Walker v. Cheever , 35 N.H. 339 ( 1857 )

EastmaN, J.

The demurrer filed by the defendants presents two questions: first, whether the case stated by the bill is such as falls within the jurisdiction of this court as a court of equity; and second, whether the complainants have not a complete and adequate remedy at law.

The defendants are the executors of Charles A. Cheever, and the claim against them is for contribution, arising out of a note signed by Cheever and by the complainants and others, and paid by the complainants.

Under the English practice, courts of equity assume a very general jurisdiction over cases of administration, from the fact that the courts of common law and ecclesiastical courts in that country are held not to have powers adequate to give effectual relief. Many instances of the kind will be found stated in 1 Story’s Com. on Eq., chap. 9. This jurisdiction is said to have been founded upon the principle that it is the duty of the court to enforce the execution of trusts. Bac. Abr., Legacy, M; 1 Madd. Oh. Prac. 466-67; 1 Story’s Com. on Eq., sec. 532. But it has been also said that other grounds exist, such as the necessity of taking accounts and compelling a discovery.

With us there is no necessity for assuming any such general jurisdiction in equity upon this subject. Our statutes providing for the settlement and distribution of estates, in most cases give ample powers to the courts of probate and of common law to enforce all needful remedies to secure the rights of all parties, and so far as these statutes may apply in the settlement of estates, they take from chancery its jurisdiction. Under the statute of 1832, however, and by reenactment in the Revised Statutes, among the powers given to this court as a court of equity, is to hear and determine “ in all cases of trust.” Rev. Stat., chap. 171, sec. 6; and in Parsons v. Parsons, 9 N. H. 309, it was held that an administrator is a trustee for heirs and «.’editors, and that we have power as a court of chancery over trusts of that description, upon a proper case, for enforcing the rights of those interested in the trust. Under that statute and the authority of that case, the complainants may sustain their bill, if it states “ a proper case.”

It is held in England and in New-York that a creditor may come into a court of chancery against an executor or administrator, for a discovery and distribution of assets. Attorney General v. Cornthwaite, 2 Cox 44; Martin v. Martin, 1 Vesey 210; Rush v. Higgs, 4 Ves. 638; Thompson v. Brown, 4 Johns Ch. 619. But in McCoy v. Green, 3 Johns. Ch. 58, the learned Chancellor Kent says, “I doubt whether a creditor ought to come into this court in an ordinary case, and without some special cause, to collect his debt from an executor or administrator. It would seem not to be enough to state that he is a simple contract creditor, for this would invite all suits against executors in this court. The ordinary and proper, as well as the cheaper and easier remedy, is at law.”

In Thompson v. Brown, 4 Johns. Ch. 643, the- question was fully examined, and the doctrine, as finally settled in the English chancery, is stated to be this: that upon the usual decree to account in a suit by one or more creditors against the executor, either singly for themselves, or specially in behalf of themselves and all other creditors, (for it makes no difference,) the decree is for the benefit of all the creditors, and in the nature of a judgment for all; and all are entitled and are to have notice to come in and prove their debts before the master; and that, from the date of such decree, an injunction will be granted upon a due disclosure of assets, upon the motion of either party to stay all proceedings of any of the creditors at law.

Bills of this sort have been allowed upon the ground that, as executors and administrators have large powers of preference at law, courts of equity ought, upon the principle that equality is equity, to interpose, upon the application of any creditor, by such a bill, to secure a distribution of assets, without preference to any ose or more creditors. And, as a decree in equity is held of equal dignity and importance with a judgment at law, a decree upon a bill of this sort, being for the benefit of all the creditors, makes them all creditors by decree upon an equality with creditors by judgment, so as to exclude, from the time of Such decree, all such preferences. 1 Story’s Com. on Eq., sec. 547; Perry v. Philips, 10 Vesey 38.

This priority, however, which creditors holding judgments and specialties against the estate of the deceased, have over those holding simple contracts, does not exist in this State. Under our statute, a judgment or bond creditor has no preference over one who holds a simple promissory note. And hence, with us, this main reason for a creditor’s bill does not exist; and, not existing, the remarks of the court in McCoy v. Green, already quoted, may well apply. Eesort to equity should only be allowed in special cases. The ordinary and proper, as well as the cheaper and easier remedy, is at law.

Again: chancery has jurisdiction in matters of account; but to sustain a bill for an u account,” there must be mutual demands ; not a single matter, but a series of transactions on one side, and of payments on the other. Porter v. Spencer, 2 Johns. Ch. 169; Dinwiddie v. Bailey, 6 Vesey 136; 1 Madd. Ch. Prac. 70; 1 Story’s Eq., sec. 458.

If a discovery is wanted in aid of the account, and is obtained, a bill may be sustained when the accounts to be examined are on one side only. But where the accounts are only upon one side, if no discovery is asked or required by the frame of the bill, the jurisdiction will not be maintained. 1 Story’s Eq., sec. 458.

After a general discussion of the jurisdiction of chancery in matters of account, Story states the rule as follows: On the whole, it may be laid down as a general doctrine, that in matters of account, growing out of privity of contract, courts of equity have a general jurisdiction where there are mutual accounts, and also where the accounts are on one side, but a discovery is sought and is material to the relief. And, on the other hand, where the accounts are all on one side, and no discovery is sought or required; and also where there is a single matter on the side of the plaintiff seeking relief, and mere set-offs on the other side, and no discovery is sought or required ; in all such cases courts of equity will decline taking-jurisdiction of the cause. The reason is, that no peculiar remedial pi’oeess or functions of a court of equity are required; and if under such circumstances the court were to entertain the suit, it will merely administer the same functions in the same way as a court of law would in the suit. In short, it would act as a court of law. 1 Story’s Eq., sec. 459.

The bill before us prays for an account of the note, and of the money paid by the complainants in taking it up, and of the just share to be paid by the defendants, and for payment of the same. Now it would seem manifest that it cannot be sustained as a bill for an account. There are no mutual demands between the parties, nor is any discovery sought or required in aid of the complainant’s account; if indeed it be not a misnomer to call it an account. The complainant’s demand is simply for money paid by them on a joint and several note. There are no items of account or matters of set-off involved in the controversy, and the case does not come within any of the rules allowing a bill for an account.

And it would seem to be equally clear that the bill cannot be sustained upon the ground of a trust in the defendants as the executors of Charles A. Cheever, because no special case is shown against them as such, calling for the interposition of a court of equity. The bill does not ask for any discovery and distribution of assets, so as to bring it within the English rule of a creditor’s bill. It does not charge upon the defendants any fraud or concealment of property. It does not allege any trust in them, other than what arises by implication of law from the fact of their being executors. There is nothing charged which particularly distinguishes the case from the ordinary one of a claim against an estate for contribution; and for us to- take jurisdiction of such a case in equity, on the ground merely that the defendants are executors, would be in effect to authorize the collection of all debts against an estate by a bill in equity instead of a suit at law. And we are satisfied that the statute upon which counsel rely, and which gives this court as a court of equity power to determine in cases of trust, does not contemplate the adoption of any such rule.

We think, however, that, upon the principle of general equity jurisdiction existing in this court, the bill may be sustained, if there is no valid objection on the ground of there being a complete and adequate remedy at law; for whatever doubts may have been entertained heretofore, we regard it as now settled, that this court, as a court of equity, has full chancery powers and a general equity jurisdiction; Wells v. Pierce, 7 Foster 503, 512 ; and that it will administer relief in all cases falling within equity jurisdiction, where the statutes of the State have not provided other means of redress.

But it is contended that the complainants have a complete and adequate remedy at law, and that the demurrer is well taken upon that ground. This position we will examine.

Story says that the jurisdiction now assumed in courts of law upon the subject of co-sureties, in no manner affects that originally and intrinsically belonging to equity, and that there are many cases in which the relief is more complete and effectual in equity than at law ; as, if there are several sureties, and one is insolvent and another pays the debt, he can at law recover from the other solvent sureties only the same share as he could if all were solvent. And he puts this case : If there are four sureties, and one is insolvent, a solvent surety, who pays the whole debt, can recover only one fourth part thereof, and not a third part,¥ against the other two solvent sureties ; but that in a court of equity he will be entitled to recover one third part of the debt against each of them, for in equity the insolvent’s share is apportioned among all the solvent sureties. 1 Story’s Eq., sec. 496.

But in Boardman v. Paige, 11 N. H. 431, it was decided that where there are several co-signers of a note, and one pays the whole, but before the payment some of the co-signers remove from the State, such removal is to be considered as having the same effect as if they were proved insolvent; and accordingly the party paying is not bound to seek bis remedy against those co-signers in the foreign jurisdiction, but may recover by way of contribution of each of those remaining within the State an equal share of the whole sum paid. In that case Boardman and Paige, the parties to the suit, and two others, were co-promissors on a note for $300. Judgment was obtained against Boardman by the holder of the note, for the full amount and interest, but before he paid the execution the two other signers removed from the State. Boardman then brought his action of assumpsit against Paige, and the court held that he was entitled to judgment for one half of the amount of the note. In the course of the opinion, Woods, Justice, in discussing the question of contribution, says that the rule of law rests upon an equitable foundation, and that wherever equity goes there the rule of law goes. Pie remarks, further, that the plaintiff and defendant, having presumptively derived equal benefits from the contract, were equally bound to bear its burdens, but if the plaintiff were required to seek his remedy in a foreign jurisdiction, or alone to sustain the loss without right of contribution against the defendant beyond the fourth part of the sum paid, it would be apparent that the burden would not fall equally on each.

We are not aware of any decision in this State which conflicts with Boardman v. Paige, and upon the doctrine there laid down these complainants could maintain an action at law against the defendants and obtain equitable relief. The action is not founded upon positive contract, but upon fixed principles of justice, and it may be enforced at law, although no such contract exists. Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270; 1 Story’s Com. on Eq., sec. 349.

But such cases are within original equity jurisdiction, and equitable principles have been followed in giving redress in the courts of law. This the authorities already show. And equity will not be ousted of its jurisdiction, because courts of law adopt equitable principles. Wells v. Pierce, 7 Foster 503; Sailly v. Elmore, 2 Paige 497; Mintura v. Farmer's Loan, 3 Comstock 501; King v. Baldwin, 17 Johns. 384.

Moreover, a multiplicity of suits is prevented by maintaining chancery proceedings in such cases, and this constitutes an additional reason for a court of equity to take jurisdiction. 1 Fonb. Eq., B, 1, ch. 1, sec. 3; 1 Story’s Eq., secs. 64-67; Middleton Bank v. Buss, 3 Conn. 135; Jesus College v. Bloom, 3 Atk. 262, 263.

"We think, therefore, that notwithstanding the complainants have a remedy at law, still, upon the principles and authorities stated, the bill may be entertained, and

The demurrer must consequently be overruled.