Lewis Ex Rel. Smith v. Fagan , 13 N.C. 298 ( 1830 )

FROM WASHINGTON. After oyer the defendants pleaded: 1. Non est factum testatoris. 2. Payment. 3. Set-off. 4. Performance of the condition (299) of the bond by Harramond, the administrator. 5. That the judgment against Harramond, as administrator of Fessenden, was obtained by fraud.

Issue was taken on all the above pleas by the plaintiff, and the cause was tried before DANIEL, J., on the fall circuit of 1829. The plaintiff, having fixed Harramond with assets of Fessenden, to prove the breach as assigned, produced a certified copy of the record of a judgment obtained in Craven Superior Court against both Harramond and Fessenden, in the lifetime of the latter, by the testator of the relator; and also the record of ascire facias on that judgment brought by the relator; in which the death of his testator and of Fessenden was suggested, and whereby the relator sought to have execution as well against the goods of Harramond as against those of Fessenden in his hands. On the return of this scire facias, there being no plea by Harramond, the entry was, "final judgment by default, according to the said writ of scire facias."

The defense in the Court below was very discursive, but it is unnecessary to present any but the following: The defendants proved that the judgment against Harramond had been assigned to Thomas Cox, and that Cox was also the agent of David Clark in the collection of a judgment in his, Clark's, favor against Harramond, as administrator of Fessenden, for $583; that Harramond had sold to Cox a negro, the property of Fessenden, in his lifetime, for $245, which Cox undertook to apply to the judgment in favor of Clark. The execution on this judgment was produced, from which it appeared that no credit for that sum was given, but the whole of the judgment had been satisfied by a sale of the assets of Fessenden in the hands of Harramond. The defendants contended that, under these circumstances, the price of the (300) negro ($245), should be applied to the satisfaction of the judgment in favor of the relator.

The jury, under the direction of the presiding Judge, returned a verdict for the plaintiff, and the defendants appealed. Several objections are made to the recovery effected in this case, none of which, I think, are tenable. The first is, that there was no judgment against Harramond, as administrator of Fessenden; for that he was not sued on the judgment obtained against Fessenden in his lifetime, but only a party to it by scire facias, in which the judgment is quod habeatexecutionem, and not quod recuperet. The answer is that in effect it is precisely the same thing. For by a judgment of recovery what is recovered but the debt, to be levied of the goods of the intestate in the hands of the administrator? Upon the scire facias the same execution goes. But it cannot go in either case until the administrator has been made a party, so as to have an opportunity of showing that there are no assets in his hands against which the plaintiff ought to have execution. The administrator can plead plene administravit in both cases; for that it would be a sufficient cause why the party should not have the recovery or execution. This is the uniform course upon all writs of scire facias to make the executor a party to a (301) judgment against the testator. Noel v. Nelson, 2 Saund., 219, note 2. And if he fail to plead fully administered the executor is concluded as to assets. Rock v. Leighton, 1 Salk., 310; Parker v. Stevens,2 N.C. 218. There is, therefore, a judgment against the assets of the intestate on which an action could be brought against Harramond for adevastavit. This suit on the administration bond may be sustained, without a previous judgment against the administrator in debt, for thedevastavit. Williams v. Hicks, 5 N.C. 437; Washington v. Hunt,12 N.C. 475.

Another objection is that the debt did not survive against Fessenden, and, therefore, that there ought not to have been judgment against his administrator for it; and so the sureties are not bound. And to obviate the consequence of a judgment being in fact so rendered, and its remaining good until reversal, it is said that here is no judgment — for the judgment is, "according to scire facias," after our loose practice, which means such a judgment as ought to have been rendered. This last is a minor point, and it is not necessary to say what is the import of the entry; though we suppose it to mean "according to the prayer of the scire facias," which is a judgment against both. If it is so to be understood it would seem to be conclusive, not of the assets, but of the debt, as against the sureties. Washington v. Hunt, supra. Other creditors or distributees have an interest to contest the debt, and it is open to them; but the sureties have none. Their sole concern is with the assets. They are liable only for a due accounting for them, and they shall have an opportunity of showing that the administrator had none; but if he has assets, to them it is not material whether they are paid to this or that creditor, unless they can show that the debt was recovered by fraud, which is to injure them by making them answer over.

If this was open to the defendants in this case they have not (302) availed themselves of it; for they have not put the fraud in issue; which ought to be by special plea, giving the plaintiff notice.

The general question whether judgments against two survive, upon the death of one defendant, against his executor, is of more consequence, and has been much considered by the Court. The act of 1789, Rev., ch. 314, sec. 4, it is true does not, in so many words, embrace judgments. It is, altogether, inaccurately penned. And it was seriously debated several times whether in the case of obligation a joint suit could be maintained against the surviving obligor and the executor of a dead one — it being contended that a several action survived against each. But the Courts considering it a remedial law, and putting a fair construction on it, held affirmatively. Brown v. Clay, 2 N.C. 107;Davis v. Wilkinson, Ib., 334. This was followed by the act of 1797, Rev., ch. 475, directing how the judgment should be entered in such joint suit, and permitting the creditor to treat the contract as both joint and several in the same suit. These legislative and judicial proceedings show that it is the policy of the authorities of the country to extend the principle of the act of 1789 as far as will completely remedy the evils at common law, both for the benefit of the creditor and the surviving debtor. To show how little the writer of the statute had considered the subject, it is only necessary to remark that in the preamble he adverts but to the single rule of the common law, by which a surviving "obligor" was oppressed and injured by becoming the sole debtor; yet afterwards it is enacted that the joint "debt or contract" shall survive, and that all joint obligations and assumptions of copartners and others shall be joint and several. It seems to us to be the spirit of this act that all debts, however due, should survive. There seems to be no reason for the exception of a judgment. If a bond is in suit against two and (303) one die, the executor may be brought in. Why not also after judgment? So if upon a joint bond a judgment be recovered against one of the obligors, and he die, that judgment may be enforced against his executor, and at the same time suit brought on the bond against the surviving obligor. Or, if several judgments be rendered against both obligors, and both die, the executor of each will be liable. We can perceive no possible reason why in the case of a joint judgment it should not be so likewise. We think this is a fair construction of the statute, and we know it is the one long acted on; for we are not apprized of a single instance in which a creditor has filed his bill to reach the estate of the deceased defendant, though in numerous cases the survivor must have been solvent, and the debt been paid by the executor of the dead defendant.

There is nothing in the point made upon Cox's receipt of the money. If he did receive it was as agent of Clark; and if he has not applied it to Clark's debt it has never been applied to this by Harramond, who alone could do it.

PER CURIAM. No Error.

Cited: Grier v. Fletcher, 23 N.C. 419; Jackson v. Hampton, 32 N.C. 592,593, 602, 603; Kelly v. Muse, 33 N.C. 191; White v. Grffin, [Griffin] 47 N.C. 4; Strickland v. Murphy, 52 N.C. 243.