Opinion
(December Term, 1842.)
1. The act of Assembly, Rev. St., ch. 46, sec. 23, allowing to executors and administrators nine months from the time they qualify to plead to any original suit brought against them, does not apply to suits in equity.
2. An act of Assembly prescribing rules of practice does not apply to courts of equity, unless those courts are named in the act, or the proceedings therein be within the mischief for which the act was meant as a remedy.
3. In equity an executor is chargeable with assets only upon his admission of them or upon the report of the master that he has them.
4. The filling of a bill, or even a decree to account, does not bind the assets so as to prevent an executor from paying other creditors in equal degree, unless it be a bill in behalf of all creditors and a decree thereon for an account.
THIS was an appeal from an interlocutory order of the Court of Equity for RANDOLPH, at Fall Term, 1842, his Honor, Settle, J., presiding.
The bill was filed in September, 1842, returnable to Fall Term, 1842, of Randolph Court of Equity, for the foreclosure of a mortgage of a negro slave, and the process on the bill had been duly served on the defendant as administrator of George Hoover, deceased, who had given the mortgage. At the return term, viz., the Fall Term, 1842, the following entries were made on the minutes of the court: "The defendant alleges that letters of administration with the will annexed were granted to him on the estate of his testator at August Term, 1842, of Randolph County Court, and that he is not bound to plead or answer until nine calendar months from that time. The plaintiff's counsel contends that the defendant is bound to plead, answer or demur at this term, and moves for judgment pro confesso. His (270) Honor, after hearing the counsel both for the plaintiff and the defendant, doth adjudge that the defendant is not bound to plead, answer or demur to the plaintiff's bill until after the expiration of nine calendar months from and after his taking upon himself the office of administrator. From this judgment the plaintiff prayed for and obtained an appeal to the Supreme Court, giving bond, etc."
Swaim for plaintiff.
Mendenhall for defendant.
On 7 March, 1842, George Hoover executed to the (275) plaintiff a mortgage of a slave to secure the payment of a sum of $500 and died in May following, having made a will, which was proved at August Term, 1842, of Randolph County Court, at which time administration with the will annexed was granted to the defendant. The plaintiff then filed this bill to foreclose the mortgage or to have money raised by a sale of the slave. At September Term, 1842, of the Court of Equity for Randolph County, the defendant not having put in a plea, answer or demurrer, the plaintiff moved the court that he might take the bills pro confesso and set the cause for hearing thereon. But the defendant opposed the motion, on the ground that he was not bound to answer or plead until nine months after taking administration, and the court, being of that opinion, refused the motion, and the plaintiff appealed by leave of the court.
The point on which this appeal was taken arises on the act of 1828, ch. 8 (Rev. Stat., ch. 46, sec. 23). By the fourth section it is enacted that "no executor or administrator shall be bound or compelled to plead to any original suit brought against him in any court until the expiration of nine calendar months from and after his taking upon himself the office of executor or administrator." It was held by his Honor that this enactment embraced the present suit in the Court of Equity. But in that construction we do not concur. The language of the act in itself is appropriate to proceedings in a court of law, and it cannot embrace proceedings in courts of equity unless (276) those courts had been named in the act or the proceedings therein be within the mischief for which the act was meant as a remedy. Statutes which confer rights or regulate contracts must be observed by all courts. But those which regulate matters of practice or the course of proceeding have never been considered as applying to courts of equity unless mentioned. The reason is that those courts have a peculiar jurisdiction and a settled course of proceeding, subject to be modified, in the discretion of the Chancellor, according to the justice of each case, and it cannot be supposed that the Legislature intended to abrogate that discretion and alter the course of the court without plain words to that effect and directly applicable to the Court of Equity; for the Legislature knows full well that although equity professes to follow the law in respect to rights, it does not profess to follow the law in its remedies and course of proceeding, but quite the contrary. And therefore, when a statute undertakes to regulate the practice of courts it cannot embrace the courts of equity without plain words or an equally plain implication. This act has no such language. Nor is there any such mischief in equity as that which existed at law and rendered this act necessary there. At law assets are admitted unless they are denied by plea; and the plea must truly state the condition of the assets at the commencement of the suit or at the time of the plea. And there can be no doubt but the purpose of the Legislature in extending the time for pleading was to give an executor the opportunity of learning the degree of the testator's indebtedness and ascertaining the assets, by a sale and other means, before he was called on to conclude himself by pleading. But in equity an executor is not chargeable with assets upon the silence of his answer as to them, but only upon an admission of them or upon the report of the master that he actually has them. Mitchell v. Robards, 17 N.C. 478. And the filing of the bill or even a decree to account does not bind the assets so as to prevent the executor from paying other creditors in equal degree, unless it be a bill on behalf of all creditors and a decree thereon (277) for an account. Allison v. Davidson, 21 N.C. 46. There could be no prejudice to the estate, therefore, or to the defendant, by requiring him to proceed immediately in the cause, nor any motive for not answering but the mere arbitrary purpose of delaying the plaintiff. No question of assets could, indeed, be made in this particular cause; for on a bill to foreclose there is no decree for the debt against the general assets, but only that the pledge become absolute or that at the instance of one of the parties it be sold and the proceeds applied in satisfaction. Whether regard be had to the words of the act or to the necessity which caused it, we think it equally clear that it cannot be construed to change the course of the Court of Equity, and the defendant should have been required, according to the act of 1782 (Rev. Stat., ch. 32, sec. 4), "to put in his answer or plea, agreeably to the practice in chancery, or demur," unless, upon reasonable cause shown, further time had been allowed.
This opinion will be certified accordingly. The defendant must pay the costs in this Court.
PER CURIAM. Ordered accordingly.
Cited: Marsh v. Grist, 62 N.C. 350.
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