are the authorities in England: but, in this country, the and Wride v. reasons for a sale are still stronger; because there estates gene- ibid. 261. rally bring good rents; but here it is otherwise.

Wickham, in reply, did not conceive it necessary in this case to examine Mr. Taylor's authorities concerning the marshailing of assets, and the power of decreeing a sale. But, on principle, he did not see the Court of Equity's right.

They have no such

note, 2 Bro.

Clarke, cited

1810.

OCTOBER, right in the life-time of the debtor: why, then, should they have it after his death? But, as to the proof of the claim;

Mason's De

visees V.

There never has been an adjudication that the heir is bound by the admission or default of the executor; neither can a judgment Peter's Ad- be presumed to have been right, except against the parties. Yet here there was no admission at all; for no writ appears in the record.

ministrators.

assets.

tor.

If there was any admission, it was equally an admission of The plaintiff, therefore, has no right to come into equity. In every case of a simple contract creditor's applying to marshal assets, it will be found there was no judgment against the execu No instance can be found where such a creditor relied on such a judgment as evidence against the heir or devisee. Lee, Ex(a) 1 Wash. ecutor of Daniel, v. Cooke,(a) is not like this case: for there a privity existed between the vendor and vendee. So, in Anderson (b) 2 H.& M. and Starke v. Fox,(b) there was privity between the executor and legatee; but there is no privity between heir and executor. What this judgment was founded upon does not appear. By what human means can we shew it was unrighteously obtained? Our claim is not only collateral to that of the executor, but prior in point of time.

304.

245.

I hardly expected it would be contended that this decree is correct in being joint, and not pro rata.

The defendants have confessed the real assets devised. In a suit, at law, against devisees, the judgment is never peremptory, except for a false plea. A Court of Law then does equal and exact justice. Yet Mr. Taylor would invert the rule, as to a Court of Equity, and drive the devisees to bring another suit against each other for contribution. He says the case of devisees is different from that of legatees, because, under the act of Assembly, the devise is void. But it is void against such creditors only as have a right at law to come against the real estate. In this case, Peter claims on the ground that his remedy is merely equitable, being only a simple contract creditor. If his right was good at law, why did he come into Equity?

Judge TUCKER having suggested that Peter had a complete remedy, at law, against the executor and his securities; the judgment by default having been an admission of assets, Mr. Taylor begged leave to make a few additional observations.

1810.

visces

V

ministrators.

The failing to proceed to subject the executor at law, is no ob- OCTOBER, jection to the present claim in equity; because it appears that, in fact, the executor had no assets. The judgment by default was Mason's Deonly prima facie an admission of assets even at law; for in Ruffin v. Pendleton(a) the executor was allowed to plead "fully admi-Peter's d nistered" to the action for the devastavit.* A contrary doctrine is held, indeed, in the English books: but there they acknowledge 184 the estoppel arising from the executor's failing to plead to be odious even at law, but not applying to bind a Court of Equity. In this country the Chancellors and County Courts universally have given the executor relief, (where he failed to file the plea of fully administered,) upon the terms of his paying the costs.

In the present case, then, as it appears, from the commissioner's report, that William Mason, the acting executor, had fully administered; for what purpose should Walter Peter have prosecuted him farther? And now, after the lapse of 24 years since the date of his judgment, is it reasonable that a Court of Equity should drive him from its presence to a Court of Law again? Can the plaintiff, at this distance of time, maintain an action of debt upon his judgment?(b) If he can, may not the defendants defeat it by the act of limitations?(c) Would he not, then, by the act of this Court, be completely devested of all right to recover a just debt? and why? because he was not wiser than all the Courts of Equity in this land.

Mr. Taylor moreover observed, as to the proof in this cause, that a judgment may be given in evidence against persons not parties or privies; as if the common and ordinary case of one creditor's suing an executor and obtaining judgment: other creditors are bound by such judgment.

As to the power of the Court to decree a sale of the land; the Court of Equity is influenced by the circumstances of each case. Where the rents and profits are sufficient to pay the debt, a sale is not to be decreed: but where they are insufficient, a sale is best for all parties.

Wickham.

All I contend for is, that, in a naked case, of a judgment by default against an executor, if no equitable excuse

Note by the Reporter. See also ante, p. 11. et seq. the case of Gordon's Administrators v. The Justices of Frederick, in which it was decided that an executor shall not be presumed guilty of a devastavit till it is found against him by a verdict.

(a) 2 Wash.

(b) 2 Bac. (Gwill edit.) Letter H. (c) Ibid. 291.

Abr. 729.

tit. Execution,

tit. Debt, Letter G.

1810.

v.

ministrator.

OCTOBER, appears, he is bound. Does this record (admitting the jugment to have been regularly obtained) shew any excuse for the Mason's De- executor's failing to plead at law. On the contrary, it does not visees appear that he has fully administered according to law; for one Peter's Ad- of the debits is for a simple contract claim of the executor himself against his testator, amounting to 5994. 13s. 10d.; of which he could not avail himself after suffering judgment by default. The rule is that, of creditors in equal degree, he who sues first is entitled to be paid first; and the only means by which the ex ecutor can give a preference is by confessing judgment in favour of the creditor who subsequently sues. As the executor could not bring a suit against himself, he had a right to retain in his own favour, in the same manner as the creditor who sues first is entitled to a preference; but, having suffered judgment by default, in favour of Peter, he loses that advantage.

Mr. Taylor's argument, that the judgment is conclusive against us, is in conflict with his argument that it is not conclusive against the executor. If conclusive as to the amount of the debt, it must be conclusive as to the assets. The case of Erving v. Peters, 3 Term Rep. 685., has settled the point that, if an executor plead payment to an action on bond, and omit to plead fully administered, it operates as an admission of assets, in an action, founded on the judgment, suggesting a devastavit. Neither is there any hardship in this; since, according to Chisholm v. Anthony, 1 H. & M. 27. he might have amended his plea, on motion, at any time before the trial.

I never have understood the law as settled in this country, that an executor may obtain relief in equity, in all cases, where he failed to plead at law. The doctrine that a Court of Equity might give relief in every case where injustice was done, of which it was to be the judge, has been overruled by this Court. And why should that doctrine stand in the case of an executor only? It has been decided by the late Chancellor that an executor, if he thinks himself in danger, may apply to the Court by filing a bill of conformity against the creditors; in doing which he assumes the point that, without the previous interposition requested of the Court, he would be liable for a devastavit by failing to plead at law.

Friday, November 9. The Judges, TUCKER and FLEMING

1810.

(Judge ROANE having been absent at the argument of the cause) OCTOBER, pronounced their opinions.

Mason's De visees

V.

ministrators.

Judge TUCKER. Walter Peter, in his life-time, brought a bill against the executors and devisees of James Mason, the object of Peter's Adwhich was to obtain satisfaction for a simple contract debt due to him from James Mason, deceased, out of the real estate devised to his several sons, the personal estate being exhausted by the payment of debts of superior dignity. He had before obtained a judgment (by default) against the executors, for his debt, but does not appear to have proceeded even so far as to sue out execution upon that judgment. The record in that case is either very imperfect, or the judgment was obtained without even suing out a writ; and the executors who answered speak of it as having been unjustly obtained, and without their knowledge. There is no other proof of the debt. By the account stated by the Commissioner, there appears to be a balance due to the executor William Mason, who alone acted.

The first question that appears to me to arise in this case, is, whether the plaintiff Peter had not a plain and adequate remedy at law? He had obtained a judgment, by default, against the executors. Such a judgment amounted to an admission of assets in their hands. He might have sued out execution thereupon immediately; and, upon the return of nulla bona, he might have brought an action for a devastavit against the executors; and, finally, he had a remedy at law against their securities. After the several decisions of this Court in the cases of Maupin v. Whiting,(a) (a) 1 Call, 224, Pryor v. Adams,(b) and Terrel v. Dick,(c) and those of Turpin Ibid. 540. v. Thomas, (d) and Morris and Overton v. Ross,(e) and some (d)2 H.& M. others, I cannot conceive that such a bill as the present can be (e) Ibid. 408. sustained in a Court of Equity. For any thing that appears, or can appear, by this record, Mr. Peter had his remedy in his own hands at law; and if, without any good reason, he thought proper to abandon it there, he cannot, under such circumstances, come into a Court of Equity.

The second question is, whether, supposing him entitled to come into a Court of Equity, against the devisees, he is, upon the proofs in this record, entitled to a decree against them. And I am clearly of opinion that he is not. There is not a syllable of proof of his claim, in the record, except the judgment, which,

(b) Ibid 382.

139.