Opinion
01-21-1874
RODES' adm'r v. RODES & als.
Darneale, for the appellant.
There is a joint covenant by four to pay to R $300 a year for her life. To secure which annual payment each was to execute his bond with surety, binding him to pay $75 a year; but this is not done; nor is the annuity paid to her. After the death of R, one of the four joint obligors qualified as her administrator with the will annexed, and then files his bill in equity against the obligors to recover the amount due to her. The administrator being one of the obligors could not sue the others at law, and therefore the court of equity has jurisdiction to enforce the payment of the money.
In July 1870 William W. McClung, administrator with the will annexed of Sally P. Rodes, deceased, filed his bill in the Circuit court of Nelson county against James E. Rodes, William L. Williams, himself, and James M. Harris, executor of Charles Rodes, deceased, in which he set out that John H. Rodes, of that county, died leaving a will, by which he gave to his widow, the testatrix of the plaintiff, for her life, the land on which he lived, and another tract, and also certain personal property; and at her death he gave the same to his four children, two of whom plaintiff and William L. Williams had married; that after the death of said John H. Rodes, Mrs. Rodes entered into an agreement under seal, which he exhibits with his bill, with the two sons of the testator, the plaintiff and said Williams, by which she released her life interest in the property given to her for her life, to them, in consideration of which they covenanted to pay to her $300 per annum, for her life, the first payment to commence on the 25th of September 1856; to secure which annual payment each legatee was to execute to her a bond with security approved by her, obliging himself to pay her annually during her natural life, the one-fourth part of said annuity, being seventy-five dollars, the first payment to commence on the said 25th of September 1856.
The bill further states that the said Sally P. Rodes fully complied with this covenant on her part; but that the said bonds were not executed by any of the other parties; nor were the said annual sums of $300, or any part of them, paid by them to her. That she died on the 9th of February 1867, having made her will, which was duly admitted to probate, and the plaintiff qualified as her administrator with the will annexed. And making himself as one of the parties to the covenant, Williams, James E. Rodes and Harris as ex'or of Chas. Rodes, parties defendants, he asked that all proper accounts should be taken, that he might have a decree against the defendants for the amount of the said annuity, with interest, and for general relief.
Williams alone appeared. He demurred to the bill on the ground that the plaintiff had a complete and effectual remedy at law. He also answered; but it is not necessary to state his grounds of defence.
The cause came on to be heard on the 15th of September 1870, when the court sustained the demurrer, and dismissed the bill, with costs. And the plaintiff thereupon applied to this court for an appeal; which was allowed.
Darneale, for the appellant.
There was no counsel for the appellees.
OPINION
ANDERSON, J.
The covenant is a joint one, to pay to Mrs. Sally P. Rodes, annually during her life, in consideration of her relinquishing her life estate, three hundred dollars. The provision that each of the four covenantors, in order to secure the payment of the $300 annually, should execute their bonds to her severally, with security for the payment annually of $75 each, does not release them from the joint obligation, at least until that was done, until each of the four obligors had executed his bond with security, as provided. That not having been done, the joint obligation to pay $300 annually is a subsisting one.
Mrs. Rodes might, in her life time, have maintained an action at law against them jointly upon the covenant; but since her death, one of the joint covenantors being her personal representative, he could not maintain an action at law upon the covenant; because it being joint, an action of covenant could only be maintained against them jointly, and he was one of them. It is clear that at common law a party can not sue himself, either alone or in conjunction with others. Stor. on Part. § 221. In an action by several, as executors, a plea in bar that the promises were made by one of the defendants, jointly with one of the plaintiffs, is sufficient. 1 Chitty Plead. Marg. p. 26, citing 2 Bos. & Pul. R. 124. Upon the technical principles of the common law, no person can maintain a suit against himself, or against himself and others. The objection is at law a complete bar to the action. 1 Stor. Eq. Juris. § 679.
But in equity there is no difficulty. It is sufficient that all parties in interest are before the court, either as plaintiffs or defendants. They need not, as at law, be on the opposite sides of the record. Ibid. §680. Although in such cases there is no remedy at law, yet in equity an appropriate remedy may and will be granted whenever it is ex equo et bono necessary and proper. Stor. on Part. § 222; 2 Bos. & Pul. 124; 6 Taunt 605.
The court is therefore of opinion, that a bill in equity was the proper remedy of the administrator cum testamento annexo, of Mrs. Sally P. Rodes to enforce the joint covenant in which he was one of the covenantors; and that it was error to sustain the demurrer and to dismiss the plaintiff's bill for want of jurisdiction, which is the only point in the case.
The court is of opinion, therefore, to reverse the decree of the Circuit court, and remand the cause for further proceedings to be had therein in conformity with this opinion.
Since this opinion was written, my attention has been called by J. Staples to the decision of this court in Booth v. Kinsey, 8 Gratt. 560, by which we are fully sustained. See J. Moncure's opinion, p. 562.
DECREE REVERSED.