Manly's Adm'r v. Turnipseed , 37 Ala. 522 ( 1861 )

A. J. WALKER, C. J.

The plaintiff’s intestate died in possession of the slaves, for the recovery of which this suit is brought, and had his domicile, at the time of his death, in Georgia. The defendants, and the person from whom they bought, have been in adverse possession for more than six years before the commencement of the suit. The plaintiff’s administration was obtained less than six years before the commencement of suit, and there had been no previous administration in this ’State. There was an administration in Georgia, more than six years before this suit was brought, and before the plaintiff was appointed. If there had been ho other administration than the plaintift’s, it is very clear that the defense of the statute of limitations would not have been available. The operation of the statute, after the death of the intestate, can not commence until there is an administrator. — Lawson v. Lay, 24 Ala. 184; Johnson v. Wren, 3 St. 172. This is admitted by the appellees ,* but it is contended, that the operation of the. statute is secured by the existence of an administration in Georgia, to which the right of suit attached by virtue of our statute, found in Clay’s Digest, 227, § 31; and that is’the position, upon the correctness of which we are'4© decide.

The statute of limitations which applies to this ease, explicitly declares, that all actions of detinue shall be commenced within six years next after the cause of such action shall have accrued, and not after.- — Clay’s Digest, 326, 78. Notwithstanding this explicit language of the law, the courts, from the clear justice and propriety of the thing, have engrafted an exception, in favor of those cases in which there is no person to sue. — Ang.on Lim. 61, § 60. Our statute gives a right of suit, in -the absence of an administration here, to tbe administrator in a sister State and it would be a manifest enlargement oí the exception, to include a case where there was such a foreign administrator. We do not pause to consider whether it is obligatory upon the foreign administrator to sue, when there is no administration in -this State.- — Shultz v. Pulver, 11 Wend. 361; Helme v. Sanders, 3 Hawks, 563. It may he conceded, that the statute merely secures a privilege to the foreign administrator, of which he may or may not avail himself at his election;; and from '-the concession no inference in favor of the ’-.appellant can be deduced. The exception is founded upon tbe want of a person who caw sue, and not upon the want of a will to sue. No person, save those who are acting in a trust capacity, is bound to sue. The right of suit is merely permissive ; and tbe operation of tbe statute is grounded upon tbe idea, that persons having the permission of the law to sue, forbear to do se, but acquiesce in the assertion of a hostile right. The efficiency of the statute would be utterly destroyed, and its command disregarded, if it were allowed no operation except where there was an obligation to sue.

It is contended, however, that the right of suit does not attach to the foreign administrator, by virtue of his foreign appointment, but grows-out of bis recording the letters of administration, and giving; bond, as required by our statute ; and that, upon complying with those requisites, an ancillary administration--springs up in this State, under which the suit is maintained, and the assets received. This argument is supposed tohe favored by the fact, that this court,: in Robinson v. Robinson, (11 Ala. 947,) spoke, arguendo, of the recording of the letters of administration, and giving the prescribed .bond, as “in effect an ancillary administration.”" We do not think the argument is supported by tlie incidental remark alluded to. The court intended nothing more than to convey the idea, that a foreign administrator, who had complied with the statute, had authority, like that of an ancillary administrator appointed in this State, to recover assetsmf the estate, which were the subject of an administration in this State. That a foreign administrator, who complies with our statute, does not become an ancillary administrator,: and recover assets here in a'new capacity, derived in this State, is conclusively shown in the case of Broughton v. Bradley, 34 Ala. 694. If such foreign administrator became an ancillary administrator, within the jurisdiction of this State, it would follow, that no ancillary administrator could, afterwards he appointed in this State, and that the authority of the foreign administrator could not.be overthrown-by the appointment of an ancillary administrator ; -yet the reverse of these things is held in the case referred to. l-

The conclusion.can not be resisted, tbat a foreign administrator, under our statute,, is permitted to act in this State, by virtue of his foreign appointment, and in the capacity derived from tbat appointment. The language of the statute itsglf does not admit of any other conclusion. It bestows the right upon the foreign administrator to maintain any action, to demand and receive any debt, and to exercise all the rights and privileges-which he would have done if- duly appointed and qualified in this State. It does not «ven require that" the letters of administration should be recorded before suit is brought.- The foreign administrator is permitted to sue here, without solitary preliminary step. This conclusively shows, that'our law recognizes in him a right of action-by virtue of the foreign appointment. The requisition, that the foreign administrator-shall, before receiving any assets of the estate, record his letters of administration, and give bond, does not -militate against the operation of the statute. . The prescribing of conditions, necessary for the security of persons interested, as a preliminary to a remedy, can not justify an exception from the statute. If it did, there could be no prescription against an action winch the law required should be preceded by the giving of security for “cost, or other bond j and yet, we apprehend, ans argument-for the exemption of such cases from the statute would not be made. .

The statute of limitations was designed to be one of repose. Its effect is beneficent. It quiets titles, lessens litigation, and promotes justice, by. requiring the settlement of controversies before time has obliterated any of the evidence. Its operation-.ought to be maintained with a steady hand. This we should not do, if we allowed it no effect against a foreign.administra tor, clothed by our law with a right to sue. A foreign administrator, if he is not affected by our statute of. limitations, might ¡designedly.'fold his hands, and remain quiet,: until time should destroy all the evidences upon which a-j-ust defense depended, and then obtain an unrighteous recovery.- It would be a most unjust and unreasonable discrimination, tobar by the lapse of time the claims of our own administrators, and yet put no limit to the right of suit, on the same claims, in favor of a foreign administrator; yet this discrimination the appellant asks ns to make. When the legislature gave a right of suit to foreign administrators, it must have intended that they should be subject to the same defenses as other administrators.

[2.] The bill of exceptions contains the entire-evidence. We clearly perceive that the ruling of the court, in refusing to suppress the answer mentioned in the brief of appellant’s counsel, even if erroneous, did not affect the result of the trial, and did the appellant no injury. A knowledge on the part of an -adverse holder that his title was defective, would not, of -itself, prevent the operation of the statute in his behalf.

W e do not deem it necessary to notice particularly each separate charge asked, and each ruling upon evidence. What we have said covers all the points made by the counsel. There is no reversible error in any of the rulings of the court below, and its judgment must -be affirmed.