Opinion
June Term, 1855.
Under the act of 1789, an administrator, who has made advertisement for creditors to present their claims within two years, but who has not taken refunding bonds from the next of kin, on paying the surplus to them, is not protected against the action of a creditor, brought after such advertisement and payment over.
Whether a surety, who pays a debt (not due by specialty) after the action of the creditor is barred by the Act of 1715, can maintain an action against a co-surety for contribution. Quere?
ACTION ON THE CASE in assumpsit, submitted to his Honor, Judge CALDWELL, at the Spring Term, 1855, of Pitt Superior Court, upon the following case agreed, viz:
Attorney General, for plaintiff.
No counsel for defendant.
"Whitehard, with John Bell and Peter Reeves as sureties, gave his bond to Hanrahan, in 1845, for $200, on which Whitchard paid the accruing interest until January, 1852, when he became insolvent. The plaintiff, by compulsion, paid to Hanrahan the whole bond on the 1st of January, 1853, and having given noticed to the defendant, the administrator of his co-surety, brought this action for contribution.
John Bell, the co-surety, died intestate, in the year 1848; and the defendant, having duly qualified as his administrator, at February term of Pitt county court, advertised for creditors to present their claims.
It is agreed, that before the plaintiff made this payment to Hanrahan, defendant had settled the estate of Bell, and paid over the residue to the next of kin, having advertised as above stated; but he took from them no refunding bond.
It was agreed, that if the court should be of opinion that the defendant was protected by the statute of limitations, judgment of nonsuit should be entered; but that if the court should be of a different opinion, judgment should be rendered for the plaintiff for $100 and costs.
Upon consideration of the case, his Honor, being of opinion with the plaintiff, rendered a judgment for him, according to the case agreed; from which the defendant appealed.
It is an interesting question, whether a surety who pays a debt (not due by specialty) after the action of the creditor is barred by the Act of 1715, can maintain an action against a co-surety for contribution? On the one hand, the cause of action, on the part of the surety, does not accrue until he pays the debt, and he may say, the statute did not begin to run as against him, until his cause of action accrued: On the other, the co-surety may say, the cause of action of the creditor having accrued when the debt fell due, which is more than three years before you commenced your action, the creditor was barred by the statute, and you were under no obligation, and of course had no right to pay the debt and thereby subject me to the payment of one half: your payment was not made at my instance and request, so you cannot charge me as for money paid to my use. The facts in the case do not present this question, and we are not at liberty to give our opinion in regard to it.
This case turns upon the construction of the Act of 1789. Executors and administrators are required to make advertisement for creditors to present their claims within two years; and at the expiration of two years, executors and administrators are required to pay over the surplus, after deducting the necessary charges, and the amount of debts paid within two years after administration granted, to the legatees or next of kin, taking a refunding bond, payable to the State, for "the use and advantage" of the creditors of the deceased, to be proceeded on by sci. fa. c. And it is further provided, that if a creditor shall fail, within two years after administration granted, to bring an action against the executor or administrator, who has made advertisement as required, the action of such creditor shall be barred. If the action of the original creditor was barred, we are inclined to the opinion, that a surety, who afterwards pays the debt, can stand in no better situation; so the question is, was the action of the original creditor barred?
The administrator had made advertisement as required by law, but he had neglected to take the refunding bonds as required by law; could he, if sued by the original creditor, have barred the action, on the ground that it was not commenced within two years after administration granted, without an averment that he had taken refunding bonds? We think this averment necessary in order to bar the action.
For the case of executors and administrators and for the convenience of legatees and distributees, the former are required to pay legacies and distributive shares, at the end of two years, taking refunding bonds "for the use and advantage of the creditors" who may not have been paid. And executors and administrators, provided they have made advertisement, may bar the action of all creditors who have neglected to sue within two years.
These several enactments, according to well established rules of construction, are all to be taken together, and the amount of it is, that an executor or administrator, may, after two years, bar the action against himself, provided he has made advertisement, and has taken a refunding bond "for the use and advantage of the creditors," so that he may say, here is a bond payable to the State, upon which you may recover your debt. I was required by law to take it for your "use and advantage," and thereby relieved myself from all further liability.
For the sake of illustration, take the case of a debt due by specialty: there is no general statute of limitations; the executor or administrator cannot protect himself, except by the presumption of payment, or by the act of 1784, (called the seven years bar:) the creditor sues after the two years; it is admitted that he cannot maintain his action against the executor or administrator, provided advertisement has been made and refunding bonds have been taken as required by law; but most assuredly, the specialty creditor does not forfeit his debt by neglecting to sue within two years after administration granted; and the meaning of the act of 1789, is simply to enable the executor or administrator to "ward off" the action against himself, provided he has taken the proper step to provide the creditor with an action upon the refunding bond.
We fully concur with his Honor, who decided the case below, as to the construction of the Act of 1789.
PER CURIAM. Judgment affirmed.