Caldwell v. Montgomery

• Decision Date: 31 January 1850
• Docket Number: No. 17.,17.
• Parties: John Caldwell, plaintiff in error. vs. Seaborn Montgomery and wife, defendants in error.
• Court: Georgia Supreme Court

8 Ga. 106

John Caldwell, plaintiff in error. vs. Seaborn Montgomery and wife, defendants in error.

No. 17.

Supreme Court of the State of Georgia

JANUARY TERM, 1850.

In Equity, in Sumter Superior Court. Decision on demurrer, by Judge Warren, November Term, 1849.

The bill, in this cause, filed by John Caldwell, 18th April, 1849, charged, that on 7th May, 1837, one Thomas S. Tondee, then of Walker County, sold to Caldwell a tract of land lying in Walker County, for $400, and gave a bond for titles—binding himself, his heirs, executors, &c. to make good warranty titles to the land by 1st December, 18S7; that about the 5th December, 1837, Tondee, fraudulently professing to act as attorney for one John L. Grayson, an infant, made a deed to the land, having no written authority so to do; that in 18— Tondee died,, without ever having paid the money stipulated in the bond, or made the titles to the land, as he was bound to do; that his widow, Julia Tondee, his only heir, became administratrix on the estate, and after paying other debts, turned over to herself, as sole distributee, the balance of the estate, and obtained letters of dismission.

The bill further charged, that in 1838, John L. Grayson having arrived at age, disaffirmed the unauthorized agency of Tondee, and executed a deed to his interest in the tract of land, to one John G. Blanc, for $200, and " said Blanc, on 1st January, 1845, made a deed to complainant."

The bill further charged, that the widow, Julia Tondee, subsequently intermarried with Seaborn Montgomery, and as a reason for the delay in instituting the suit, that complainant lived in Walker, and Tondee had removed to Sumter, and that complainant had heard that the estate of Tondee was insolvent, and that he was ignorant, until recently, of the residence of his widow.

The prayer was for a decree for two hundred dollars, with interest from the date of the contract, and for general relief.

To this bill, a demurrer was filed, on the grounds—

1st. That the bill did not make a proper case for the interposition of a Court of Equity.

2d. That the complainant was barred by the lapse of time and his own laches.

The Court sustained the demurrer, and this decision is assigned for error.

E. R. Brown, for plaintiff in error, cited—

Miller vs. Mc In tyre, 6 Pet. R. 61. Graig vs. Summerville, 4 Cond. E. Ch. Rep. 453. Gillespie vs. Alexander, 3 Ib. 326. David vs. Trowd 7 Ib. 4. Ayres vs, Wilson, 1 Doug. 385. Waters vs. Ogden, Ib. 452. Alder vs. Chip, 2 Burr. 756. Cholmley vs. Paxton, 3 Bingh. 1.

B. Hill, (representing King,) for defendant, cited—

2 Greenl. Ev. §357. 4 Kent, 404, and references. Story's Eq. Pl. §§484, 814. Trip vs. Talbrid, 1 Hill Ch. Rep. 145. aikin vs. Hill, adm'r. 7 Ga. Rep. 573.

By the Court. —Nisbet, J. delivering the opinion.

Two questions were made upon this bill, before Judge Warren, in the Court below, by demurrer—

1. Whether the complainant was not barred by the Statute of Limitations; and

2. Whether there is equity in the case made.

The Court below held that there is no equity in the bill, and that the complainant is barred by lapse of time.

Upon the argument before us, some question was made, as to the right of a defendant in Equity, to avail himself of the Statute of Limitations, upon demurrer. It is proper, therefore, briefly to notice that question. Courts of Equity act upon the analogy of the law as to the Statute of Limitations, and will not entertain a suit for relief, if it would be barred at Law. Although it may be conceded—for it is true—that the Statute does not, in terms, apply to Courts of Equity, yet the principles upon which it is a bar, apply equally to parties in Equity, and parties at Law. It may be therefore stated to be well settled, that in all cases, where, at Law, the Statute would be a bar, it is the law of the Courts of Chancery. This being conceded, the question is, how is the Statute available in Equity 1 Is it available on demurrer, or must it be pleaded 1 Lord Redesdale, in his text, says that length of time has been considered as no defence, though apparent on the face of the bill, without any circumstance slated to avoid it by demurrer; and there is but little doubt, but that up to the time of his writing his treatise, it had been generally so held. He, himself, however, held differently afterwards, in Hovenden vs. Annesly, 2 Sch, if Lefr. 636 to 638. It is now well settled, that if the lapse of the period of limitation appear with certainty on the bill, and there is nothing stated to avoid it, the objectionmay be taken by demurrer. Story\'s Eq. Plead. §§484, 503, 751, and notes. Foster vs. Hodgson, 19 Vesey, 179. Hoan vs. Peck, 6 Sim R. 51. Miff. Eq. Plead. by Jeremy, 212, note c. Stackhouse vs. Barnslow, 10 Vesey, 460 to 470. Aggas vs. Pickerell, 3 Atk. 225. Hardy vs. Rcen. 4 Vesey, 470. Deloraine vs. Browne, 3 Bro. Ch. R. 633, and notes. Wisner vs. Bernett, 4 Wash. C.C. R. 631. See also 3 M. & V. 499. 3 Younge & Cll 266. 7 Paige, 195, and Ib. 373. 5 Jokns, Ch. R. 521. 5 Madd. R 328.

To a just consideration of the question of the Statute of Limitations, it is necessary to determine what is the character of the demand sought to be enforced by this bill. It is founded on the breach of a bond for titles, conditioned that warranty title shall be executed by the obligor to the complainant, at a specified time, to a tract of land. The bill avers a breach; that the obligor died intestate; that his widow administered on his estate, paid the debts, delivered to herself and appropriated as sole heir and distributee, the effects of the estate, and was dismissed by the Ordinary; and that she intermarried with Montgomery, who, with her, is a party defendant. The prayer is for discovery, and a decree that the defendants pay two hundred dollars, with interest, from the maturity of the bond, as damage sustained by its breach. It is, in short, a bill to follow and apply the estate of a decedent, in the hands of a distributee, to the payment of a debt due, as damages for the breach of a bond. We hold it a debt due by bond, and not, as argued, a demand due upon open account. It is a specialty debt, and would rank as such in the payment of debts by an administrator. And to this point, see Davis and others vs. Smith and...