Burts v. Duncan

Walker, J.

By the Act of December, 1847, Cobb’s Dig., p. 569, it is provided that nothing in the fifth section of the statute of limitations shall be so construed as to protect any defendant or defendants, from any action at any time, where the jury are satisfied that there has been a fraudulent removal or concealment of the property, in order to deprive the rightful owner of the possession or enjoyment of the same, any law, usage or custom to the contrary notwithstanding. This statute was in force at the time the possession of Duncan began, in 1851; and according to its provisions, Duncan could not be protected from “any action at any time” where there had been (no matter by whom) “a fraudulent removal or concealment of the property in order to deprive the rightful owner of the possession or enjoyment of the same.” Do not the facts bring this case fully within the provisions of this statute ? We think so.

By the 21st section of the Act of 1856, pamph., p. 235, it is provided that when the right to sue shall not accrue until after the death of any person, the time within which suit is to be brought, under the provisions of this act, shall not begin to be computed until there is representation upon his estate: Provided, that in each of these cases (named in the section) there be representation by an executor or administrator duly qualified within five years from the death. Section 22 provides that where personal property shall be carried away or secreted, so that the party entitled to sue for the same, knows not who is in possession of it, or where it is, or against whom to bring his suit, the limitation of time in which suit, for the recovery of personal property are to be brought by the provisions of this act, shall not begin to be computed against such party until he has discovered where such property is, and who is in possession of it. Ib.

This act went into effect the first of June, 1856, ib. 237; and this action was brought 24th April, 1860, less than four years from the time the act went into operation. Now, by the act of 1847, Duncan was liable to suit “at any time,” if there had been a fraudulent removal of the property in order to prevent the rightful owner from enjoying the same. In such a state of facts, the statute of limitations did not begin to run. It could not begin to run until the 1st June, 1856, and four years had not elapsed from that date until suit was commenced; and under the act of 1856, ought there not to be five years in -which representation of the estate should be taken out before the statute should begin to run? Such would seem to be a reasonable interpretation of its provisions. Secs. 2877 and 2880, Rev. Code, is in substance both the acts of 1847 and 1856. See also Sec. 2646. So that taking all our statutes on the subject together, we think, under the facts of this case, the defendant was not protected by the statute of limitations; and the charge of the Court on that subject was erroneous.

The defendant in error insisted that the legal title was in Turner, the executor, and not in the Georgia administrator, and therefore, the plaintiff could not recover. Admitting the title to have been in Turner, we have shown that under the aci of 1847, Duncan would not have been protected by the statute of limitations, because the property had been fraudulently removed. But Turner could not maintain an action in Georgia as executor, to recover these negroes. In Davis vs. Smith, 5th Ga. Rep., 295-6, this Court says: “An administrator or an executor derives his authority from his letters of administration or testamentary. As such, he has no power beyond the limits of the State by whose authority he is invested with the trust. He cannot sue, therefore, nor can he be sued in any other State. If it becomes necessary to sue in behalf of the estate which he represents, in a foreign State, he must obtain letters of administration in that State, according to the provisions of the law of that State.” Citing quite a number of authorities. Again, in the S. W. R. R. Co., vs. Paulk, 24 Ga. Rep., 370, the Court says: “ It is a general doctrine of the common-law, recognized both in England and America, that no suit can be maintained or brought by any executor or administrator, in his official capacity, in the courts of any other country except that from which he derives his authority. The authorities upon , this point are exceedingly numerous and conclusive.” Citing quite a number, and add, “ See this point strongly staled by this Court, 5th Ga. Rep., 295, 296.” This case was a construction of the act of 1850, Cobb’s Dig., 341, and was adverse to a foreign administrator’s right to sue in a case like this. The rule seems to have been changed and enlarged by the Rev. Code, Secs. 2573 and 2414.

We do not mean to decide that under the facts of this case the defendant is liable for the value of these negroes. We recognize the rule as laid down in the Code, Sec. 3023, that “The death or destruction, or material injury to the property pending the litigation, shall be no defence to a mere wrong doer. If the defendant is a bona fide claimant, and the injury arises from the act of God, and in no wise the result of defendant’s conduct, the jury may take the same into consideration, but in no case shall such a Court cast the costs upon the plaintiff.” In this case, the jury “ cast the costs upon the plaintiff.” Under the facts of the case, we hold that the defendant was not protected by the statute of limitations; and no other defence is shown sufficient to defeat the legal title shown in the plaintiff If the property had been destroyed by the act of God, the vis major pending the litigation, and the defendant is a bona jide claimant, as he seems to be, the jury may take the same into consideration, but they cannot, on this account, make the plaintiff pay the costs. I am inclined to think that a verdict finding the costs in favor of the plaintiff would have been sustained. This question is not before us now however.

Judgment reversed.