Smith v. Thompson's Adm'r

• Decision Date: 14 May 1850
• Citation: 48 Va. 112
• Court: Virginia Supreme Court
• Parties: SMITH & others v. THOMPSON'S adm'r & others.

48 Va. 112

SMITH & others v. THOMPSON'S adm'r & others.

Supreme Court of Appeals of Virginia.

May 14, 1850

(Absent Allen, J.)

1. A party who comes into a Court of equity to enforce an equitable claim, must do so within a reasonable time; and he must not delay until, by his negligence, there can no longer be a safe determination of the controversy, and his adversary is exposed to the danger of injustice from loss of information and evidence, and means of recourse against others, occasioned by deaths, insolvencies and other untoward circumstances.

2. The application of this equitable doctrine is for the sound discretion of the Court; and does not require the conviction of the Court against the original justice of the claim, or of any other specific ground of defence; but its belief that under the circumstances of the case, it is too late to ascertain the merits of the controversy.

3. A case in which the Court refused relief on the ground of laches and lapse of time.

This was a suit in equity, instituted in September 1845 in the Circuit court of Louisa county, by the administrator de bonis non with the will annexed, and children, of Garland Thompson deceased, against the administrators de bonis non with the will annexed, of Nathaniel A. Smith deceased, his widow and children, and others. The case stated in the original, amended and supplemental bills, was substantially as follows: That in the year 1815, William Mitchell, jr., and Charles Thompson, jr., borrowed of Francis Jerdone the sum of 10,000 dollars, for which they gave their joint obligation with Thomas Price, jr., of Hanover county and several other persons as their sureties. That in 1821 William Mitchell, jr., paid to Jerdone his moiety of the debt, and then took from Charles Thompson, jr., a bond, with Nathaniel Thompson and Nathaniel A. Smith, as his sureties to secure Mitchell and his heirs against the payment of Charles Thompson's half of the bond. That this bond though it had been sought for in every place where it might be expected to be, had not been found, and they charged, therefore, that it was lost. That William Mitchell, jr., died in 1822; and by his will he gave one half of his estate to his mother Isabella Mitchell, and the other half to his sister Mrs. Garland Thompson; and that Garland Thompson qualified as his executor, with Charles Goodall and others as his sureties. That Isabella Mitchell afterwards died, and left her estate to Mrs. Garland Thompson. That thus a large part of the estate of William Mitchell, jr., had become the property of Garland Thompson; and that the complainants had inherited from him a considerable property. That Garland Thompson died in 1835; and Charles Thompson, jr., qualified as his executor, and also as administrator de bonis non with the will annexed of William Mitchell, jr. That he had been lately removed, and the plaintiff Philip M. Thompson had qualified on the estate of Garland Thompson, and that of William Mitchell had been committed to the sergeant of the City of Richmond. That until recently before the institution of the suit, Charles and Nathaniel Thompson were in prosperous circumstances, and fully able to pay the balance due upon the bond to Jerdone; but that they had then become irretrievably insolvent. That the administrators of Jerdone had recovered a judgment upon the bond against Thomas Price's representative, who had paid the amount, and had sued the sureties of Garland Thompson as executor of William Mitchell, jr., for the devastavit of the executor, and had recovered a judgment against them; and they, having discharged the judgment, had filed their bill against the complainants as the administrators de bonis non with the will annexed of Garland Thompson and Isabella Mitchell, and the heirs at law and devisees of Garland Thompson and Isabella Mitchell, who were the residuary legatees of William Mitchell, to have satisfaction of the amount so paid by them, with interest and costs.

The parties defendants to the bill were the personal representative, widow and children of Smith, Charles Thompson, jr., and Nathaniel Thompson, the sureties of Garland Thompson as executor of Mitchell, and others; and the prayer of the bill was, that the representative, devisees and legatees of Smith might be compelled to indemnify and save the complainants harmless against all loss or injury on account of the debt of Jerdone, and particularly against the demand of the sureties of Garland Thompson as executor of Mitchell, and for general relief.

The complainants filed with their bill, the will of William Mitchell, in which he stated that he and Charles Thompson, jr., had borrowed of Jerdone 10,000 dollars; of which he had paid his moiety, and had taken of Charles Thompson, jr., his bond for 5000 dollars, with Nathaniel Thompson and Nathaniel Smith. But this will was specially excepted to by the Smiths as incompetent evidence against them.

The personal representative, heirs and legatees of Smith, demurred to the original and amended bills, and also answered them. It is unnecessary to state the grounds of demurrer. In their answer, they denied all knowledge of the bond to Jerdone; and alleged that they had never heard until 1843, of the bond which the complainants sought to set up against their testator. And they required the fullest proof that the bond ever existed; or if it once existed, that it had not been intentionally destroyed by Garland Thompson.

The only question of fact really in dispute in the cause, was as to the existence of the bond of indemnity to Mitchell. As to that, Charles Thompson, jr., was examined, and stated, that some time in the year 1814 or 1815, William Mitchell and himself borrowed of Francis Jerdone 10,000 dollars, and executed a bond for the same, with some three or more sureties. That about the year 1820 or 1821, Mitchell paid one half of this bond, 5000 dollars, to Jerdone, and required of Thompson to execute a bond to him as an indemnity for the other half, which he did, with Nathaniel Thompson and Nathaniel A. Smith as his sureties; the condition of which last mentioned bond was to indemnify and save harmless the said William Mitchell from all liability as co-obligor in the said bond of 10,000 dollars to Jerdone. That William Mitchell was living in Richmond at the time the bond was executed that he wrote to Thompson on the subject, who, in his answer, mentioned Nathaniel Thompson and Nathaniel A. Smith as his sureties; to which Mitchell assented. He says further, " I think I drew the bond, and when it was executed, I expect William Mitchell was in Richmond. I...