Rosborough v. Mills , 35 S.C. 578 ( 1892 )

The opinion of the court was delivered by

Mr. Justice Pope.

On the 28th day of February, 1885, Julius Mills made his note payable to B. E. Kell for six hundred dollars. To this note J. J. Stringfellow and William H. Rosborough were his sureties. This note was afterwards duly assigned to J. L. Agurs. Julius Mills, intending to secure his sureties against any loss on account of said note, gave them a mortgage, second in rank, on some of his real estate. Julius Mills having died, his widow, the defendant, Patience Mills, duly administered. The estate of her intestate being insolvent, this administratrix, as plaintiff, instituted her action in Lancaster County to marshal the assets of the estate of her intestate and for an accounting by her of her trust. To this suit the said J. J. Stringfellow and William H. Rosborough were made parties defendant, by reason of their holding the mortgage on certain lands of the intestate. In this suit J. L. Agurs proved the aforesaid note. The administratrix fully and fairly accounted for all the assets of her husband’s estate. J. L. Agurs received nothing on this note, nor did the mortgage held by Stringfellow and Rosborough afford them the least protection as sureties. The judgment in favor of creditors was never enrolled, but the action was marked ended and stricken from the dockets of the Court of Common Pleas for Lancaster County. After the suit had terminated in Lancaster County, on the 7th November, 1890, J. J. Stringfellow paid to J. L. Agurs the debt and interest due upon the note of Julius Mills to B. E. Kell, which had been assigned to J. L. Agurs. Thereupon, on 7th February, 1891, J. J. String-fellow brought his action against William H. Rosborough for contribution as co-surety on said note, and after judgment therefor, to wit, 4 May, 1891, the said William II. Rosborough paid him $505.97, one-half of debt and interest and costs.

William H. Rosborough, as plaintiff, began this action in the Court of Common Pleas for Chester County against the defendant, Patience Mills, as, administratrix, &c., of Julius Mills, deceased, to recover this $505.97 and costs paid by him as contribution as co-surety on said note. The defendant answered, virtually admitting or setting up the foregoing facts, and claiming that inasmuch as J. L. Agurs had presented said note in the action she filed in Lancaster and his rights ripened thereunder, the plaintiff was not entitled to maintain this action, and that she had fully accounted then. The hearing was had on the pleadings and an agreed statement of facts by Judge Hudson, who dismissed the plaintiff’s complaint.

From this judgment the plaintiff now appeals to this court on four grounds, namely :

1. Because the case of John J. Stringfellow v. William H. Rosborough was an entirely new cause of action, disconnected with the case of Patience A. Mills, administratrix of estate of Julius Mills, v. Minnie Mills and others, in Lancaster; that said first named cause was for a contribution of one-half of the debt proved in the last named case, purchased by J. J. Stringfellow from J. L. Agurs, and recovery had against this defendant for said one-half, and his honor erred in finding to the contrary.

2. Because the present action arose upon an entirely new cause of action ; that is, a surety who has paid the debt of his principal, and no right of action accrued to this appellant against the administratrix until the former as co-surety had paid the debt.

3. That the defence set up by the administratrix, although inaptly and untechnically plead, amounts to the plea ofplene administravit, and such defence being admitted, the plaintiff herein was entitled to judgment guando aaaiderint, and his honor erred in not so finding as matter of law.

4.' That his honor erred in finding that this court had no jurisdiction of the cause and in dismissing the complaint.

1 We think the Circuit Judge was in error in this case. Unquestionably until long after the termination of the case in Lancaster brought by the administratrix to marshal the estate of her intestate and to settle her accounts, this plaintiff had no cause of action against the estate of which the defendant was the personal representative; he could not have sued until after the 4th May, 1891, and at this time there was no suit pending in Lancaster; it had been ended nearly two years, and had fixed by the judgment then rendered, that the administratrix had fully accounted for all the assets of the estate of her intestate received up to that date. Now, when this administratrix is again brought into court on an action relating to such of her intestate’s estate as came into her hands at any time prior to the decree in the Lancaster case, she would simply plead that judgment, and so far as any inquiry touching the administration of the assets of her intestate estate up to that time was concerned, that would be a complete answer. But it sometimes happens that other assets may come into the hands of such administratrix after a full accounting has been already had, and in such case, if such administratrix has not been discharged by law from the duties of her office after such .accounting has been had, or in case she has not received a formal order dismissing her from such office after such accounting has been had at a period early enough to allow the statute of limitations to ripen as a defence, she must answer the complaint, pleading plene administravit. When she does this, as by the testimony here adduced she is fully entitled to do, the plaintiff should have a judgment against her guando aoeiderint; when he takes such judgment he admits that the defendant has fully administered to the time of such judgment. 2 Tidd Pract., 1017. The judgment guando aoeiderint will only apply to assets of her intestate that she may acquire after such judgment.

We cannot admit that the court in this case was without jurisdiction. It is certain that the case heard in Lancaster could only have bound J. L. Agurs as to any rights he might have had against intestate’s estate. He received the money on his note, not as the result of such action, but from the sureties of Mills, the intestate. It will be admitted that such sureties had no cause of action against the estate of Mills until after his estate was settled. A legal or equitable right does not exist without a remedy at law or in equity for its redress.

From these considerations it follows that the judgment below must be reversed and a new trial ordered.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and a new trial granted.