Carter v. Hampton's Adm'rs

• Citation: 77 Va. 631
• Parties: CARTER v. HAMPTON'S ADM'RS AND HEIRS.
• Decision Date: 26 July 1883
• Court: Supreme Court of Virginia

77 Va. 631

CARTER v. HAMPTON'S ADM'RS AND HEIRS.

Supreme Court of Appeals of Virginia.

July 26, 1883

Appeal from decree of circuit court of Grayson county, rendered 4th October, 1881, in the cause of Thomas W. Carter, plaintiff against the administrators and heirs of Griggs Hampton deceased, defendants. Ezra Nuckolls and seven others executed on 8th August, 1854, their bond for twenty-three hundred dollars, payable with interest from 27th December, 1852, to Griggs Hampton, on or before 27th December, 1862. Griggs Hampton and his son, Andrew Hampton, on 1st November, 1856 for value, by writing under seal, assigned this bond to Thomas W. Carter, and guaranteed the payment thereof without plea or offset whether suit was brought for the collection of the same, or not. Judgment was obtained on the bond, and execution issued and returned " " no property." Griggs Hampton having died, Andrew surviving in February, 1880, Carter brought his bill against the decedent's administrators and heirs, praying for a discovery of real and personal assets and an account of the administration, and the subjection of the assets to pay the amount due him on said guaranty, whereon some unascertained sums had been collected from the obligors in the bond. The defendants demurred to the bill, and filed an answer, which they prayed should be treated as a cross-bill, which Carter in turn answered. At the hearing the circuit court sustained the demurrer on the ground that plaintiff had an adequate remedy at law, and dismissed the bill with costs. From this decree Carter obtained from one of the judges of this court an appeal.

Robert Crocket, for the appellant.

In this case we have the common bill of a creditor brought against a decedent for the purpose of administering the assets of decedent, and of having the same applied to the payment of the debt due the creditor.

The bill prays for a discovery of both personal and real assets of the decedent, and also for accounts showing what disposition has been made of the same.

The bill may be regarded as brought by the creditor alone, or for himself and the other creditors.

There is nothing more required in a creditor's bill, and it is hard to conceive what more could be incorporated in it. Adams' Equity, page 257 (side); 1 Story's Equity Jurisprudence, sections 546-7; 1 Spence's Equity Jurisprudence, page 579; Duerson v. Alsop, 27 Gratt. 229.

But it is objected that equity has no jurisdiction of this case, because one of the joint guarantors is dead, and the other surviving; that the appellant had a complete and adequate remedy at law against the surviving guarantor.

There might be some show of reason for this objection were it not for section thirteen, chapter one hundred and forty-one, Code 1873; for at common law, death of one of several joint obligors discharged his estate even in equity unless he were the principal debtor, and the rest his sureties. But this law is changed by the statute above cited. 2 Minor's Institute, 751.

It is respectfully submitted in this case that the appellant had a double remedy--the one in equity against the real and personal representatives of Griggs Hampton, deceased, and the other at law against Andrew Hampton (Griggs and Andrew being the two joint guarantors); for no principle of law is more firmly established than that a creditor having two different securities, or two sets of obligors bound for his debt, may proceed against both at the same time, although he is entitled to but one satisfaction. Asberry v. Asberry, 33 Gratt. 471.

The cases cited in 2 Robinson's (old) Practice, that of Linny's administrator v. Dare's administrator, 2 Leigh 588, and that of Sale v. Dishman's executor, 3 Leigh 448, are not in point, and can scarcely be law now. Is not the law of these cases changed by statute before cited? If not, there is nothing in them by which the demurrer in this bill can be sustained. Linny v. Dare, and the other case, simply establish that the liability of the estate of a deceased partner is not absolute and immediate, but contingent merely, depending upon the results of proper efforts to collect the debt from the surviving partner, or his ascertained insolvency. See Jackson v. King, 12 Gratt. 505, 514 and 515.

It was unnecessary to allege the insolvency of Andrew Hampton, because, by Asberry v. Asberry, he might be sued at law, while the assets of Griggs Hampton were being administered in a court of equity for the payment of appellant's debt.

Appellant's bill correctly omits any allegation of due diligence to proceed against the obligors of the bond, or his inability to make the debt out of the obligors therein, or their insolvency. The demurrer admits as true the contract of assignment and guarantee between appellant and the two Hamptons, as stated in the bill. By the fair and just interpretation of that contract, the two Hamptons were liable thereon as soon as default was made by the obligors of the bond. 2 Daniel's Nego. Ins. 639; Brandt on Suretyship and Guaranty, section 86.

Wm. H. Bolling, for the appellees.

This is not a creditor's bill. There is no allegation of a lack or want of personal assets in the hands of the administrators, nor prayer for settlement of administration accounts. The plaintiff only asks that his may be considered a creditor's bill, " if he should be compelled to resort to the real estate of Griggs Hampton for payment of his debt." Duerson v. Alsop, 27 Gratt. 229; Story's Eq. Pl., section 98 a 104, 185; 1 Bar. Ch. Pr. 271-72. There is no proper case made for an account. To give equity jurisdiction of a bill for an account, there must be mutual demands or a series of transactions on one side and of payments on the other, or there must be a discovery sought and obtained in aid of an account. 1 Dan. Ch. P. 610, (side) and note; 1 Story Eq. Jur., section 458-59; Hickman v. Stout, 2 Leigh 6, 9.

For the rules and principles upon which a court of equity has or will assume jurisdiction, exclusive and original, or concurrent, see 1 Pom. Eq. Jur., page 119a 125, section 136a 141, and page 128a 148, sections 146-47-48-49-50, 168-69.

For the Virginia practice, see 1 Rob. Pr. (old ed.), 166; Linney v. Dare, 2 Leigh 588; Sale v. Dishman's executor, 3 Leigh 448, 550-52-54a 561.

The demurrer should be sustained for the following additional reasons:

" a." The bill does not allege the insolvency of Andrew Hampton, the surviving assignor.

" b." It fails to allege that the plaintiff has used any diligence, or his inability to make his debt out of the obligors or their insolvency. If we admit that the assignment to Carter is genuine (which we deny) in the form that he claims, page ten of record, we maintain that it fixes no greater nor larger liability on the assignors as guarantors than the law fixes and determines, nor does it relieve the assignee of the duty to use all diligence in making the debt out of the obligors in the bond, nor of the necessity to make it out of the obligors, if he can, before he can claim it either in a court of law or equity from the assignors. If, on the merits of the case, the court should hold that this covenant acquits Carter, the assignee, of gross neglect and want of diligence and of laches.

" c." The bill discloses the fact that the plaintiff has, pending, a bill in equity against " some of the obligors."

If he has his remedy in this court, why not in that cause?

OPINION

FAUNTLEROY, J.

Thomas W. Carter, on the 26th of February, 1880, instituted a chancery suit in the circuit court of Grayson county, and filed his bill (which was intended and prayed to be taken as a creditor's bill) averring that Ezra Nuckolls and seven...