*Shands’ Ex’x v. Grove & als.
September Term, 1875,
Staunton.
I. Creditor’s Suits.—G brings a creditor’s suit against tbe executrix of S, to subject tbe estate of S to satisfy a judgment. Tbe order book of the court was destroyed, but some of tbe papers were preserved: and it was proved by a witness that G recovered a judgment against the K. T. Co. and issued execution upon it; and then, at tbe instance of S, sued out a suggestion against him as a debtor of the Co., and that S appeared in court and acknowledged bis indebtedness to tbe Co., and judgmentwasrendered againsthim. Tbe proceedings in both cases to tbe judgments are endorsed on tbe papers preserved. An account taken in the cause showed the executrix indebted to tbe estate for considerably more than tbe claim of tbe plaintiff, beside large assets in her bands; and an inquiry ordered as to tbe debts of S was not acted on, no other creditor making claim. Hred :
1. Same.—G is entitled to recover bis debt from tbe estate of S.
2. Same—Parties.—Tbe proceeding being against tbe estate of S as tbe debtor of G, tbe Co. was not a necessary party.
3. Objection First Made in Appellate Court.—No other creditor having presented a claim, and tbe executrix not having insisted upon tbe enquiry, a personal decree against her will not be reversed for the want of such enquiry, upon the obj ection first made in the appellate court.
In July 1870 Emanuel Grove and Richard E. Omohunder filed their hill in the County court of Rockingham, in behalf of themselves and all other creditors of E- A. Shands, deceased, who should come in and contribute to the expense of the suit. They say that at the May term 1859 of the Circuit court of Rockingham, said Grove, suing for the benefit of said Omohunder, recovered a judgment against E- A. *Shands for $760.25, with interest on $753, part thereof, from the 15th of December 1855, and $3.36; and they exhibit a copy of the judgment certified by the then clerk, and say the original record of the judgment was burned with the order books, &c., by the United States troops in 1864. That execution issued on this judgment in June 1869, but was never levied, and no part of it had been paid. That said judgment was duly docketed in 1861. That Shands died in 1861, leaving a widow and several children, and leaving a will which was admitted to record, and his widow qualified as executrix thereof, and took possession of his estate both real and personal. They make Mrs. Martha Shands, in her own right and as executrix of E. A. Shands, deceased, a party, and call upon her to say whether the personal estate in her hands is sufficient to pay the debt of the plaintiffs, and pray for a settlement of her accounts, an account of the debts and liabilities of the estate, that their debt may be paid, and for general relief.
Mrs. Shands answered the bill. She says she had understood that Grove, prior to June, 1857, had some pecuniary claim against the Rockingham Turnpike Company, and transferred it to Omohunder. That said company being largely indebted, on the 13th of June 1859 conveyed its property, franchises, &c., to E. A. Shands, in trust to secure its creditors, and among others Omohunder. That subsequently some irregular proceedings were set on foot by the complainants or one of them, in the Circuit court of Rockingham county, whereby they pretend they have obtained in the year 1858, a judgment upon said claim against the company. That they subsequently, on the 28th of December, 1858; sued out of the clerk’s office of said Circuit court, a suggestion against said E- A. Shands, '^founded upon said supposed judgment, whereby they sought to bring *214into the court of law rendering the judgment, the control of the funds and property of said company, conveyed in trust to said Shands. They now pretend that upon this suggestion they obtained a personal judgment against said Shands, for the whole amount of their claim against the company; when in truth the said Shands, in his lifetime, never owed the complainants anything, nor has his estate since his death become liable to pay them anything. She denies that Shands owed the company anything, either before or after their deed. But how he administered that trust she presumes is not- a proper enquiry in this cause, as it is drawn in question in another suit pending in the Circuit court of the county, in which the defendant and the said Omohunder are parties.
The defendant further answers, that there is no sufficient record to show Grove’s recovery against the Rockingham Turnpike Company; nor is there any record of a judgment against E. A. Shands in favor of the complainants or either of them. That it would appear that a suggestion as a foundation of a proceeding to obtain a judgment against Shands, was sued out of the clerk’s office of the Circuit court of Rockingham on the 28th of December 1858; but he had neither actual nor constructive notice, so far as appears. That the sheriff’s return upon the suggestion is that he delivered and explained a copy of said srtggestion to the wife of E. A. Shands, “a white woman over sixteen years of age, he not being found at his usual place of abode;” but it by no means appears by the said returns or by any other evidence, either that the wife of E. A. Shands was a member of his family, or was found at his usual place of abode. She denies the rendition and docketing of said supposed judgment *against her testator, and denies that any execution, in the sense of the law, was ever issued thereon. And she claims the benefit of the statute of limitations applicable to such cases.
Defendant admits that a considerable amount in value of real and personal property came into her hands as executrix, but tne greater part thereof was embraced in a deed of trust executed by said R. A. Shands to William B. Shands, on the 22d of March 1861, to secure certain creditors. That no sale had ever been made under this deed; and the greater part of the liabilities intended to be secured thereby have been paid off by Shands in his lifetime, or defendant since his death; some of them however remain unsatisfied—that to) Thomas J. Michie, and perhaps some others; she thinks the personal property; including debts, which has or will come into her hands, will be amply sufficient to pay the remaining indebtedness of the said estate. She insists that at most, Shands was only a security for the plaintiff’s debt, and that the company, or at least their trustee who had been substituted in the place of Shands, should be a party.
It was in proof that the order books of the court and other papers in the office, had been destroyed by the United States troops in 1864; but there were found in the clerk’s office some of the papers in the case of Grove for the use of Omohunder, against the Rockingham Turnpike Company. These were the writ with the return of the sheriff of the service thereof, the declar-ation, and the negotiable note on which the action was founded, with the protest for non-payment and proof of notice; and on the writ was an endorsement of the name of the case, the initials of plaintiff’s counsel, the nature of the action, and the proceedings in the case to the judgment. There was also a summons *to R. A. Shands, on a suggestion stating 'that Grove, for the use of Omohunder, had sued out, &c., a writ of fieri facias against the Rockingham Turnpike Company for, &c., reciting the judgment, &c. And on this summons there is a return of the sheriff in the words stated in the answer. Upon this summons there are similar endorsements of the names of the parties and counsel, the nature of the case, and the proceedings in the cause to the judgment. And there is a copy of an execution upon this judgment, against the goods, &c., of R. A. Shands, which is endorsed—“to lie.”
It was in proof by one of the counsel who brought the suit of Grove against the Rockingham Turnpike Company, that after that judgment had been recovered, Shands requested him to sue out a suggestion upon the judgment against him; that he was indebted to the company, or had money belonging to it in his hands; witness did not remember which. Witness had the suggestion issued, Mr. Shands appeared in court in person and admitted his liability, and that witness took a judgment against him.
In August 1870 Mrs. Shands was directed to settle her accounts as executrix before a commissioner of the court; and the commissioner returned his report, bringing down the account to March 1871; at which date he reported the executrix to be indebted to the estate $1,969.83, of which $127.74 was interest. And that there were yet in her hands to be accounted for, county bonds $8,500, judgment v. county of Rockingham $6,500, and two other debts due to the estate from individuals, the amounts .of which were not given.
In October 1873 the report was by consent recommitted to the commissioner, to allow.the executrix to *prove, if she could, some extraordinary charges sustained by her in the settlement of the estate of Shands. And in August 1874, in vacation, on the motion of Andrew J. Rader, it was decreed that a commissioner of the court should take an account of the debts and liabilities of the estate of Shands, and their priorities, if any, of what real estate said Shands died possessed, and any other and further reports as any party in interest may require; four weeks’ notice to be given by oublication.
The cause came on to be heard on the 3d *215of October 1874; -when, nothing having been done under either of the two last orders, the court set them aside; and there being no exception to the report of the commissioner, it was confirmed, and there was a decree that Grove, for the benefit of Omohunder should recover of the defendant, Martha Shands, the sum of $763.36, with interest, &c. And thereupon Mrs. Shands, in her own right and as executrix of E. A. Shands, applied to this court for an appeal; which was allowed.
Robert Johnston and T. C. Elder, for the appellant.
Compton and William J. Robertson, for the appellees.
Anderson J.
delivered the opinion of the court.
This was a creditor’s bill brought by the appellee Grove, for the use of Omohunder, against the appellant Martha E. Shands, in her own right and as executrix of E. A. Shands deceased, to obtain satisfaction, out of the personal or real estate of said decedent, of a judgment which he obtained against him in his lifetime.
The said E. Grove held a negotiable note of the Rockingham Turnpike Cornpany, which he transferred *to Ornóla tinder; upon which note suit was brought against the said company, and judgment obtained in favor of Grove for the use of Omohunder. And afterwards, upon suggestion of the plaintiff that E. A. Shands had effects in his hands belonging to, or was indebted to, the said Rockingham Turnpike Company, which were liable by the fieri facias lien to satisfy his said judgment against the said Company, judgment was rendered in his favor for, &c., against the said E. A. Shands, in his lifetime, for the amount of his said judgment against the company; for the satisfaction of which judgment out of the estate of E. A. Shands, personal or real, or by the appellant in her own right, this suit was brought. Upon the settlement of the accounts of the appellant as executrix of E- A. Shands, it appeared that there was a balance due from her to the estate of $1,969.83; and a decree was rendered against her, in favor of the appellee E- Grove, for the use, &c., of Omohunder, for $763.36, the amount of the judgment, with interest and costs; from which decree she was allowed an appeal to this court.
The court is of opinion there is no error in said decree. It seems that the suggestion was made by the plaintiff at the instance of E. A. Shands, and that he was present in court and admitted his liability; and thereupon judgment was rendered against him. It is too late for his executrix now to object to the enforcement of the judgment by a court of equity, upon the ground that there Is not sufficient evidence of either judgment, after the acknowledgment of her testator of his liability to satisfy the judgment against the company, and allowing judgment against himself. Part of the records of the suit were destroyed by the public enemy daring the late war, but it seems that enough of the record was preserved to enable the clerk to ^certify copies of both judgments; and the court is of opinion that the evidence is sufficient.
Nor can she now object that no fieri facias ever issued upon the judgment against the company, so as to authorize the proceeding against her testator by suggestion, he having admitted his liability in open court when the judgment was rendered. But if a fieri facias had not issued, and her testator were not estopped, nor his personal representative, to object to the judgment on that ground, the objection could not be made in a court of equity. Her remedy was in the court of law, and the error, if it existed, might have been corrected on motion in the court which rendered the judgment, under chapter 177 of the Code of 1873.
If there was any defect in the service of the summons, which was awarded upon the suggestion, it could not avail the appellant, as it is in proof that the suggestion was made at the instance of the testator, who appeared in court and admitted his liability when the judgment was rendered.
The objection for want of parties, the court is of opinion, is not error for which the decree should be reversed. They were not necessary parties in this suit.
E. A. Shands was not proceeded against as the surety of the Rockingham Turnpike Company, but as its debtor. So there is nothing in the objection if it be law, that the appellee should have been compelled to exhaust the assets of the Rockingham Turnpike Company, before resorting to the estate of E. A. Shands.
The court is further of opinion that this proceeding was not barred by the statute of limitations.
We have thus, we believe, noticed all the assignments of error by the appellant in her petition. But her counsel in argument insists, that it was error to decree against the executrix, without first ascertaining “that the fund was sufficient to pay all the debts of her testator. This objection to the decree is first made in the appellate court, and in a supplemental brief of appellant’s counsel. The suit was brought by the plaintiffs, for themselves and all other creditors who should come in and contribute to the expense of the suit. No other creditors came in. And the appellant admits, in her answer to plaintiffs’ bill, that the personal property, including debts, which have and will come into her hands, will be amply sufficient to pay the remaining indebtedness of the estate. The court is of opinion, therefore, that the decree should not be reversed on that ground.
Upon the whole, we are of opinion to affirm the decree.
Decree affirmed.