
    Nashville.
    1812.
    JAMES SNEED v. MAYFIELD’S HEIRS.
    
      \ >- Case adjourned from Williamson.
    It is a good plea to a scire facias against heirs upon a judgment recovered, on a bond for . title of the ancestor, against the personal representative, that the bond had been, after the death of the ancestor, assigned to one of the heirs, for by such assignment the remedy at law was extinguished.
    Upon a scire facias against the heir in such case, he may make any defence that might have been made by the executor or administrator. [Acc. Gilman v. Tisdale’s Heirs, 1 Y. 288; Greer v. Sharer, 3 Hum. 142, note.]
    SoutheRland Mayfield in his lifetime executed a penal bond to one Smith, conditioned for the conveyance of a certain tract of land as soon as a grant could conveniently he procured from government. This property was afterwards assigned by Smith to oné Byrne, and by Byrne assigned to John Mayfield, one of the defendants and coheirs of Southerland May-field, deceased. After the death of S. Mayfield, the County Court of Williamson granted letters of administration of his estate to tine said John Mayfield. The bond assigned by Byrne to the said John was by him assigned to James Sneed, the plaintiff, by whom an action of debt was brought on the bond against John, as administrator, and a judgment was recovered for $ 150 ; but upon the plea of. plene administravit being found for the administrators, Sneed, agreeably to an act' of the general assembly in such cases made and provided, sued out a sciré facias against the heirs of S. Mayfield, in order to make the real estate liable for the debt.
    Upon the heirs being brought in they pleaded,
    1. That no claim was made upon the bond within seven years after the death of S. Mayfield ; and that, therefore, by virtue of an act of Assembly passed in North Carolina in the year 1715, in force and use in this State, the plaintiff was forever barred. 2. That at the time the assignment was made to John Mayfield, and at the time he assigned the same to the plaintiff, the said John Mayfield was one of the heirs of S. Mayfield, deceased; and that consequently the bond by such assignments became void. To both these pleas there was a general demurrer.
    Several other pleas were filed, amounting in all to eight; but it is not thought necessafy to set them out, inasmuch as the whole argument turned upon the two above mentioned.
    
      Cooke, for the plaintiff.
    The Act of 1715, which is relied upon by the defendants in substance, provides, “ th^t if the creditor or creditors of any deceased person shall not make his claim within seven years after the death of such deceased person, the claim of such creditor or creditors shall be forever barred both in law and equity.” Ird. Rev. 30. If there never had been any legislative provision on this subject afterwards, there could be no doubt but that the claim of the plaintiff would be barred. But by the 2d section of the Act of 1789, Hay. Rev. 169, I contend that the Act of 1715 is repealed. The section alluded to enacts, “that the creditor or creditors of any person deceased, if he or they reside within this State, shall, within two years, and if they reside without the limits of the State, shall, within three years from the qualification of the executors or administrators, exhibit and make demand of their-respective claims, &c. and if any creditor shall hereafter fail to demand and bring suit for the recovery of his or her demand within the aforesaid time, he shall be forever barred from recovering the same, &c. And the 6th .section of the same Act further provides, “ that all laws and parts of laws that come within the purview and meaning of this Act, are hereby declared void, and of no effect.” Hay. Rev. 170. There are several ways of effecting a repeal of an act of Assembly: 1. By express words; 2. By making another act upon the same subject, the provisions of which are inconsistent with the first; and 3. By making another law on the same subject, the provisions of which are consistent with the first, but containing a repealing clause like the one in the present case. 2 Hay. Rep..227 ; 2 Cranch, 272. The Act of 1715 was a legislation upon the subject of dead men’s estates; so was the Act of 1789 : and the latter by making a different provision on the same subject, and containing the clause of repeal before mentioned, operates as a virtual repeal of the former. I am apprised that the State courts of North Carolina have given a different determination ; but the same matter has also been before both the Federal Court in that State and the Supreme Court of the United States, and the decisions in both instances were that the Act of 1715 was repealed. 2 Hay. Rep. 227; 2 Cranch, 272. It is true the legislature of North Carolina in the year 1799 declared that the law of 1715 was not repealed by the Act of 1789, but I humbly submit to this Court that they had no right to pass any such law. The Constitutions of North Carolina, as well as Tennessee, have wisely separated the legislative and judicial powers. The Act of 1715 was either repealed or it was not; in either case the matter could alone be determined by our courts of justice, and it was not the province of the Legislature to interfere. 2 Cranch, 272.
    I will also suggest that this is a thing of which the heir cannot take advantage upon a scire facias. The law of 1778 which ¡provides this remedy against the heir, specifies that he shall be at liberty to contest the truth of the plea of plane administravit found in favor of the administrator, from which I argue that this is the only thing he can dispute in relation to the propriety of the judgment against the administrator, particularly where there is no suggestion of fraud or collusion.
    
      The assignment of the bond to John Mayfield, although after the death of Southerland Mayfield, did not render it void.
    
      Dickinson, for the defendants.
    I am willing to admit that the law of 1715, so far as it relates to executors and administrators, is repealed; but so far as it relates to heirs, it never has been repealed. The Act of 1789 nowhere mentions heirs, and surely it will not be contended that the' law of 1789 repeals the law of 1715, farther than they in common make provisions on the same subject. The last Act is by express terras confined to executors and administrators, and was intended solely to relate to them. It says that the creditor shall, within three years after the qualification of the executor or administrator, prosecute his claim. This may be enacting a new remedy against the class of persons it expressly mentions ; but it leaves heirs upon the same footing that they were placed by the law of 1715. Were a different construction to prevail, heirs would in every case be left solely at the mercy of the creditors; their protection being wholly destroyed, if the Act of 1715, as it relates to them, is repealed.
    The heirs are bound by the judgment in the suit against the administrator. The Act of 1784 did not intend to restrict the defence which might be made by the heirs; it only was intended to secure the right of contesting the plea of •plane administravit, at all events. In truth the heirs are at liberty to contest the justice of the original demand, or to show in any way that they are not responsible for the claim ; and the reason of this is to prevent fraud and collusion between the creditor and the administrator. 2 Hay. Eep. 187, 193, 201.
    ■ I contend also that the assignment of the obligation to John Mayfield, he being at the time of the assignment a coheir, operates as a payment. Suppose John Mayfield had not assigned the obligation to Sneed, what remedy could he have to enforce the payment by a suit on the bond ? None. The assignment of a bond to a co-obligor destroys the remedy on the bond; and the reason holds equally good where the assignment is to a coheir. In neither of the cases can the assignee maintain an action on the bond ; because, if he could, he would appear in the double capacity of plaintiff and defendant; he would have to sue himself. 2 Yes. 569, 570; 8 Co. 35. If, then, John Mayfield could not have maintained an action on thé bond, his assignee cannot be placed in a better situation; for he could not confer on another greater rights than he enjoyed himself. And if the right to sue upon the bond was suspended, as it clearly was while in the possession of John Mayfield, there can be no doubt but that the remedy is gone forever. 2 Dyer, 140, a ; 2 Johns, 471. It appears also in the record that John Mayfield only gave the sum of one hundred dollars for the bond; at the utmost the heirs cannot be liable for more; because it has been settled that where an heir buys in an encumbrance for a less sura than is due, he shall only receive from the other heirs their proportion of the sum paid. 1 Yern. 49.
    
      Ooolce, in reply.
    Whatever sum of money was paid by John Mayfield to the person by whom the bond was assigned to him can form no controversy at this time ; because, upon this plea, there is an issue of fact made up, which this Court cannot now decide. I shall only therefore, on this part of Mr. Dickinson’s argument, remark that there are a variety of cases where the heir, buying in an encumbrance for less than is due, may compel a payment of the full amount; and the Court cannot now say but what this case is one of them. 1 Yern. 49.
    If the Act of 1789 repealed that of 1715 as to executors and administrators, it must of necessity have repealed it as to heirs also. The act of 1715 contains but one clause, in which neither executors, administrators, nor heirs, are mentioned; it was only a provision about the estate of deceased persons ; and it follows, as a necessary consequence, that when a subsequent act made a different provision on the same subject, if a part of the first law was thereby repealed, that the whole was. The section in the law of 1715 is not capable of division ; it contains but one entire matter.
    I will not deny but that an action on the bond could not have been brought by John Mayfield. However, as he had an equitable, and indeed a legal claim upon his coheirs in another form of action, might he not transfer the bond to a third person, who would thereby have a right to sue on it ? At all events, there is no doubt of this, that the bond, even in the hands of John Mayfield, would compel the payment of what was due on it; for although he could not bring a suit on the bond, yet he might bring an action of indebitatus assumpsit, and recover the full amount of the proportions, of the balance of the heirs. 2 Yes. 569, 570. And it is not questioned but that Sneed stands in as good a situation as his assignor. The question will then arise, how far the heirs in a case like the present can question the form of action brought by Sneed ? Whatever defence might have been made to the form of action, viz. debt, by the administrator in the action against him, or however the heirs, upon a scire facias, may be at liberty to question the right of recovery at all, can form no consideration here. To tell Sneed that he ought to have brought case and not debt against the administrator, is very different from telling him that he cannot recover in any form of action. The heirs are nof injured ; there is a remedy, by pursuing which they would be liable. And when the debt is a fair one, it does not lie with them to say that Sneed brought a wrong form of action against the administrator. Whether case or debt was the action is to them wholly immaterial; it cannot injure them.
   Overton, J.

delivered the following opinion of the Court:—

The pleadings in this case present the following statement: Southerland Mayfield, in his lifetime, to wit: on the 7th day of May, 1785, gave his bond, binding bimself, his heirs, &c. in the penal sum of 2007 Virginia currency, conditioned, to make Thomas Smith a title to 100 acres of land. Smith assigned the bond to James Byrn, on the 21st of November, 1804. Byrn, on the 29th of August, 1806, assigned it to John Mayfield, one of the heirs of the obligor, by whom it was afterwards assigned to the plaintiff; and after this assignment, from John Mayfield to the plaintiff, the assignor, Mayfield, took out letters of administration on the estate of his deceased father. Sneed, the plaintiff, then brought suit against him as administrator. Plene administravit was pleaded and found for him ; damages were assessed by a jury, and judgment, quando acoiderent, taken against him as administrator. A scire facias issued agreeably to an act of Assembly, against the heirs, to show cause why the debt should not be made from the real assets descended. To this action, the defendants, George and James, pleaded, jointly, eight different pleas; but as only the first and fifth pleas, which are demurred to, are brought before this Court, the others will pass unnoticed.

The first plea asserts that the plaintiff, or those under whom he claims, did not make claim within seven years after the decedent’s death, and therefore the claim is barred.

The Court in this cause, deem it unimportant to inquire whether the Act of 1715, referred to at the bar, intended to embrace demands against heirs or not. They will only say, that if it did, the Act of 1789 does not seem to repeal it as to heirs.

The substance of the fifth plea is that the transfer of the bond to John Mayfield, one of the heirs, extinguished the debt.

On the other side, it is insisted, that the heirs are not competent to plead this matter; that the Act of 1784, having provided that an heir may contest the truth of the plea of plene administravit, pleaded by an executor or administrator, implies that it was the meaning of the Legislature, no other matter should be brought into contest by the heir, on a scire facias, after the passage of the Act.

The Court dissent from this reasoning, and believe it to have been the intention of the Legislature not to have taken away any legal privileges which the heir possessed before. Lest it might be supposed that the heir would be concluded, by the finding of a jury, upon an issue joined between the claimant and the personal representative, the Legislature, to remove all doubt on that subject, enacted that the finding of no personal assets in a suit over which the heir had no control, shall not affect his rights. Res inter alios non nocet is not only a maxim of the common law,' but of the law of nature. On this ground, therefore, the plea was proper.

In relation to the matter of the plea we are of opinion it is sufficient to bar the plaintiff. When John Mayfield obtained the interest of this bond, he, together with his two brothers, were jointly liable to satisfy it. From the pleadings, it appears, there was no personal assets; - the heirs were particularly named in the obligation, and were liable by the common law. The transfer to John Mayfield, under the circumstances disclosed in the pleadings, amounted to a payment, satisfaction, or extinguishment. At this time there was no person against whom he could bring his action on the bond. The right of action, on the bond, was at least suspended ; and, once suspended, it never could be revived. 2 Dyer, 140, a.. It has, however, been contended, by the plaintiff’s counsel, that there was only a suspension of a particular remedy; and that although the remedy on the instrument may be extinguished, there was one existing, either in law or equity, or perhaps in both, after the assignment to John Mayfield. 2 Ves. 569. It is sufficient for the Court to say that the present action is founded mediately on the bond. In law, and on this bond, the remedy was lost by the assignment to John Mayfield. The demurrer to the fifth plea must therefore be overruled; and judgment given for the defendants.  