Opinion · Supreme Court of North Carolina

Jeffreys v. Yarborough

16 N.C. 506

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1830-12-15
Topic
litigation

Ruffin, Judge, after stating the case as above, pro-needed: i conceive, th it the Plaintiff caeinot proceed in (his manner. That Equity « ill subject. <h« lauds to the aneestor’<> debts is peril ciiy clear, it is one of its oldestJui-i.sdic tionsto grant discovery, and take accounts of the reales-tate. It does it as ancillary to Courts of La*, for flu* satisfaction of more legal demands. Modi more will it do so when she debt, due by its own decree, is entitled to satisfaction out of the lands, as is the case with all debts So this Suite. B«t when a person resorts to a Court oí Equity for relief, be must adopt the mode of proceeding .known to that Court.

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Cited by
1 opinion
JEFFREYSv. YARBOROUGH,16 N.C. 506(1830)
SIMON JEFFREYS v. CHARLES YARBOROUGH ET AL.
Supreme Court of North Carolina
(December Term, 1830.)
Where a decree was made for the payment of money against an administrator, and it was ascertained by the decree that he had no assets:Held(HENDERSON, C. J.,dissentiente), that asci. fa. under the act of 1784 (Rev., ch. 226), is confined to judgments at law, and that the only remedy for the plaintiff was by a bill against the heirs, to have satisfaction out of the real assets.
From FRANKLIN. This was ascire faciasissuing from this Court. The case made by it, and the decree upon which it was founded, was that Charles Yarborough made his will, and bequeathed a legacy to the plaintiff, and appointed James Yarborough his executor, who received the assets, wasted them, and died; that James also made his will, and appointed Henry Yarborough his executor, and left a considerablePage 305personal estate, which came to the hands of Henry, who wasted it, and died; that Thomas Yarborough was the administrator of Henry, and had assets only to the value of $74.14; and that David M. Lewis was the administratorde bonis nonof James, and had no assets. Upon a bill against all these parties, the accounts of the several estates, and of the plaintiff's legacy, were taken and confirmed, and a decree (507) made declaring what was due to the plaintiff, and that there were no assets in the hands of Thomas Yarborough and Lewis. The plaintiff sought satisfaction out of the real estate of Henry and James Yarborough, and, to obtain it, issued the presentscire faciasagainst their respective heirs and devisees.
RUFFIN, J., after stating the case:
I conceive that the plaintiff cannot proceed in this manner. That equity will subject the lands to the ancestor's debts is perfectly clear. It is one of its oldest jurisdictions to grant discovery and take accounts of the real estate. It does it as ancillary to courts of law, for the satisfaction of mere legal demands. Much more will it do so when the debt, due by its own decree, is entitled to satisfaction out of the lands, as is the case with all debts in this State. But when a person resorts to a court of equity for relief, he must adopt the mode of proceeding known to that court. The regular course of this Court is to proceed upon English bill, and the answer, or plea of the defendant, upon oath. Thesci. fa. is a process unknown to it, as a court of equity, unless in a few cases provided for by statute. It is a strictly common-law writ. Our act of Assembly gives it in the case of the death of a party in equity, instead of the bill of revivor. But it can be used only to revive. If any new matter is to be put in issue, or becomes material to the just decision of the cause, it must be introduced by bill, in the nature of a bill of revivor and supplemental bill.

It would be impossible for this Court to administer its justice in this method. Why should the attempt be made? It is said, because it is more simple and expeditious. I think quite the contrary. The pleadings in equity are much less technical than at common law, and leave a cause more open for a decision upon its merits. The expedition will only exist in cases not disputed. But we have a right to (508) expect cases of real litigation, in which the heirs will deny the full administration, or insolvency of the executor; others, as here, where there is a primary and a secondary liability. How are these questions to be tried? If under this process, by a jury. We know that one of the most expensive, difficult, and dangerous proceedings at law is the trial of the issue ofplene administravit. Often the parties have to come into this Court for assistance by way of discovery, before trial at law or relief from the injustice done by the verdict on that issue. The witnesses mustPage 306all be present at once before the jury. Every voucher must be then proved by a disinterested witness; and the parties cannot be called on for admissions. These reasons have raised the jurisdiction here; because accounts can be taken more correctly, at less expense, and more speedily. Should we proceed uponsci fa. until the jury had found a verdict, and then entertain a bill to correct our own injustice, as we do that of a court of law? At law, judgments are always direct and immediate, although as between some of the parties liable, there may be, in equity, an immediate and more remote liability. In pursuing this legal method, should we not be obliged to adopt the legal measure of justice? Now, it is plainly inequitable that the heirs of James should pay the plaintiff, unless they be able to get satisfaction from the heirs of Henry; because the latter received the assets of the former. Yet at law there is no such thing as successive liability. A judgment is always direct. If we are to retain our own rule of decision, why not our own methods of arriving at it, since it has the sanction of ages, is thoroughly settled, and well understood? I will mention several other inconveniences of a change. It is the rule of this Court that each party pays his own witnesses, without regard to the event of the cause. This would be ruinous in practice, upon a collateral issue between the heir and executor. It is another rule of this court that no suitor shall be concluded by one hearing; (509) but that by petition or bill of review every material point of the decree may be reconsidered and solemnly decided twice. The introduction of the jury trial abrogates this part of the course of the Court, as applied to this class of controversies; and as the case is not on paper, many of the most intricate questions, both of law and fact, must go off as atnisi prius, where the case is given to the juryviva voce;or be reexamined at the expense of a new trial, as at law. The extreme difficulty of doing justice, in a trial at law of such cases, pressed itself on the attention of the Legislature so strongly as to produce the passage of an act authorizing courts of law to refer, as to a master, matters or account of this kind. I allude to suits on the bonds of guardians and administrators. Surely, then, this Court, when it may safely act in its ancient and accustomed mode, ought not to yield up its distinguishing characteristic, which constitutes its real value to the country, and adopt that of the common law, the inadequacy of which to the ends of justice created this jurisdiction and continues its existence.

I have supposed that the facts put in issue upon this legal writ are to be tried by a jury. If this be not so, but the defenses are to be made and the facts ascertained, according to the course of this Court, by plea and answer on oath, and reference to the master, then plainly there is no saving of time or expense, or any change but that of substituting asci.fa. for a bill as the means of instituting the suit against the heir.Page 307Why do that? What advantageth it? I object to a change that is to do no good, unless required by law. I object to it, also, because it is an indirect method of giving this Court original jurisdiction, not contemplated by the Legislature. I admit we must do it if the Legislature so enacts. It is to be hoped it never will. I think it never has. The act of 1784 (Rev., ch. 226) is expressly confined to "suits at law," and the defenses are all legal, and to be tried according to the course of the common law. The act of 1807 (Rev., ch. 716) is plainly (510)in pari materia, and confined also to suits at law. And the express declaration in the last section is that the provisions in that act shall not affect the remedy which any creditor has in equity against the real estate of a deceased debtor, or in any manner change rules of decision in equity in any such case. The second section of the act of 1787 (Rev., ch. 278) has been urged as giving this remedy. After reciting that the mode of carrying into effect decrees in chancery was by processin personam, it enacts that upon decrees for sums of money the party may issue execution against the defendant's body or estate, and that the estate shall be bound in the same manner as it is by judgment and executions at law. I take this to mean simply that there shall be execution in equity, and to declare its lien — what shall be bound and sold under it. But it does not profess to prescribe a method by which the decree may originally be had, nor by which, after obtaining it against one person, you may execute it against another. But if there were a doubt upon this, it is removed by the cautions proviso of the subsequent act of 1807.

I am confident that the justice of this Court can only be administered by adhering to the mode of proceeding which is peculiar to it; and I must oppose as strenuously innovations upon it as upon that of the common law. Each is best in its appropriate sphere. I think this writ must be quashed, and the plaintiff put to his bill.
HENDERSON, C. J.,dissentiente:I do not concur in the opinion that thescire faciasshould be quashed. And the process of reasoning by which I arrive at the opposite conclusion is very simple, and to me very conclusive. But I say this with great deference. By the act of 1784 (Rev., ch. 226), after reciting that doubts were entertained whether the real estate of deceased debtors, in the hands of their (511) heirs or devisees, should be subject to the payment of debts upon judgments against the executors or administrators, in order to remove such doubts it was enacted (in the second section) that in all suits at law wherein the executors or administrators of any deceased person shall plead fully administered, no assets, or not sufficient assets to satisfy the plaintiff's demand, and such plea shall be found in favor of thePage 308defendant, the plaintiff may proceed to ascertain the demand, and sign judgment. But before taking out execution against the real estate of the deceased debtor, a writ or writs ofscire faciasshall issue, summoning the respective heirs and devisees of such deceased debtor to show cause why execution should not issue against the real estate of such deceased debtor for the amount of such judgment. And if judgment shall pass against the heirs or devisees, execution shall and may issue against the real estate of such debtor in the hands of such heirs and devisees. The third and fourth sections are on subjects foreign to this point. The fifth section gives the heir or devisee the right of contesting the plea of fully administered, though found for the executor or administrator on the trial between the creditor and executor or administrator, and points out the manner of making up the issue, and the course to be pursued if found for the heir or devisee. Another act, that of 1807 (Rev., ch. 716), points out what is to be done when there are really no assets, and an insolvent executor or administrator omits or refuses to plead fully administered.

It is to be observed that in this act the personal representative is to contest the creditor's right of recovery. When that right had been settled in contest between him and the creditor, and in favor of the creditor, that question is put to rest as to all persons, whether heirs or devisees, who have the dead man's land (saving, I presume, (512) recoveries effected by a fraudulent combination between the creditor and executor or administrator). The only question to be tried and investigated, when the heir or devisee is called on, is that of the administration of the personal assets; for although the heir or devisee is bound as to the question, debt or no debt, and all other questions arising in the cause, the, Legislature did not conclude them as to that point, but permitted them to contest it with the executor or administrator, as a cause, not why judgment should not be rendered against them for the debt, but why execution should not issue, not against them, but against the lands and tenements of the deceased debtor in their hands. The debt, except in cases of fraud, is conclusively fixed on the estate, by the trial between the creditor and executor or administrator. The heirs' or devisees' only defense is, not against a judgment against them, for none is prayed; nor against an execution against them, for none is prayed. I say, their only defense against an execution to sell the land in their hands is that there is or was a sufficiency of personal estate to satisfy the debt. It is admitted that this act did not give asci. fa. upon a decree in the court of equity; its words are confined to judgments at law. At this time courts of equity enforced their decrees by other process, and could not issue either afieri faciasorcapias ad satisfaciendum. But the courts of equity were authorized and directedPage 309to issue these writs by a subsequent act. By the act of 1787 (Rev., ch. 278, sec. 2) it was declared that the mode of proceeding then used to carry into effect the decrees of a court of equity by attachments,habeascorpusattachment with proclamations, and commissions of rebellion, are in many cases dilatory, oppressive, and inadequate, and it was enacted that in all cases where decrees might have been made in any suit in equity in any of the courts of this State, or should hereafter be made, for any sum or sums of money, it should be lawful for execution to issue against the defendant's body, or against his goods and (513) chattels, lands and tenements, to satisfy such decree and costs (and the goods and chattels, lands and tenements, shall be bound by such decree and execution in the same manner as goods and chattels, lands and tenements, are bound by judgments and executions at law), in the same manner as executions shall issue in the courts of law. This act gives the same execution on decrees to pay money as are given at law. If so, execution shall issue against the lands and tenements of the deceased debtor; for it did so at law. But ascire faciasshall first issue to the heirs or devisees to show cause why such execution shall not issue. Without this exposition of this act, the same remedy is not given to enforce decrees in equity as is given to enforce judgments at law. The lands of the debtor were liable, by an old statute passed in the reign of George II. Our court law enforced the same right. It gave thefieri faciasagainst lands and tenements. The act of 1784 declares it to be doubtful whether execution should issue against the lands and tenements of deceased debtors in the hands of the heirs or devisees, and that in certain cases it shall, and directs that ascire faciasshall first issue to the heirs or devisees, and points out what grounds they may take to protect the lands in their hands from the execution on the judgment against the executor or administrator. The act of 1787 gave such execution on decrees of the court of equity for money against the goods and chattels, lands and tenements of the debtor as was given by law; that is, by prior acts. The act of George II and our act of 1777 (Rev., ch. 115) gave it against the lands of the debtor, and the act of 1784 cleared away the doubt whether execution should issue against the lands in the hands of the heirs or devisees, in certain cases, but prescribes that a notice orscire faciasshall first issue to them to show cause against it. If the act of 1787 only extended the act of George II and the act of 1777 as to (514) equity decrees, then the same doubt would exist which existed prior to the act of 1784, and we would have now to debate whether lands in the hands of the heir or devisee could be sold under a decree against the executor or administrator. I think no such doubt exists. The execution against the lands is given upon a decree, as it is at law, explained as it is by the act of 1784. I enter not into the discussion, whichPage 310is the easiest and most convenient mode, by bill or byscire facias. That rests with the present plaintiffs. And as to a bill being more congenial to equity rules and equity practice, that was a question for the Legislature. But I confess I agree both with the plaintiffs and the Legislature, that ascire faciasis the most easy and convenient. The only question which can arise in thescire facias, viz., the administration of the personal assets, does not require the modes prescribed in the court of chancery, by English bill. As to the questions of prior and posterior liabilities, that is settled by the decree. When they arise, it will be more proper to examine into it. But the creditor, having obtained his decree against the executor of his debtor, asks for an execution against his debtor's land, and calls on the heirs and devisees to show cause, if any they have, why he should not have it. As to the argument, that this Court is better qualified to examine the administration of the personal assets than a court of law, if that fact is put in issue, we will examine the fact our own way. If a bill was brought to carry the decree into execution, if that be the only way, and resorted to from necessity and not from choice, I suppose, since the act of 1787, no defense could be made except that given by the act of 1784 to the heirs and devisees on thescire facias. If the bill be not the only remedy, but resorted to through choice, equity might say, You have no merits, from some cause peculiar to the plaintiffs, and refuse to move.

(515) In addition to all this, I believe the practice since 1787 has been to proceed, in similar cases, byscire facias.

The argument, when summed up, is this: The act of George II and our act of 1777 gave thefi. fa. against the lands of the debtor in his own hands. The act of 1784 gave thefi. fa. against the lands of a deceased debtor in the hands of his heir or devisee, upon a judgment against his executor or administrator, in certain cases, but prescribed ascire faciasagainst the heirs and devisees. When these acts were passed, no process to sell property, or against property, issued to satisfy decrees in the court of equity. The process wasin personam. The act of 1787 declares that where there shall be any decree for money in a court of equity, execution may issue thereon against the defendant's body, or against his goods and chattels, lands and tenements, to satisfy such decree, in the same manner as executions shall or may issue in the courts of law.

It follows that as by the statutes of George II and of 1777 execution might issue against the lands of the debtor in his own hands to satisfy a judgment at law, so an execution might issue against the lands of the debtor in his own hands to satisfy a decree in the court of equity; for by the act of 1787, execution shall issue in the same manner as in the courts of law. And as by the act of 1784 execution may issue against the lands of the deceased debtor in the hands of the heir or devisee to satisfyPage 311a judgment obtained against an executor or administrator in certain cases, so in like cases an execution may issue against the lands of the deceased debtor in the hands of his heir or devisee to satisfy a decree of a court of equity against the executor or administrator; for, as was said before, the act of 1787 declares that execution may issue thereon (decrees in a court of equity) against the defendant's lands to satisfy such decree in the same manner as such executions may issue in the courts of law. The act of 1784 prescribes thesci. fa. to the heirs and devisees, upon a judgment at law against an executor or administrator. It must be founded in a similar case on a decree (516) in equity; for execution is to issue in the same manner as in a court of law. The same argument which would prove that afi. fa. could not issue against the lands of a deceased debtor in the hands of his heir or devisee, upon a decree for money, would prove that afi. fa. could not issue against the lands of the debtor in his own hands, upon a similar decree against him.

I very much regret this difference of opinion, but entertaining doubts, I could not do otherwise than express mine.

PER CURIAM.Scire faciasquashed.Cited: White v. Albertson,14 N.C. 242;Newson v. Newsom,26 N.C. 388.