Groot v. Hitz ( 1884 )

Mr. Justice Cox

delivered the opinion of the court. After making the foregoing statement of the case, he proceeded:

It should be remarked here that there is an irregularity in the form in which the auditor has made his report. He files alternative statements of account, but does not adopt either as his report. The, proper way is for him to decide which statement is correct and adopt that, and allow it to be excepted to. That is, however, not rei-y material.

The whole question turns on the defence of the Statute of Limitations to this claim of Daisy F. Oasparis. The law upon the subject is found in the act of assembly of Maryland of 1729 and the additional one of 1798, the testamentary act. The first provides, that—

“ All actions upon administration and testamentary bonds shall be commenced within twelve years after the passing of the said bonds, and not alter.”

Gi-uardians’ bonds are put on the same footing by the act of 1798. Then there is this provision in the same act of 1729 :

“Nothing in this act shall be construed to bar any person within the age of twenty-one years, feme covert, non compos mentis, or imprisoned, or persons heyond seas, from bringing an action or actions within six years after their coming to or being of full age, uncovert, sound memory, at large, or returned from beyond seas, upon any administration or testamentary bond.”

• The bond in this case is dated April 20th, 1869, and the present suit was commenced July 28,1882, which was nearly thirteen years after the date of the bond, or “after the passing” of the bond, in the words of the act of assembly. On the face of it it would appear to be barred by the Statute of Limitations. There is a question as to the date of the birth of this petitioner, and whether she does not come within the exception of persons under age. It is claimed, on her part, that she was horn in the autumn of 1854, and by the defence it is claimed sir; was born in September, 1858. If the former were true, then the suit was brought within the time, because the six years would not have elapsed after she became of age. But we are satisfied that the weight of testimony shows very clearly that her birth was in 1853, so that she came of age on the 28th of September, 18'T4. She then had not only six years, but seven years after she became of age for the institution of this suit, before the twelve years of the life of this bond had expired. So that this exception does not avail her anything.

The petition of Daisy F. Casparis proceeds upon the theory that she had recovered a judgment, and that that judgment is her cause of action; that the judgment is good against the real estate, the real assets, as well as against the administrator. But it is perfectly well settled in this jurisdiction, by the Court of Appeals of the State of Maryland, and by a decision of this court, in Keefe vs. Malone, 3 Mac Arthur, 236, and, above all, by a decison of the Supreme Court of the United States, in the case of Ingle vs. Jones, 9 Wallace, 495, that a judgment recovered against the administrator is not even prima facie evidence against the heir-at-law, but the plaintiff must commence de novo against the heir upon his or her original cause of action, as if no suit had been instituted against the administrator. Not only that, but the heirs-at-law are at liberty to make any defence that any one else could make to such new suit, and, among others, the defence of the Statute of Limitations. It, therefore, seems to us very plain that the defence of limitations must be sustained.

Another point made on the part of the petitioner is that these assets ought to be marshalled; that is to say, that inasmuch as she has no recourse against the real assets, and the other complainants have against both personal and real, the latter ought to be excluded from participation in the personal assets, and these should he applied to her claim, and the other creditors thrown on the proceeds of the real estate. The rule undoubtedly is that if one creditor has a lien upon, or has a resort to, two different funds belonging to the debtor, and another one may only resort to one of them, the law, in order to save the latter, will throw the creditor having the larger and more ample remedy on the fund not common to both, in order to save the other debt. But that hardly applies to a case like this. This is a case in which all the creditors have, at law, a similar recourse to all parts of the debtor’s estate, and one of these creditors lost it by her own laches. That is, she had as much right as these other claimants to proceed against the real assets, but failed to bring her suit in time. We never have known a case where the law marshalling assets applied to a case like that, and the contrary is laid down by the Lord Chancellor, in 10 Hare’s Reports, 229, in the following language :

“It is said next, that under the doctrine of marshalling, the right of the plaintiffs must be considered to subsist for the period of twenty years; and Vickers vs. Oliver and Gibbs vs. Ogier are relied on upon that point. But upon examining the case of Vickers vs. Oliver, it will, I think, he found that the judgment does not at all bear out the marginal note as to the simple contract creditor not being barred by the lapse of less than twenty years; and in Basby vs. Seymour (1 J. & L., 527), that case seems to me to be referred to the true ground on which by the judgment it was rested. And with reference to the case of Gibbs vs. Ougier, it goes no further than to decide that the court will marshal the assets, although the right to marshal may not be distinctly raised by the pleadings; it does not at all affect the question which arises in the present case, whether the court will do so at the instance of a plaintiff whose immediate right against the real estate is barred by the Statute of Limitations. I can find no authority which goes to that extent. Simple contract creditors have now a direct right against the real estate in case of a deficiency of the personal. They do not require the aid of this court to marshal the- assets in order to give them a remedy against the real estate; and for whatever purpose the doctrine of marshalling may be necessary to be kept on foot, I do not think that it ought to be kept alive for the purpose of giving indirectly a right which could not be asserted directly. The consequence would be that, in all cases where there are any specialty debts, the simple contract creditors would be entitled to sue the real estate at any time within which the specialty creditors could have sued; in effect, to create in equity the same limitations as‘to simple contract debts as the statute has prescribed as to specialties.”

It does not seem, therefore, that, the doctrine of marshalling could apply to this case, and we must, therefore, sustain the exceptions of the defendant to the alternative statement made by the auditor in which the claim of this petitioner is allowed, and overrule the exception of the petitioner to the other alternative statement from which it is excluded. The case was certified to be heard here in the first instance, and the order will have to be drawn in that form.