Jones' Executors v. Lightfoot , 10 Ala. 17 ( 1846 )

ORMOND, J.

We are entirely satisfied, that upon the case as made by the bill, the complainant is only entitled to the difference between the price paid for the land, and the sum at which it was purchased by him from the heirs of Lewis. Whatever might be the rule at law, in such a case as this, where no notice was given, the warrantor of the pending suit for the land, which resulted in the eviction— and especially when the subsequent purchase was made without application to the warrantor, so as to enable him, by making the purchase, to comply with the warranty, he must be held to have made the purchase for his own security. As the complainant has resorted to a court of chancery for relief, he must do equity — all that in equity and justice he can ask, is, to be reimbursed, and placed in the same condition as if the warrantor had procured the conveyance to be made. It cannot be tolerated, that he should, by a secret purchase, be permitted to speculate upon what is admitted in the bill to be a mistake. The case of one filing a bill to avoid the payment of usury, who is always required to pay the sum actually due, is the same principle in another aspect. •And it may be stated as a universal proposition, that a court of equity never voluntarily lends its aid to do injustice.

This principle was considered as of too much moment to be passed over, but it becomes wholly unimportant, upon the further investigation of the cause, because we think the statute of non-claim, interposed by way of plea by the executors, is an effectual bar to the revival of the suit against them.

The act declares, that “all claims shall be presented to the executor, or administrator, within eighteen months after the same shall have accrued, or within eighteen months after letters testamentary, or letters of administration, shall have been granted to said executor or administrator, and not after; and all claims not presented within the time aforesaid, shall be forever barred from a recovery.” The act contains a saving clause as to infants, &c. which does not apply to this case. [Clay’s Dig. 195, § 17.]

The question to be decided is, what is meant by a presentment of the claim, to the executor or administrator ?

If knowledge merely, of the existence of the claim by the personal representative is sufficient, in any conceivable case, (except where the debt is due to the personal representative himself,) it must be in this. The executors are the sons and heirs of the deceased, and it is clear from the proof, that they were perfectly aware of its existence, as they had consulted counsel about it. But in our opinion, knowledge merely of the existence of the claim is not sufficient, and to hold that it was, would be in effect' to repeal the statute. At least it would introduce so many exceptions to the rule, that the rule itself would be rendered nugatory. The statute is in effect, a statute of limitations, passed as much for the benefit of the heir, and distributee, as of the personal representative, and to secure the speedy settlement of estates; and is as obligatory in a court of chancery, as at law. It is emphatically a statute of repose, and includes judgments, to which the administrator 'is not made a party, as well as any other demand. [Thrash v. Sumwalt, 5 Ala. 13.] The plain and obvious design of the statute was, to enable distributees, and legatees, to demand a distribution of the estate, at the expiration of eighteen months from the grant of letters, unless it Avas necessary for the executor, or administrator, to retain it longer in his hands, for the purpose of paying debts. To justify him in so doing, he must be furnished with the evidence that claims exist against the estate, and will be enforced. This evidence the statute requires, to be a presentment of the claim, and in our opinion, nothing short of an actual presentment will satisfy its demand.

The service of a scire facias upon the personal representative to revive a judgment, or a suit in progress within the eighteen months after the grant of letters, would doubtless be a presentment of the claim. The effect of the attempt to revive this suit, by scire facias, instead of by bill of revivor, need not be considered, as it was never executed or returned. The bill of revivor was not filed, until after the expiration of the time for the presentation of claims; the plea therefore, of the executors, of the statute of non-claim, is fully sustained by the record, as it is not pretended there was a presentation in fact made.

At an early period, this court held, that a suit commenced against the personal representative, within eighteen months, to which the plaintiff submitted to be non-suited, was not a sufficient presentment of the claim. That the statute required an actual presentment, and the mere service of a writ, af-terwards abandoned, was not a presentment. [Bigger, Adm’x, v. Hutchings and Smith, 2 Stew. 448.] This case has been acquiesced in from that time to the present; at least it has not been judicially questioned, except in the case of Garrow v. Carpenter and Hanrick, 1 Porter, 374. But it is to be observed, that the facts of this last case, were entirely dissimilar, and although some doubt is intimated about the propriety of the decision in 2 Stewart, the court expressly disclaimed any [intention of overruling it. The leading principle of the case, that there must be an a&tual presentment of the claim within eighteen months, or something done by the party equivalent to it, is admitted. Whether the commencement of a suit against the personal representative, to which a non-suit was taken, was such an equivalent, the court in the case cited from 1 Porter, were not called on to decide; nor are we, as nothing was done here, but to suggest the death of the testator, and the suing out of a scire facias, which was neither executed or returned. The 15th rule of practice, (Clay’s Dig. 613,) applies to cases where no answer is required from the personal representative, and authorizes the register to revive the suit, if no cause is shown to the contrary, when the process is returned executed. It is clear this ineffectual effort to revive the suit, cannot be considered as a substitute for a presentment of the claim.

It is further argued, that the statute does not apply to this case, because it is alledged the claim depended on a contingency. This contingency is supposed to result from the fact, that there was a mistake in the deed, which the complainant was compelled to ask the aid of a court of chancery to rectify, and that as it could not be known, until the court ordered the mistake to be rectified, whether any claim existed, it was contingent, and no presentment was necessary.

There are doubtless cases of contingent liability, which may never accrue, and which therefore there is no necessity to present to the personal representative. The case of a surety is of that class, he has no claim, or demand, against his principal, until he pays the debt: until then it is uncertain whether the relation of debtor and creditor will ever subsist between him and his principal, his claim, (if claim it can be called,) or, to speak with more precision, his liability to pay the debt, is contingent; it may never happen ; and need not therefore be presented, until the event occurs. Such was the case of Neil v. Cunningham, 2 Porter, 173, and see Huie v. Pinkston, 9 Ala. 262.

A contingency, excepted from the operation of the statute-, cannot depend upon the action of the court in granting or refusing relief. If the party is not entitled to a judgment, or decree, at the hands of the court, he has no claim against the estate, and there is an end of the controversy. If he is, it cannot be considered as contingent, whether it will be granted or refused. In this case, upon establishing the fact of the mistake in the deed, and the injury consequent thereon, the redress was as certain as upon an instrument in writing for the pa3nnent of money. Whether a claim exist, or not, does not depend upon the proof by which it is established, or the forum in which relief must be sought, and indeed, the argument, if allowed, would go the entire length of repealing the statute.

The statute requires the presentation of the claim, within eighteen months after it has accrued, not, it will be observed, after the right of action has accrued; therefore, a claim payable either presently, or in' future, must be presented. In King & Barnes v. Mosely, 6 Ala. Rep. 610, this principle was applied to a warranty of title, and it was held, that as soon as it was converted into a money demand, it became a claim, which must be presented to the personal representative. See also this principle further illustrated in Pinkston v. Huie, 9 Ala. 262.

When did the claim accrue in this case ? It accrued when. the complainant was evicted by a title paramount, from the land which the deceased intended to sell, which he supposed he was selling, and which Talbot, the vendee, supposed he was buying, and obtaining possession of. Then at least, if not previously, his right to be refunded the purchase money arose.

This case certainly has the appearance of hardship, as it is evident the money is due from the deceased, and the omission to present the claim to the executors, has in this instance worked no prejudice to the estate. But we feel constrained to adhere to the plain and explicit declarations of the statute: that a claim not presented within eighteen months after it accrues, or after the grant of letters of administration, shall be forever barred. The proviso of the statute guards against unintentional omissions to make presentment, but it must have been contemplated, that losses would accrue from the negligence of claimants. This was doubtless considered as a small evil, when compared with the magnitude of the principle involved — the speedy and final settlement of the estates of deceased persons. We feel it our imperious dihy, to enforce this statute according to its spirit, as well as its letter, and thus make it what it was intended to be, a final limitation of suits, after the period provided for has elapsed.

Let the decree of the Chancellor be reversed, and a decree be here entered, dismissing the bill of revivor.