
    *Tilson v. Davis’ Adm’r & als.
    July Term, 1879,
    Wytheville.
    1. G died early in 1849, leaving- a widow, T, and three Infant children, and in March, 1849, D qualified as his administrator. In March, 1851, D settled his account, and had for distribution $5,090.63; and having qualified as guardian of the children, he retained in Ms possession two-thirds of this sum as their guardian. He had in 1850 executed his bond for the. balance due to T, as widow. There is some uncertainty as to the provision of the bond, whether given to her as payment of the third due to her as widow, or as a mere acknowledgment of what was due to her: and whether It provided only for the payment to her of the interest during her life, and then of the principal to her children. In April, 1875, T Instituted a suit in equity against the administrator and sureties of D, to recover the amount of her interest in the estate of her husband G, and the sureties answered, insisting that T had accepted the bond of D in satisfaction of her claim, and pleading the statute of limitations — Held:
    1. Administrator’s Bond — Sureties — Novation. — If the bond was so given that T was only entitled to the Interest during her life, and then it was to go to the children, it was a novation of the debt due by D as administrator, and his sureties were not bound for the claim.
    2, Same — Same—Limitations.—That D having settled his administration accounts finally in 1851, and given the bond to T, if it was intended merely as an acknowledgment that that much was due to her, it was a settlement to the amount of the bond, and from the moment of its executi:n and delivery to T, right of action accrued thereon, and more than ten years haying elapsed before she brought her suit, his sureties are discharged from their liabilities by the statute of limitations. Code of 1873, ch. 146, §§ 8, 9. *2. At the time said suit was brought by T, there was pending in the same court a creditor’s bill against D’s adm’r and heirs, and in that case T had filed her petition claiming a share of the estate of one of her sons, who had died intestate, and this claim had been reported as a fiduciary debt; but she did not claim in her petition her share as widow of G. In this case there was a final decree directing the payment oi the fiduciary debts reported, and a distribution of the funds of D’s estate in the hands of the receiver, or which he should afterwards collect, pro rata among the general creditors. After this decree T filed her bill to subject a fund in tt e hands of said receiver, not yet paid out to the creditors, to the payment of her claim as widow of G — Held:
    
      i. Res Judicata. — That T having made herself a party in said creditor’s suit, without setting up this claim, she is concluded hy the final decree in said suit, and cannot set up a claim to the fund in the hands of the receiver.
    In 'April, 1875, Mrs. Ann Tilson -instituted her suit in equity in the circuit court of Wythe county, against Rufus Brown, as surviving administrator of Eli Davis, Elizabeth G. Gibboney, executrix of Robert Gibboney, deceased, John G. and Jos. M. Crockett, administrators of Allen T. Crockett, deceased, and John C. Graham. In her bill she stated that in 1849, Jacob Groseclose, of said county, departed this life intestate, leaving the plaintiff as his widow, and Eli Groseclose, George, and Jane, wife of H. H. Til-son, as his children and heirs and distributees. That on the 12th of March, 1849, Eli Davis qualified as administrator of said Jacob Groseclose, with John P. Matthews. Robert Gibboney, Allen T. Crockett and John C. Graham; as his sureties. That Davis took possession of the personal estate and sold it, and collected the debts; and in March, 1851, settled his accounts showing a balance for distribution of $5,090.63. Of this sum Davis, who had qualified as guardian of the three children, retained in his hands two-thirds, viz: $3,393.74J^; all of which- sum of $3,393.74^ had lately been adjudicated in the cases of Meek, guardian and als. *against Eli Davis’ adm’r and als. and Eli Groseclose a.nd al. against the same defendants^ in which the plaintiff recovered only her interest in the one-third share of said George her son, who died intestate and without issue; which two cases are referred to as exhibits. She further states that by the said settlement in March. 1851, there was due to her as the widow of said Jacob Groseclose, the sum of $1,696.87^, with interest from the date of said settlement, which is still due from said Davis and his sureties. That she purchased at the sale of the personal property made by said Davis as administrator to the amount of $943.28, which should be deducted, and the balance, with interest and costs of this suit, decreed to her.
    Plaintiff further states that after the death of Jacob Groseclose, she married Ransom Tilson, and he is dead; that Eli Davis died in 1861 or 1862; and stating the deaths of Matthews, insolvent, of Gibboney, and Crockett, and that the estate of Davis, both real ana personal, was, as she is informed, wholly exhausted by debt, and that nothing remains out of which her debt could be made, she calls upon the defendants to answer, prays that proper accounts may be taken, if deemed necessary; and that the said amount may be decreed to her from Davis’ estate if he has any, and if not, against his sureties; and for general relief.
    Graham and the executrix of Gibboney answered the bill in September, 1875. They insist that Davis having finally settled his accounts in _ March, 1861, and more than ten years having elapsed since that settlement, and the plaintiff having failed to collect said debt or attempt its collection in the mode prescribed by the statute, the same 'is barred by the statute of limitations as to them. They say further that if the claim is a fiduciary debt, there are ample means of Davis’ estate out of which it may be paid: That recently by the decree of this court in the suit of *EH Groseclose and others against Eli Davis, guardian and others, the real estate of Davis has been sold, and there is still a large fund under the control of the court, which they claim shall be appropriated to satisfy the plaintiff’s debt.
    Crockett’s adm’rs, who answered in December, 1876, after relying upon the same grounds, state further that they are advised there is pending in this court, in the name of Joseph Meek, guardian, &c., v. Rufus Brown, adm’r &c., a general creditor’s bill, the object of which is to distribute the estate of EH Davis, deceased, among his creditors, according to priority; that final decrees have been entered in said suit distributing said Davis’ effects; that Ann Tilson is a party petitioner in said suit; that she failed to assert the claim she is attempting to enforce in this suit, and they plead the decree in that suit as an estoppel, and vouch the record.
    The cause came on to be heard on the 23d of December, 1876, when the court, holding that, at the institution of this suit, there was pending in the creditor’s suit, having for its object the distribution of the estate of Eli Davis, deceased, among his creditors, and that the plaintiff was a party thereto, upon her own petition, to participate in the funds; that an account in that cause had been directed and confirmed, and the assets decreed to be distributed, without the „plaintiff ever setting up any claim to this debt, which, if presented by her, would have been paid, if just, as it was a preferred debt, dismissed the bill which costs, but without prejudice to the right of the plaintiff to such satisfaction of her demand against the estate of Eli Davis which may be distributed, but not against his sureties as administrator of said Groseclose.
    Upon the decision of the foregoing case, Mrs. Tilson, in February, 1877, filed her bill in the same court, setting out the facts of her claim as stated in the former case, and further saying that a final decree was rendered on the 18th *of September. 1875, in the case of Meeks, guardian’ &c., against Davis’ adm’r, and Groseclose v. the same defendant-; by which is reserved to any party the right to have said causes reinstated, and for relief; that while in said cause an account was taken by a commissioner of the debts due from Eli Davis, yet her dower interest, or one-third interest, in Jacob Groseclose’s estate was not taken, reported or in any wise passed on in said cases, and that is the purpose of this bill. She then refers to said report, which shows that the debts due to the three children of Jacob Groseclose aggregated $6,030.24,«and were the only fiduciary debts reported; that the receiver, Tsaac J. Leftwich, had paid the whole of the preferred debts, and there was still in his hands as receiver $1,225.64 due the estate for distribution to creditors. The residue of the debts reported by Commissioner Holbrook are simple contract debts.
    She further states that she made an effort to have her claim proven and allowed in said suit. She is old and confined to her house, and she asked her stepson, W. V. B. Tilson, to see to it, and she supposed he was employing James H. Gilmore for, this purpose, among others, but he simply turned over to Mr. J. W. Caldwell, as commissioner, a paper for proof, which was Davis’ own acknowledgment of the amount due the plaintiff on account of said Jacob Groseclose, deceased; and between Mr. Gilmore and Mr. Caldwell the paper was lost. She claims that her said debt is still due and unpaid; that it is a fiduciary debt, and she is entitled to have the said sum of $1,225.64, still in the hands of the receiver, Leftwich, applied to its payment. She makes Davis’ adm’r, all the second class creditors reported by Commissioner Holbrook, and Leftwich, the receiver, defendants, and prays that Leftwich be restrained from distributing any balance of the fund in his hands until the further order of the court; that she may have a decree for the amount due her, and that payment *may be made out of said fund in the hands of Leftwich.
    Leftwich demurred to, and answered the bill. He says that before he had heard this suit would be instituted he had collected the whole of the outstanding purchase money of the land, and out of the proceeds he had paid a debt to himself of $368.37, and to David Sexton $160.20, which debts were reported by the commissioner, and decreed to be paid. He insists the plaintiff is entitled to nil portion of her demand as against the fund in his hands. That she had settled her claim with Eli Davis, and had received his bond in full discharge of the balance due to her. That Davis was the brother of the plaintiff, and was at the time of this transaction and to the day of his death a man of large means, in full credit, and regarded as solvent as any man in Wythe county, and was only rendered insolvent by the exigencies of the war.
    He further says, that in the suit of Meeks, guardian, against Davis’ adm’r and others, the object of which was to distribute the estate of Davis among his creditors, the plaintiff was a party upon her own petition; that she adjusted in that suit the claim set up in the petition, and failed then to claim this debt against the estate of Davis, either as a prior lien upon the effects to be distributed, or pro rata. That a final decree had been entered in said suit distributing said Davis’ effects, and that she failed to assert the lieu she is now attempting to enforce. That plaintiff is estopped by the proceedings in that cause from setting up her demand in this suit, and he relies upon the estoppel.
    In the case of Meeks, guardian, v. Davis’ adm’r and others, a final decree was entered on the 18th of September, 1875, by which, after reciting that the preferred debts had been paid, and that the fund remaining in hands, or yet to be collected by the receiver, amounted to $1,398.05, after reserving enough to pay the costs of the suit, the *court decreed that the receiver Leftwich should pay out this fund ratably
    among the creditors of the second class reported by the commissioner. And the objects of this suit having been obtained, the cause is ordered to be stricken from the docket; but with leave to any party in interest to apply to this court to restore the same to the docket, if necessary for the enforcement of this decree.
    This cause came on to be finally heard upon, &c.. when the court dissolved the injunction which had been awarded the plaintiff to restrain the defendant Leftwich from any further distribution of the funds in his hands on account of the land sold, and dismissed the bill with costs, and from the decrees in both cases Mrs. Tilson obtained appeals.
    The facts as viewed by the court are presented in the opinion of the court delivered by Judge Anderson.
    Crockett & Blair, for the appellant.
    R. C. Kent and J. H. Gilmore, for the appellees.
    
      
      Res Judicata. — A judgment of a court of competent jurisdiction upon a question directly involved in one suit, is conclusive as to that question, in another suit between the same parties. Corprew v. Corprew, 84 Va. 599 citing Withers' Adm’r v. Sims, 80 Va. 651-8; McComb v. Lobdell, 32 Gratt., 185; Tilson v. Davis’ Adm’r, 32 Gratt., 92-103; Chrisman v. Harman, 29 Gratt. 499. See also 4.Min. Inst. (2nd. Ed.) 798 et seq.
      
      The principal case was distinguished in Shepherd v. Brown, 30 W. Va. 24.
    
   ANDERSON, J.,

delivered the opinion of the court.

This is an appeal from decrees in two suits in which the appellant was plaintiff, and, in ■one, the administrator of Eli Davis, deceased, and the sureties of said Davis, in his administration on the estate of Jacob Groseclose, were defendants; and in the other the said Eli Davis’ administrator, and his creditors were defendants.

The first suit was brought to recover the plaintiff’s claim against the administrator of Jacob Groseclose, her first husband, from his sureties — the estate of Davis being insolvent. This suit was dismissed by the decree of 23d December, 1876; but without prejudice to the right of the plaintiff to seek the satisfaction of her demand against the estate of *Eli Davis, which may be undistributed, but not against the sureties of said Davis as administrator of Jacob Groseclose.

The second suit was afterwards brought against Eli Davis’ adm’r, and his creditors to subject a fund which was in the hands of the receiver, I. J. Leftwich, for the satisfaction of her claim. This suit was also dismissed by the decree of 16th of March, 1878, on final hearing. And the appeal is from those two decrees. ’

When the appellant’s bill in the first suit was filed, there was a suit depending in the same court, in which Jacob Meeks, guardian. &c., was plaintiff, who sued for himself and all other creditors of Eli Davis, deceased, who would come in and participate in paying 'the costs of the suit; and Rufus Brown, surviving administrator, and the heirs of Eli Davis, deceased, were defendants. The appellant filed her petition to'be made a defendant in this suit, in which she sets up her claim against Eli Davis as administrator of her deceased son, George Groseclose, and refers to a decree of the court which establishes her claim as exhibit A in the cause, but which I have not been able to find in the record. But it is allowed by Commissioner Holbrook m his report, as established by a decree of the court in the suit of Eli Groseclose and ais. v. Davis’ adm’r, entered August 10, 1859, and the same was paid her out of the fund then in possession of the court. The plaintiff in her bill says those two suits were consolidated and heard together. But I do not find that it so appears in the record. And the claim in the Eli Groseclose suit referred to by the court, it seems, was entered years before the Meek’s suit was brought. But this is the only claim which the appellant made in that suit against the estate of Eli Davis. She set up no claim against Eli Davis as administrator of her first husband, Jacob Groseclose. If she had done so and proved it to be just, and that it was fiduciary, it would. have been put with the first class debts, *and the most, if not the whole of it would have been paid out of the fund then under the control and In the power of the court; and if not fiduciary, would have been paid pro rata with the second class creditors. But she made no such claim, although she was a party to the suit. Her petition was filed by order of the court on the 11th of June, 1872.

It was not until April, 1875. that she filed her bill seeking satisfaction from the sureties of Eli Davis. But at that time there had been no final decree in the Meeks creditors’ suit. It was still depending and undetermined and the final decree was not pronounced until the 18th of September. 1875. If, instead of bringing that suit, she had then, or any time before the final decree, filed her petition, setting up the claim of which she is now seeking satisfaction, it would have been in time to have saved at least a part of her debt. Mrs. E. G. Gibboney,_ executrix of Robert Gibbonev. deceased, did not prove her husband’s debts of $5,421.76 until September 17th, 1875, only one day before the final decree was entered, and it was allowed. But the appellant, who knew of that suit — -for she was a party to it — for some reason that is unexplained, preferred to pursue the sureties of Davis for her debt in a separate and independent suit, rather than to seek satisfaction out of the estate of Davis, the principal in a suit already depending, and In which she was a party.

Having made this statement of the case, we will first inauire whether there is error in the decree of December, 1876? That involves the question as to the liability of the sureties.

It is shown by the testimony of Mrs. Ann Tilsen herself that she received the note of Eli Davis, the administrator, for the balance due her from the estate. She had received before, in property which she had purchased at the sale, to the amount of $943.28. She thinks, and seems to be confident, that the writing was signed by him *as administrator. Mr. Davis was her brother, and was at the time a man of large possession, was regarded as a wealthy man, and had very great credit.

There is evidence strongly tending to prove that the bond or note was given in anticipation of her second marriage; that this inconsiderable sum might be secured to her use during her life, and not be reduced to the marital rights of a second husband by her contemplated marriage, and after her death to go to the children of Jacob Groseclose, from who-m it was derived. And this view receives support and countenance from her own testimony. In answer to the question, was the note spoken of turned over to her second husband after their marriage? she answers, “It was not turned over by me; I know that he was not to have it.”

Again she says, speaking of the note, “I saw it frequently while I had it. I kept it in a secret place, and examined it frequently while it was there, but finally missed it, but don’t know where it went.” W. V. B. Tilson, who, it was mentioned at the bar, is administrator of Ransom Tilson, his father, testifies that he found a note among his father’s papers signed by Eli Davis; says his recollection is it was for $810. Does not remember whether the note was payable to Ann Groseclose, or her heirs. Gave the note to Mr. Gilmore to collect the interest on it, which he understood was coming to his father during his life. Don’t remember whether it stated it was for her distributive share in Jacob Groseclose’s estate or not. Would not be positive it was not. Mr. Gilmore remembers Mr. Tilson giving him the note to place in the hands of a commissioner who was taking an account in some case in which Eli Davis’ estate was before the court in Wythe for settlement, so that his father’s estate could get the benefit of the interest on the note, he claiming that his father’s estate was entitled to the interest on it whilst he lived. He gave the note to Jos. W. Caldwell, understanding that he *was the commissioner, and has never seen it since. If the note had been executed to Ann Groseclose, and her husband had reduced it to possession, he would have been entitled to collect the principal as well as the interest, unless there was some stipulation on the face of the note that would make it uncollectible in the lifetime of his wife, or indicating that the principal was not due to her. His claiming the right to collect the interest only, and that limited to his lifetime, would imply that his wife was not entitled to the principal, but only to the annual interest. But this inquiry need not be pressed further. If this hypothesis should be received, it would establish a novation and conversion of the debt, and the sureties of the administrator would not be liable W it. It would have become the individual debt of Eli Davis, and he alone would have been liable for it; and there is very much in the facts and circumstances proved, which need not be detailed in this opinion, tending to show that Ami Groseclose, the sister of Eli Davis, took the writing in question from him as a permanent security for the balance due her from the personal estate of her first husband, and looked to him alone for payment. But if this be not so, it was a settlement of her interest in the estate, at least pro tanto, and her right of action accrued from the moment said note was delivered to her. And the evidence as to the amount of the note shows that it was for a larger amount than was actually due Mrs. Groseclose, as shown by the settlement of the commissioner. The facts proved by the appellant herself shows that the note was executed to her whilst a feme sole, and her subsequent marriage could not create a disability which would prevent the running of the statute of limitations. That a note was executed by Davis to the appellant before her second marriage, and whilst she was a feme sole, for a larger amount than was afterwards shown by the commissioner’s settlement was due her from the estate of Jacob Groseclose; and that she accepted said *note, and held it in her own custody for many years after her second marriage, and that it afterwards got into the possession of her second husband, and was found amongst his papers after his death, and that she regarded her interest in the estate as safely invested and secured by said note, long after it was received by her, are facts in the cause, well established by the testimony. If said note was given and received as a satisfaction in full of the appellant’s interest in the estate, the sureties were clearly discharged by it from their liability as sureties. And if it was not so given and received, but was intended only to be an acknowledgment by the administrator that so much was due her from the estate, it was a settlement at least to the amount of the note; and from the moment of its execution and delivery to the appellant, right of action accrued to her thereon, and more than ten years having elapsed before she brought her suit, his sureties are discharged from their liabilities by the statute of limitations on which they relied; and in whatever light said transaction may be viewed, (he sureties were relieved from their liability on the administration bond, and there is no error in the decree of 1876.

We have next to inquire whether there is error in the decree of March 16th, 1878, for which it should be reversed? This involves the question whether the plaintiff in this suit was concluded and estopped by the final decree in the Meeks’ creditor suit, to which she was a party defendant?

In the Duchess of Kingston’s case, 2 Smith’s Leading Cases, top p. 623, marg. 587, it is said. The rule laid down in the celebrated judgment of De Grey, C. J., is, that the judgment is conclusive between the same parties. And again top o. 624, it is held that the record of a verdict followed by a judgment in a suit inter partes will estop, first parties, second, privies. It is well established law that a final decree in chancery is as conclusive as a judgment at law. A verdict and judgment of a court of record or a decree in a court of chancery puts an end to all points decided between the parties to the suit. There is and ought to be no difference between a verdict and judgment in a court of law and a decree in a court of equity. They both stand on the same footing and may be offered in evidence under the same limitations; and it would be difficult to assign a reason why it should be otherwise. There is nothing anomalous or unusual in setting up a former adjudication as an estoppel to an action for equitable relief. The rule is a beneficial one, and it is a matter in which it is said the public has an interest as well as the parties, that there should be an end to litigation. Freeman on Judgments (2d ed.), § 248 — citing Sibbald’s case, 12 Pet. R. 488; Kirby v. Murphy, 26 Penn. State R. 78; Maguire v. Tyler, 40 Missouri R. 406; Smith v. Kernochen, 7 How. U. S. R. 198; Hopkins v. Lee, 6 Wheal. R. 100; Marsh v. Burroughs, 19 Amer. L. R. 718; San Francisco v. Spring Valley W. W., 39 Calf. R. 473; Crowdson v. Leonard, 4 Cranch’s R. 436; Lore v. Truman, 10 Ohio St. R. 45; and Wales v. Lyon, 2 Mich. R. 276, and numerous other cases. The case of Jones, &c. v. Myrick’s ex’or and Myrick’s ex’ors v. Epes & als., 8 Gratt. 179, is a decision of our own court, and settles the law of this state to be as it is declared to be by decisions of other courts in the cases cited.

That case strikingly resembles this. Both suits were in the same court, and in both of them creditors were seeking enforcement of their respective liens against the property of a common debtor. The suit of Myrick’s ex’ors v. Epes & others was brought first, on the 21st of June, 1828. and that of Jones v. Myrick’s ex’ors, was brought on the 27th of August of the same year. Myrick was plaintiff in the former, and defendant in the latter, and answered the bill of plaintiffs. The Epes suit, though brought last, was decided first. There was a final decree in it on the 11th *of April, 1834. The appellate court was of opinion that Myrick’s judgment lien on the proceeds of the sale of the Dinwiddie land, was paramo-ant to the lien of the schedule creditors, if ha had asserted it in the Jones v. Myrick’a ex’ors’ suit, before there was a fma^deerse in that suit — if he had asserted it in that suit, to which lie was a party, before the final decree., while the fund _ was in the hands of the sheriff, or otherwise in the control of the court. But Judge Baldwin, speaking for the whole court, said, “It was too late, however, at the hearing of the present suit in 1845, to subject the proceeds of the sheriff’s sale of the Dinwiddle land, whieh proceeds were recovered by the schedule creditors by the decree rendered in 1834, la the suit brought by Epes, &c. That decree is an insunerable bar to the pretension now made by the executors of Myrick, who was a party in that suit, to a recovery against the schedule creditors of the money paid to them, under the authority and by the direction of the decree of 1834. It was a decree not only upon the same matter, the apparent paramount lien and title of the schedule creditors in regard to the Dinwiddie land, which carried with it the negation of a paramount lien or title m all other persons; but it was a recovery of the identical subject, the proceeds of the sale of that land made by the sheriff. Nor was it the less decisive and conclusive (the court further says, that the money was not in the hands of Myrick, but in the hands of the sheriff, who held it subject to the control and decision of the court (of course until disposed of by final decree); nor that Myrick in his answer did not deny the lien or title asserted in the bill, and asserted no lien or title in himself; nor that the present suit was then pending, and the first brought, for it js not the institution of the suit, but the judgment or decree -therein, which concludes the rights of the parties. The pendency ot the present suit, however, serves to show, if that were material, that Myrick was not ignorant of his own paramount lien upon the *Dinwiddie land, but chose not to insist upon it, proposing and desiring, as would seem from his own bill, to obtain satisfaction of his larger judgment out of his debtor’s other lands.”

We have recited so much of the opinion of Judge Baldwin that the principle decided by that case might be accurately apprehended, and because his remarks are so apposite _ to the case in hand, that they might be applied to it by putting the name of the appellant in the place of “Myrick,” and receiver or commissioner in the place of “sheriff,” and Davis’ lands in the place of “Dinwiddie land,” except that the Meeks’ creditor suit had been determined by a final decree and stricken from the docket long before the second suit was instituted by the appellant, Mrs. Tilson, which is the only suit by which she sought to subject the proceeds of the sales of the Davis lands to the satisfaction of her debt — her first suit, as we have seen, being intended to recover the amount of her debt from Davis’ sureties. The Meeks’ creditor suit, in which she was a party, was determined by a final decree on the 18th of September, 1875, and stricken from the docket. And her bill, to subject the fund appropriated and disposed of by that final decree was not filed until the February rules, 1877. Like Myrick, “by her wilful waiver or gross neglect,” she submitted to the pretentions of other creditors of Davis, and so allowed the fund to be appropriated for their benefit, in the language of Judge Baldwin, “by an unreversed and irreversible decree.” She has lost her debt by failing to pursue the plain and obvious remedy by which it might have been secured, and this court has not the power to give her relief, however they would be inclined to it if it were in then-power. But to do so would be to divest rights which have been long vested, and to everturn the well established principles of law and equity. The decrees of the court below must therefore be affirmed.

Decree affirmed.  