Smith v. Pattie

• Decision Date: 15 April 1886
• Citation: 81 Va. 654
• Parties: SMITH v. PATTIE.
• Court: Virginia Supreme Court

81 Va. 654

SMITH v. PATTIE.

Supreme Court of Appeals of Virginia.

April 15, 1886

Appeal from decree of circuit court of Fauquier county, pronounced December 26, 1883, in a chancery cause under the style of Smith v. Pattie and others, wherein Thomas Smith is plaintiff and William A. Pattie and others are defendants and the suit of Kercheval v. Kercheval, which was ordered to be heard with the first-named suit. By the decree the commissioner's report of August 26, 1883, in Smith v. Pattie, was confirmed, and the claims of James S. Pattie against the estate of Otho H. Pattie deceased, were allowed, though out of date. If they are to be paid then, they will intercept and consume the estate of said decedent which otherwise would go to Smith's judgment debtor, William A. Pattie, as sole heir of the decedent, and be subject to the lien of that judgment. William A. Pattie being also administrator of the decedent, refused to plead the statute of limitations to said State claims. Smith excepted to said report on the ground that said claims, so reported allowed, were barred. But the circuit court overruled the exception, and from its decree said Smith obtained an appeal and supersedeas.

Opinion states the case.

A D. Payne and W. W. Gordon, for the appellant.

Brooke & Scott, for the appellees.

OPINION

RICHARDSON, J.

This was originally a simple bill in equity by Thomas Smith to enforce the lien of his judgment against the real estate of his judgment debtors, John J. James and William A. Pattie, the bill seeking an account to ascertain the real estate of the judgment debtors liable to said judgment. It seems that John J. James had no estate to be subjected to the plaintiff's judgment. The bill charged that the lots on Winchester street, in the town of Warrenton, which had been conveyed by several deeds to James S. Pattie and Otho H. Pattie, and which they subsequently, by the deed of the 5th of April, 1872, conveyed to their father, William A. Pattie, trustee, to be by him held for the mutual benefit and ownership, as joint tenants, of the said James S. and Otho H., and the other beneficiaries therein named, the brothers and sisters of the said James S. and Otho H. Pattie, had been bought by and paid for with the means of William A. Pattie, and that he was in equity the real owner thereof, and that the property was, therefore, liable for the complainant's said judgment. And the bill charges alternatively that if the said deed of April 5, 1872, is valid, and vests the property in said lots as therein provided, then the said Otho H. Pattie having died intestate, unmarried and childless, his interest descended to his father, William A. Pattie, the complainant's judgment debtor, and that complainant's judgment at once attached as a lien thereon. The bill also charges that William A. Pattie is the equitable owner of the 210 acre-tract mentioned. As to the last named charge, and also as to the charge that William A. Pattie is the equitable owner of the lots mentioned in the deed of April 5, 1872, the bill is not sustained by proof.

It is, however, admitted that Otho H. Pattie was the owner of an undivided sixth of the property conveyed in trust to William A. Pattie by said deed of April 5th, 1872, and that on his death the same descended to William A. Pattie, the complainant's judgment debtor, as the heir-at-law and sole distributee of said decedent. In the progress of the cause the judgment debtor, William A. Pattie, filed his individual answer admitting the validity of the complainant's judgment, and admitting that Otho H. Pattie owned an undivided sixth interest in the lots in Warrenton, and that the same descended to him on the death of said Otho H. Pattie; but alleged, affirmatively, that the decedent was indebted in a sum greater than the value of said interest; and further stated that he had qualified as the administrator of said Otho H., and insisted upon being made a party defendent in his said fiduciary capacity. The amendment was made, and the said William A. Pattie was admitted a party defendant, as the administrator of Otho H. Pattie, and as such administrator, he filed his answer, in which he repeated the allegation in his former individual answer, that the interest which had descended to him from said Otho H. Pattie was not equal to the indebtedness of the intestate, but he does not intimate anything as to the character of the debts or to whom due. Thereupon a decree was entered in the cause declaring the interest of Otho H. Pattie in said real estate, which had descended to said William A. Pattie, liable to complainant's judgment, and directing an account of the liens upon said interest so descended. Thus amended, the suit was no longer one simply for the enforcement of the complainant's judgment lien, but became also a suit to administer in equity the estate of the intestate, Otho H. Pattie. It must, therefore, be treated as in the nature of a creditors' suit.

It has been shown that the master reported, though in an irregular way, the value of the aforesaid interest of Otho H. Pattie at $500, and that it was sold to T. E. Pattie for that sum, which was treated by the master as assets which actually went into the hands of William A. Pattie, as " administrator and trustee" ; the whole of which sum is credited in the account stated and reported by the master as paid by William A. Pattie, as such administrator and trustee, to James S. Pattie on the debt of $756.78 reported in his favor, and leaving, as reported by the master, a balance of $303.02 still due James S. Pattie. By this mode of stating the account, the entire interest and estate of Otho H. Pattie is converted into assets in the hands of the administrator, and absorbed as a credit on the debt reported in favor of James S. Pattie, when there is not in the record even an atom of evidence either fixing the value of the Otho H. Pattie interest at $500, or intimating that there ever was a sale of the same to T. E. Pattie, or any one else. On the contrary, so far as shown by the record, the account, as stated and reported, is but a baseless assumption by the master. Indeed, it satisfactorily appears that no such sale was ever made to T. E. Pattie. This clearly appears in the printed argument of counsel for the appellee, where, in referring to the debt of $752.78, reported in favor of James S. Pattie, and suggesting that the interest of Otho H. Pattie in the town lots was estimated at $500, it is said: " There seems to have been an effort to settle this indebtedness, in part, by a sale of the share of O. H. Pattie to T. E. Pattie at that price, on the 3d of January, 1881, which, however, resulted in nothing. But if it had been sold at that price, there would still have been a balance of J. S. Pattie's debt unpaid of $303.02." Thus, by the argument here of counsel for the appellee, everything reported by the master is refuted, except the fact of the report of the debt in favor of James S. Pattie. Under such circumstances it is impossible to conceive upon what principle the court below overruled the complainant's exceptions to said report and confirmed the same, especially as the report was excepted to because (among other things) the value of the Otho H. Pattie interest, reported at $500, was less than its real value, and because said sum was reported as assets which had come to the hands of the administrator. That the action of the court below was, in this respect, altogether erroneous, there can be no doubt.

We come now to the one important question in the case, the answer to which must determine the merits of this controversy, and that is, was the debt reported in favor of James S. Pattie, against the estate of Otho H. Pattie, barred by the statute of limitations when proved before the master? That more than five years had elapsed from the time of the accrual of the right of action is conceded; but it is insisted that, by the obligation of William A. Pattie, of January 1st, 1879, to James S. Pattie, by which the former, as distributee and heir-at-law of Otho H. Pattie, acknowledged the responsibility of the estate of said Otho for the amount of the three negotiable notes, and bound himself to pay the amount thereof, with interest, there was a new promise as of that date by the heir-at-law and sole distributee which renewed the liability of the estate as of that date, and that the statutory period not having thereafter elapsed, the debt was not barred. For obvious reasons this position is wholly untenable.

The consideration for the promise is expressed in said obligation in this language: " And bind myself in consideration of his" (James S. Pattie) " not suing or superseding me" (Wm. A. Pattie) " as administrator to pay them" (the notes) " out of any assets of said Otho H. Pattie which I may receive; and I bind myself personally and in right of the estate, to pay the above-mentioned sum, with interest, to the said James S. Pattie, he having surrendered the original notes to me," & c. This obligation is dated January 1st, 1879. William A. Pattie was not appointed administrator until May 12th, 1879, nearly four months and a half after. The new promise relied on was made by William A. Pattie in his individual capacity, and could not bind the estate of Otho H. Pattie, between whom and the promisor there was no privity, and consequently the promise could only bind William A. Pattie individually. The fact that William A. Pattie acknowledged the responsibility of the estate of Otho H. Pattie, and promised, as distributee and heir-at-law, and personally, and in right of the estate, to pay, does not add an iota of legal sanctity to the obligation over and above the ordinary simple obligation to comply with one's contract; nor can it, by possibility, serve to charge...