Spencer v. . Cahoon , 14 N.C. 80 ( 1831 )

On the trial, before his Honor, Strange, J., at HYDE, on the last circuit it was objected by the defendant that neither William R. Gibbs nor the plaintiff ever were administrators of Jeremiah Gibbs, and he produced the record of the county court at November Term, 1816, appointing Stephen Gibbs administrator of Jeremiah.

The plaintiff proved that Stephen Gibbs and his sureties, upon his appointment, had only signed and sealed a bond in blank; he also proved his own appointment and qualification at August Term, 1830, of the county court. His Honor, upon these facts, nonsuited the plaintiff, who appealed. The plaintiff was nonsuited because "he was not thetrue administrator" of Jeremiah Gibbs, and it has been argued here as if that was the only point in the case, and as if it depended on the validity of the previous administration granted to Stephen. Such would have been the case had issue been taken on the plaintiff's character by plea in abatement, or demurrer, instead of the defendant pleading in bar. Where indeed an administrator sues on his own (81) possession, he does not make profert of his letters, but shows them on the trial as his title. Their validity may then be disputed, because that is the first opportunity of contesting them given to the defendant. But this suit is brought by the administrator in that character, and is revived by the administrator de bonis non, and must be taken to be on the intestate's possession. The plea of non detinet admits the administration and that it was duly taken. It can never afterwards be brought into dispute in that action. This goes to the character of William B. Gibbs who brought the suit. But the same principle applies equally to the character of the present plaintiff, who is made a party under the Act of 1824. It is true that when a plaintiff dies no process is necessary to make his representative a party, nor is any plea given to the defendant to put the administration in issue. The party is admitted on motion. He must then show his right and the defendant, who is kept in court two terms, must then state his objections. When the administrator is once made a party, the defendant is concluded. (Anonymous, 1 Hay., 455; McNair v. Ragland, 1 Devereux Equity Cases, 533.) If indeed the court has been surprised or deceived the power, not less than the disposition, exists to correct it. But it cannot be done by a nonsuit on the trial of an issue in bar. A motion, founded on a proper case, brings it directly before the court. And here there seems to be no ground for it, because there seems to be no dispute about the issuing of the letters to Spencer, founded on those admitted by the plea to have been granted to William B. Gibbs who instituted the suit which, I repeat, must here be taken to have been on a detention from the first intestate.

If indeed the question was upon the title of the defendant, as being derived from Stephen, or as being good under the Act of 1820 (Rev., ch. 1055) by reason of an adverse possession without suit by Stephen, then the validity of the administration of Stephen would be a material question. And this would certainly be a competent inquiry, so far as it did not conflict with the admission of the plaintiff's (82) character stated in the declaration and admitted by the plea in bar, namely, that he was duly administrator at the bringing of the suit, or when he became a party. If the defendant could show a previous administrator, though he was irregularly appointed, and though for that cause his letters had been repealed, under whom the defendant claimed by purchase, or against whom he held while he could sue, that would be admissible. For this is not a denial of the plaintiff's character, but admitting it, shows a distinct bar. Such, however, does not appear to be the case here, for no connection is stated between the defendant and Stephen, nor any possession against him. The only question seems to have been upon the validity of the plaintiff's letters, which were taken to be invalid because others had been granted to Stephen Gibbs. That was a point into which the defendant had precluded himself from inquiring. The nonsuit must be set aside and a new trial granted.

PER CURIAM. Judgment reversed.