Brewis v. Lawson

• Decision Date: 08 December 1881
• Parties: BREWIS AND ALS. v. LAWSON AND ALS.
• Court: Virginia Supreme Court

76 Va. 36

BREWIS AND ALS. v. LAWSON AND ALS.

Supreme Court of Appeals of Virginia.

December 8, 1881

Appeal from decree of corporation court of Alexandria, in suit of Anthony Lawson against R. M. Lawson, administrator d. b. n c. t. a. of John Lawson, deceased, Robert Brewis, William Brewis, James Brewis Davidson, John Smith, and Mary, his wife, Thomas Davidson, Joseph Henry Taylor, and Margaret Jane Davidson, and Elizabeth Davidson.

John Lawson died in 1851 testate, leaving a widow, and giving his whole estate to his two nephews--Anthony Lawson, the plaintiff, and Thomas Anthony Brewis. The latter qualified as executor. The executor paid all the debts except the plaintiff's claim, and divided the entire remainder except what had been assigned as dower to the widow; and to subject the reversion of her dower is the object of this suit. Brewis, the executor, died intestate and without issue in 1870, without having made a final settlement of his administration. In 1871, Robert M. Lawson, son of Anthony qualified as administrator d. b. n. c. t. a. of John Lawson deceased. In August, 1873, Anthony Lawson obtained judgment against the administrator by default on a bond dated 6th January, 1849, for $1,800, payable on demand by the testator. A credit of $400 endorsed on the bond was overlooked by the clerk in entering the judgment. This suit was brought in November, 1873, by Anthony Lawson to enforce the judgment by a sale, subject to the dower, of the property which had been assigned for life to the widow, Isabella Lawson. The court below, after proper accounts, deducted the war interest, allowed the $400 credit on the judgment, directed a small amount in the hands of the administrator to be paid on the judgment, and decreed the sale of the reversion in the dower to satisfy the balance. The heirs of Thomas A. Brewis, deceased, defended the suit, and in their answer set out the bond whereon the judgment was founded, extended their defence to it by pleading the statute of limitations and presumption of payment, and charged collusion between the plaintiff and the administrator. No such collusion was proved. Two letters from Thomas A. Brewis to the plaintiff were produced--one dated January 1st, 1859, and the other January 14th, 1870--in which this debt was referred to as unpaid. From this decree the heirs of Thomas A. Brewis appealed.

Meredith & Cocke, for the appellants.

1. A suit against heirs to subject realty in their hands cannot be brought upon a judgment obtained against the personal representative. Defendants below moved to dismiss the bill for want of equity, and this is equivalent to a demurrer. The only allegation of indebtedness is the judgment, and the only prayer is that the property assigned the widow be sold, subject to her life estate, to pay the judgment and costs aforesaid.

The proof of indebtedness should be confined to the allegation. The allegata and the probata should correspond. This is a primary rule. See Mason, & c. v. Peters, 1 Munf. 445-6; Angell on Limitations, 6 Ed., § 263, quoting the language of Chancellor Kent in 6 John. ch. 373-4; Harwood v. Rawling's Heirs, 4 Har. & John. 126; 41 Miss. 38-48; 4 Har. & John. p. 270; 5 Gill & J. 433; 2 Barb. Ch. pp. 392-3; 32 Penn. St. 259; 2 Hill Ch. p. 261; Martin & Yerger (Tenn.), 353; see, also, Ch. J. Marshall in Alston v. Munford, 1 Brock. p. 266, and Judge Joynes in Robertson v. Wright, & c. 17 Gratt. 540.

2. The judgment, as obtained, ought not to stand against the heirs. The administrator should have defended the action, and left it to a jury to say whether laches or lapse of time would not have barred the claim (see Booker, & c. v. Booker, & c., 29 Gratt. 605); and further, to say whether the statute of limitations, if pleaded, would have been a bar. The bond was made 6th January, 1849. The statute ran from January 7, 1849, to April 11, 1861-- twelve years, two months, twenty-four days. It ran from July 1, 1861, to April 5, 1865--three years, nine months, four days; because during that period Anthony Lawson and Thomas A. Brewis, the executor, both lived under the Wheeling or the Alexandria governments, and there was nothing to prevent him from suing on the bond; and it ran from January 1, 1869, to August 12, 1873-- four years, six months and twelve days--in all, twenty years, six months and ten days.

The letters of Mr. Brewis would not have the effect of vitiating the plea of the statute. They spoke of a note. This is a bond. He spoke of settling the note. He did not promise payment. Aylett v. Robinson, 9 Leigh 45; 6 Ga. p. 30; 23 Conn. 453. The administrator ought to have plead the statute. See Anderson, J., in Seig v. Acord, & c., 21 Gratt. 369.

John M. Johnson, C. W. Wattles, for the appellees.

1. The first assignment of error may be well taken, but it is immaterial whether it is or not. The bill might have been demurrable, but it was not demurred to. Appellants answered it, admitted the existence of the bond, and filed a copy as an exhibit; and that answer cured the defect, and made it a bill to enforce the payment of John Lawson's bond out of the real estate whereof he died possessed. The heirs made all possible defences.

2. The bond was not barred when the action at law was brought by about four years, deducting the period of the war and of the stay-law. Pugh v. Russell, 27 Gratt. 800.

3. If it had been barred, the two letters of Mr. Brewis, who was executor, legatee, and devisee of John Lawson, would have taken it out of the statute. Brewis would have been bound by his letters, and certainly his heirs claiming under him are also bound.

4. There is no proof of collusion or fraud.

OPINION

BURKS, J.

A judgment (by default at least) against a personal representative in a suit to which the heirs or devisees of the decedent are not parties, is not evidence against such heirs or devisees in a suit or proceeding by the creditor to subject the real estate, descended or devised, to the payment of the debt; and the reason assigned is, that there is no privity between the representative and such heirs or devisees. It was so held by this court at an early day (1810) in Mason's Devisees v. Peter's Adm'r, 1 Munf. 437, and the decision has been since repeatedly recognized as authority. See Foster, & c. v. Crenshaw's Ex'ors, 3 Munf. 520; Chamberlayne, & c. v. Temple, 2 Rand. 384, 396; Shield's Adm'r v. Anderson's Ad'mr, 3 Leigh 729, 736; Street's Heirs v. Street, 11 Leigh 498, 508; Robertson and others v. Wright and others, 17 Gratt. 534, 540. And Chief-Justice Marshall, in delivering the opinion of the supreme court in Deneale v. Stump's Ex'ors, 8 Peters 531, said: " It is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them. It could not be given in evidence against them. The same principle has been affirmed by the courts of other States. See Harwood v. Rawling's Heirs, 4 Har. & Johns; Davis v. Green, Id. 270; Birely & Holtz v. Staley, 5 Gill & J. 432, 453; Sargent and others v. Davis, 3 La.Ann. 353, 354; McCoy, Adm'r v. Nichols and others, 4 How. (Miss.), 31, 38; Osgood v. Manhattan Co., 3 Cowen 612, 622; Boykin v. Cook, 61 Ala. 472.

The act of 1849 (Code of 1873, ch. 127, § 3) does not, we think, alter the rule. It makes real estate descended or devised (not charged by the will with debts) legal assets in the hands of the heirs and devisees; but there would seem to be the same lack of privity, now as before, between the personal representative and the heir or devisee.

The rule certainly applies to a judgment by default. Whether it extends to a recovery had after a full and fair defence by the personal representative need not be decided in the present case. We prefer not to determine that question until a case arises in which the decision becomes necessary. The judgment in the case now before us is a judgment by default.

In Chamberlayne, & c. v. Temple, 2 Rand. 384, 396, Judge Green observed, that " in all cases where the question is, whether a person be a debtor or not, a judgment against him or his legal representative seems to be prima facie evidence of the fact, liable to be controverted upon the ground of fraud, or upon any other just ground, by any one a stranger to the judgment; except, perhaps, in the case of the real and personal representatives of the same person, in which case either the one or the other might have been sued in the first instance. " See, also, the remarks of Chief-Justice Marshall in Garnett, & c. v. Macon and others, 6 Call. 337, 338.

In Pennsylvania a judgment against the personal representative seems to be regarded as prima facie evidence against the heir or devisee in a proceeding to subject the real estate. and in regard to adversary judgments, what is said by the supreme court of that State in Sargent's Heirs v. Ewing (decided in 1860), 36 Penn. St. 156, 160, abounds in good sense. " To hold," say the court, " that the creditor who has, after a severe and prolonged contest, established his right to satisfaction out of the personal assets, but finds in the end that they are insufficient for the purpose, and that he must enter de novo into the same contest with the heirs; must produce anew his proofs and witnesses, perhaps scattered and lost sight of, under the expectation that they would never be needed again, is something in practice which has not been thought necessary for the last twenty years at least." See, also, Steele v. Lineberger and others, 59 Penn. St. 308; Freeman on Judgments (3d Ed.), § 163.

The inconvenience and apparent hardship of the rule, as it is understood in Virginia, may generally be obviated. In most cases, certainly in cases of liquidated demands and where there is a known deficiency of personal estate, the...