gooch v. Gooch.
| Decision Date | 28 November 1911 |
| Citation | 70 W.Va. 38 |
| Court | West Virginia Supreme Court |
| Parties | gooch v. Gooch. |
Is a personal representative given exclusive right over creditors, for six months after qualification, to bring the suit provided for by sec. 7, ch. 86, code 1906, to subject real estate of a decedent to payment of debts? (p. 39).
Must a bill in equity under sec. 7, ch. 86, code 1906, to subject real estate of a decedent to debts, allege the insufficiency of his personal estate to pay his debts? (p. 40).
When there is by law no enforceable obligation to pay, a promise made afterwards to pay wants legal consideration, and is not enforceable, (p. 43).
A promissory note given by a son to his widowed mother for money paid by her for his board while at college and his college education, after such expenditure, without promise or expectation of repayment on the part of either, at the time of such expenditure, wants iegal consideration, and is not enforceable, (p. 43).
A merely moral obligation, though not illegal, is not a consideration for a promise, to make that promise enforceable, (p. 43).
A co-debtor, not principal debtor, paying a debt secured by a deed of trust executed by both on their land may have subrogation to the right of the creditor for contribution against his codebtor, (p. 41).
A deed of trust binding land of several debtors for a debt, paid by one not principal debtor, and released by the creditor, is kept alive in equity to give contribution to the debtor paying against a co-debtor, notwithstanding such release, and though action at law for contribution is barred by the statute of limitations. Laches, not statutory limitation, may bar such subrogation. (P. 42).
It is error to give interest on the sum of principal and interest computed to a date prior to decree. Interest on the sum of principal and interest at date of decree should be given from date of decree, (p. 45).
Appeal, from Circuit Court, Summers County.
Suit by Ellen A. Gooch, against Josephine L. Goocli and others. From a decree for plaintiff, defendant Josephine L. Allen (nee Gooch) appeals.
Reversed and Remanded.
McGinnis & Hatcher, 0. P. Fitzgerald, Jr., and Brown, Jackson & Knight, for appellant.
T. N. Read and R. F. Dunlap, for appellee. Brannon, Judge:
Ellen A. Gooch brought a chancery suit against the executrix and other representatives of the estate of her dead son, J. A. Gooch, to compel a settlement of the accounts of said executrix, and sell the real estate owned by her son to pay debts due her. A decree was entered in favor of the plaintiff for her demands against the estate and subjecting certain real estate of the dead son to sale. Josephine S. Allen, the widow, executrix and devisee of J. A. Gooch appeals.
There was a demurrer to the bill. One ground of demurrer is that section 7, ch. 86, Code, gives-six months preference after qualification to the personal representative to bring a suit to administer the real assets of a decedent before a creditor can do so, and that this bill does not say whether a suit had or had not been brought by the executrix, or when she qualified. Is a creditor thus compelled to wait for six months after the qualification of a personal representative before be can bring a suit to subject the realty of a dead man to his debts? As we hold this to be a suit to enforce subrogation we do not decide this point. Speaking only for myself it does seem that the statute gives the personal representative preference for six months, and delays the creditor. The creditor could always sue the personal estate in equity. Then when the statute made land liable for the debts of the dead man, he could sue the land for the same reason that he could sue the personalty, that is that he has a debt for which the land is liable, but the law-makers saw proper to give a time to the administrator to see whether the personalty would pay debts, without recourse to the land, as he would know best as to this. This is given as a reason for this preference in the Underwood Case, 22 W. Va., p. 306. It was not intended that any creditor should sue the realty until a reasonable time had been given the administrator to ascertain as to sufficiency of the personal assets, and gives him exclusive right of suit for six months. It was further intended to protect the estate from loss by numerous suits, and give the personal representative power, for a time, to bring suit for all creditors. I incidentally express this opinion in Rowan v. Chenowith, 49 W. Va. p. 290. I submit that Judges Snyder and Woods so construed section 7. Rheinhardt v. Rheinhardt, 21 W. Va. 76; Broderick v. Broderick, 38 Id. 385. Judge Dent so construed those cases in Poling v. Huffman, 30 W. Va. 320. The last case and Hale v. White, 47 W. Va. 700, seem contra. But are they? Judge Dent admits the rule above stated, but seems to place those cases on special facts taking them out of the rule. What is the plain import of section 7? So, I would say that a bill filed under section 7 should show that six months had elapsed after the qualification of the personal representative and that no suit had been brought by him.
It is also urged that the bill does not state that the personal assets are not sufficient to pay debts, and that it is therefore bad on demurrer. Section 7, ch. 86, gives a suit to charge lands with debts "when the personal estate of a decedent is insufficient for the payment of his debts." Remember that this statute recognizes the rule that land shall not be made liable to debts of a dead man except when the personalty is inadequate. Therefore I 'would say without hesitation that a bill under section 7 must aver that the personalty is inadequate. Such inadequacy is a condition precedent to such suit. But we do not so decide, because this is a suit for subrogation, not one resting on section 7.
Another ground of demurrer is that the qualified personal representative must be before the court. That is so; but she is. This point is made on the fact that the bill named as a defendant "Josephine L. Gooch, executrix." The bill alleges that she was nominated as execritrix by the will, "and in pursuance of said nomination has been acting as such." It is claimed that the bill ought to say that she qualified by giving bond and taking the oath prescribed by law. We do not think this point substantial. It is technical. True, the statute says that an executor shall not have powers as such until he qualify by taking oath and giving bond; but we think the presumption would be that the executrix has so qualified as it is averred that she was acting as such.
Xext subject. Has equity jurisdiction of this case? We answer that it has.
The bill says that J. A. Gooch, C. H. Gooch and the plaintiff Ellen A. Gooch made to Fox a note of $850 00 to raise money to pay off debts owing by B. P. Gooch, husband of Ellen A. Gooch, and father of J. A. Gooch and Charles Gooch and secured it by deed of trust on the real estate left by B. P, Gooch, which deed of trust was on the real estate sought to be subjected in this suit, which deed of trust is an exhibit of the bill, and that the plaintiff as one of the makers of the note paid the note, and that J. A. Gooch never paid the plaintiff his part of the note, and that the plaintiff was entitled to have contribution from his estate of one third of the sum paid by her, and claimed the right to subject the real estate covered by the trust deed, the third descending to J. A. Gooch from his father, for his portion of the debt. It is claimed that the bill does not sufficiently aver the facts authorizing subrogation. We think as the bill alleges the execution of the deed of trust and exhibits it, that if is sufficient in this respect.
It is claimed that there is no right of subrogation in favor of a debtor against a co-debtor, as this deed of trust was released. We believe it is not claimed that a surety may not have a subrogation against a co-surety. That he has is well established.. Sheldon on Subrogation, section 140; Wheatley V. Calhoun, 12 Leigh 264, 27 Am. & Eng. Ency. L. 223; opinion in Sands v. Disham, 99 Va. 263, 86 Amer. St. R. 884 and note. But the claim is that as the deed of trust was released the deed of trust was dead, and there could be no sub::ogation; that the release reverted the title to the maker of the trust, and until that release should be set aside by a legal adjustieation, there could be no subrogation. Some authorities support this position; but it is untenable under our law and a great weight of authority. A release does not prevent subrogation. 27 Am. Eng. Ency. L. 213. Sheldon on Subrogation, section 14. When payment is made, or release is made, the debt is dead in a court of law; but equity keeps it alive for the benefit of the surety or co-surety. A judgment paid is ended at law, but equity keeps it alive for the benefit of the surety. What is the difference between a receipt in full and a release? A multitude of authorities say that payment does not satisfy the judgment or other lien as between the debtor and surety. Therefore, we hold that the plaintiff is entitled to subrogation under the deed of trust.
But it is said that though there was once a right to subrogation it is lost by the statute of limitation of five years, the period applicable to the case of a surety demanding payment or contribution of his principal or co-surety. True, action at law would be barred; but this case is governed by the principle of subrogation. The party claims the right in equity under a deed of trust. A deed of trust has no limitation by ...
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