
    *Pugh & al. v. Russell & als.
    September Term, 1876,
    Staunton.
    1. Decedent’s Estates — Priority of Creditors Previous to 1849. — Previous to the act in the Code of 1849, a judgment against a deceased person had priority over debts by simple contract, and was to be paid out of the personal assets, if these were sufficient for the purpose; and having been paid out of the personal assets, this did not give simple contract creditors a right to have the assets marshaled, and to have their debts paid pro tanto out of the real estate.
    2. Same — Same—Marshaling.—The payment of taxes due to the state out of the personal assets does not give a simple contract creditor a right to have the assets marshaled.
    3. Same — Same — Same. — Though simple contract creditors might before the act of 1850 be substituted to the rights of a creditor by bond binding the heirs, the doctrine of marshaling assets does not apply to a judgment.
    4. Same — Subrogation.—Before the act In the Code of 1840, if a judgment recovered against an executor or administrator upon the bond of the deceased, binding his heirs, was paid out of the personal estate, simple contract creditors might be substituted to the right of such creditor against the heirs.
    5. Same — Creditors —narshaling.—A commissioner, settling an administration account before a court of probate, states in his report that two of the credits allowed the executor were for payments of judgments, which were liens on the real estate. This is not evidence against the devisees to prove that the judgments were recovered against the executor upon a bond of the testator binding his heirs, and to entitle a simple contract creditor to marshal the assets.
    
      6. Same— Same — Statute of Limitations. — A j udgment is recovered against an executor by a simple contract creditor of his testator; and the creditor then files a bill against the devisees to marshal the assets, and snbj ect the land of the testator in the hands of the devisees. It must be presumed that his action was not barred by the statute of limitations when the judgment was recovered; and he is not therefore barred by the statute in his proceeding against the devisees to marshal the assets.
    790 T- Same — Same—Decree Separate. — There are two devisees, one of whom owns one-fourth of a tract of land, and the other three-fourths; and the land Is held to be liable to pay a debt of their testator. The decree should be separate against each for the payment of his pro rata share of the debt, with a reservation to the plaintiff to proceed against him for so much of the share of the other as cannot be made out of that other’s part of the land.
    Ivouis Wolfe, of the town of Winchester, died on the 10th of June 1850. By his will, which was admitted to probate oil the 1st of July 1850, he gave his estate except his library, to his sister Mary Wolfe for her life. He gave a tract of land to Sidney S. Richards, wife of H. W. Richards, for her life, and then to her children; to his niece Delia E- Pugh, wife of John R. Pugh, another tract of land for her life, and then to three of her children, naming them, and another tract to the said Delia E- Pugh for her life, and then to four of her children, naming them; and he gave another tract to Sidney S. Richards in fee. Mary Wolfe who was appointed executrix declined to act, and H. W. Richards qualified as administrator with the will annexed.
    In January 1854 Richards settled his administration account before the court of probate, showing a balance due him of $99.79; and the commissioner reported that three of the debts with which the administrator was credited as having paid, were debts “binding upon the real estate, as well as upon the personalty. ’ ’ These were state taxes paid December 1850, and January 1851, $34.11, an execution of Wm. B. Baker for $235.58, and one of Robt. B. Wolfe, cashier, for $195.90,both paid in June 1852. Neither of these entries show the character of the claim upon which the judgments were founded.
    In November 1853 Wm. G-. Russell recovered a judgment against Richards as administrator de bonis *non &c. of Wolfe, for $776.70 damages, with interest from the 11th of September 1850; and $86.80 costs; and execution haying been issued upon this judgment to be levied de bonis testatoris, the return of the sheriff upon it was, “.No property found. The administrator states he has no assets.”
    In November 1860 Russell instituted his suit in equity in the county court of Frederick, which was afterwards removed to the circuit court of that county, against the administrator &c. and devisees of Louis-Wolfe; deceased. In his bill he set out his judgment, the will of Louis Wolfe, the commissioner’s report stating that debts amounting to $469.59, which bound the land, had been paid by the administrator; and he stated that John R. Pugh was indebted to Wolfe for money paid by Wolfe for him in his life time, which had not been collected by the administrator. ,The prayer of the bill is, that the assets may be marshaled; that any balance of the personal assets may be applied to the payment of his debt, and that the real estate devised may be subjected to pay the remainder; and for general relief.
    John R. Pugh and Delia , his wife, and Charles Ginn and Mary C., his wife, who was one of the devisees, answered the bill. They denied that Louis Wolfe was indebted to Russell. They insisted that at any rate the judgment recovered by him was for services rendered, and was not evidence against them, and did not bind the real estate; and they relied on the statuté of limitations as a bar to his claim against them.
    John R. Pugh admitted that he was indebted to Louis Wolfe, for money' paid for him; but as a tract of land had been mortgaged to secure the said Wolfe, and had ’ been sold since. his death under a decree of *the court, he was not able to say what was the balance of the debt he owed.
    In March 1869 Rird & Carson were, upon their petition, made parties in the cause, as assignees of H. W. Richards, the administrator d. b. n. c. t. a., of the amount reported by the commissioner to be due to him.
    The cause was referred to a commissioner to enquire, among other things, what was the balance of the debt due from John R. Pugh to Louis Wolfe; whether the debt set up in the complainant’s bill for $776.70, with interest, &c., was a just debt and charge upon the estate of Louis Wolfe, deceased; and the present condition, amount, owners and annual value of the real estate of which said Wolfe was possessed at the time of his death.
    The commissioner made his report. He refers to the report of the commissioner made to the court of probate; says it seems to be correct, and that it shows that the administrator paid $465.59 upon debts binding the realty. He reports the balance of the debt due from John R. Pugh to Louis Wolfe at $515.48, with interest from January the 12th 1844 to October 31st 1859, $488.76— equal to $1,004.24. That a number of depositions were taken by him in relation to the plaintiff’s debt, which sustain it; and after crediting upon it a balance due from the plaintiff on account of the purchase money of the land given to secure Wolfe, of $172.96, he makes the plaintiff’s debt, principal and interest, on the 31st of October 1859, $1,116.43. He also reported as to the ownership and value of the lands of which Wolfe died possessed.
    The defendants excepted to the report; on the following grounds, among others:
    *1. In not allowing the statute of limitations; it being a new action against the devisees and subject to all de-fences.
    2. In adopting the judgment of the court in the suit against the executor, as the amount due against the devisees, without proof of the account.
    3. In reporting a joint liability, and not a pro rata responsibility.
    The commissioner returned with his report the depositions taken in relation to the plaintiffs’ debt. These depositions showed that Russell had for years attended to the business of Louis Wolfe, who was old and feeble, and in the opinion of this court the evidence sustained the claim.
    The cause came on .to be heard in January 1872, when the court being of opinion that the unadministered personal assets of Wolfe’s estate were sufficient to pay the plaintiffs’ debt, without passing on the exceptions to the report, decreed that Charles B. Hancock, the present administrator of Louis Wolfe, deceased, do proceed as administrator to collect the amount due from John R. Pugh to the estate of Louis Wolfe, deceased, and any other debts due the estate, and as a special receiver of the said circuit court to hold the sum of money so collected subject to the future order of the court. And he was authorized to take all steps necessary for this purpose at the costs of said Wolfe’s estate, and make report to the court.
    The cause came on again to be heard on the 19th of March 1874, when Hancock having reported that an execution against the goods and chattels of John ,R. Pugh was returned “no property found,” the court held that Russell was entitled to recover from the estate of Louis Wolfe, deceased, the sum of $776.70, with interest from September 11th, 1850, and $86.80 *costs of the common law suit, subject to a credit of $172.96, as of October 31st, 1859, being in favor of Russell of $1,116.43, with interest on $776.70 from October 31st, 1859. And it appearing from the report of the commissioner that the administrator of Louis Wolfe, out of the personalty of said estate, paid debts binding the realty to the extent of $465.59, it is held by the court that to that extent, and with interest upon the same, from the time of payment, the real estate of Louis Wolfe, deceased, must contribute to the payment of the debt of Russell. And the cause was referred to a commissioner to ascertain and report among other things — 1. Whether John R. Pugh, or his assignee or vendee, is possessed of any realty which is liable for the payment of the debt against him reported in this cause. 2. The exact amount and interest of the debts binding the realty, to which the personalty has been applied. 3. What the realty, and in what proportion the same is liable to contribution as adjudged in this decree.
    The commissioner reported — 1. That Delia E. Pugh and three of her children were dead; that the children died unmarried, childless and intestate, and John R. Pugh inherited three-fourths of the tract of land devised by Rouis Wolfe to said Delia E. and her children. 2. That from the report of the commissioner returned to the court of probate, it appeared that the following debts binding the realty were paid out of the personalty, viz:
    Taxes on lands and lots $34.11; amount of execution of William H. Baker $235.58; amount of execution of R. B. Wolfe, cashier, $195.90=$465.59. This amount is of January 1st, 1854. Interest from January 1st, 1854, to December 1st, 1874, $558.70. Amount and interest to December 1st, 1874, $1,024.29. 3d. *The land devised to Delia S. Richards and her children, and that devised to Delia E- Pugh and her children, each to bear one-half of the burden; and of the last John R. Pugh holds three-fourths, and Susan C. Pugh the other fourth.
    The cause came on again to be heard, when the court confirmed the report of the commissioner, and decreed that unless within thirty days from the rising of the court, Susan C. Pugh and John R. Pugh should pay to John J. Williams and R. T. Barton, who were appointed receivers to collect the same, the sum of $232.79, with interest from January 1st, 1854, commissioners named should proceed to sell the farm described in the commissioner’s report at public auction, on terms stated in the decree; and unless John R. Pugh should in thirty days, &c., pay to the same receivers the sum of $1,004.24, with interest on $515.-48 from October 31, 1859, the said commissioners should sell his interest in said farm. And a like decree was made against Charles R. Ginn and wife and Rewis Richards as to the same sum of $232.79 and like interest. And thereupon John R. Pugh and Susan C. Pugh applied to a judge of this court for an appeal; which was allowed.
    Tucker, for the appellants.
    Barton & Boyd and Williams & Williams, for the appellees.
    
      
       Decedent’s Estates — Priority ot Creditors Previous to 1849. — The principal case is cited in Alexander v. Byrd, 85 Va. 700, 8 S. E. Rep. 577; Harper v. Vaughan, 87 Va. 431, 12 S. E. Rep. 785; Brewis v. Lawson, 76 Va. 44; Saddler v. Kennedy, 26 W. Va. 640: See Va. Code, § 2665.
    
   Staples, J.,

delivered the opinion of the court.

The act of March 1st, 1842, was the first statute of this state making real estate assets for the payment of simple contract debts. That act, however, was subject *to a proviso, which declared that no debt which is not evidenced by writing, signed by the debtor or some person legally empowered by him, shall be charged on the real estate by virtue of this act. This proviso was omitted at the revisal of 1849, so that as the law now stands, the real estate is subject to the payment of all the just debts of the decedent, without qualification.

In this case, the judgment of the appellee, Russell, against the administrator was upon a claim not evidenced by writing. That claim was therefore not a charge upon the real estate under the act of 1842, nor does it constitute such charge under the Code of 1850, because the debtor died before the revisal took effect. This was not seriously controverted in the argument. The appellee claims that inasmuch as judgments which did constitute liens on the real estate of the debtor, were paid by the administrator of the latter out of the personalty, he is entitled, upon the principle of marshaling assets, to be subrogated to the lien of the judgments thus paid.

It is a well settled doctrine of equity, that if a specialty creditor, whose debt binds the heirs, receives satisfaction out of the personal assets of the decedent, a simple contract creditor will in equity stand in his place against the real assets, to the extent that the specialty creditor shall have exhausted the personal assets in the payment of the debts. The reason is that when there is both real and personal assets, creditors by specialty, in which the heirs are bound, are by the common law entitled to payment out of either of these funds. At law they may take their remedy against the heir, or against the executor. Having their election of remedies, if they exhaust the only fund to which the simple contract creditors can apply, equity places the latter in the position of the former, so far *as the specialty creditors have exhausted the personal estate. 2 Ro-max on Executors, pp. 418, 419.

The question is whether this principle applies to a creditor having a judgment recovered in the life time of the debtor: under the law, as it stood previous to the Code of 1849, a judgment was a debt of superior dignity in the administration of the personal estate. It also constituted a lien upon the real estate, but it conferred no right of election, as in the case of a specialty binding the heirs. The creditor was bound to exhaust the personal estate before he could resort to the land in the possession of the heir. The judgment being a debt of higher dignity than bonds or simple contract debts, the executor was required to pay the former before the latter. If the personal estate was exhausted in paying the judgment, the simple contract creditor was utterly without remedy. And this was upon the very absurd principle that the right of subrogation only occurs where one of the creditors has two funds, upon either of which he may rely at his discretion.

This is the view taken by Judge Uomax in his work on Executors, volume 2, page 419, where it is said “In the application of the principle of marshaling assets, simple contract creditors will be substituted for specialty creditors, but not for judgment creditors; that is, the simple contract creditors cannot charge the lands for so much of the personal fund as has been applied to the payment of the debts due by judgments obtained against the ancestor. ’ ’ In support of this doctrine he quotes the opinion of Chief Justice Marshall in Alston v. Mun-ford, 1 Brock. R. 266, who declared “there is not a case in the books, nor a dictum on the bench, in which it is said that simple contract creditors may stand in the place of judgment creditors, who have ^exhausted the personal fund, although the principle of marshaling assets has been discussed perhaps as frequently as any other on which a court of equity acts.” This decision of Judge Marshall is approved by this court in Rogers v. Denham’s heirs, 2 Gratt. 200. That was a scire facias against the heir to revive a judgment recovered against the ancestor. This court was unanimously of the opinion that as the object of the scire facias is to give the creditor the benefit of his judgment obtained against the ancestor, and as upon a writ of elegit against the ancestor the chattels must first be delivered, and if they are sufficient, the lands are not extended, the judgment after the decease of the ancestor must affect his lands in the same way. The personal estate.should be first charged, and the judgment creditor should not proceed against the heir or. terre-tenants until he has exhausted the same. Upon these authorities the question must be regarded as settled in Virginia.

In the present case the appellee claims to be substituted in the place of William H. Baker and Robert B. Wolfe, creditors of the decedent, whose debts were paid out of the personal assets in the hands of the administrator. Whether the judgments in favor of these creditors were recovered in the lifetime of the decedent, or against his administrator since his death, does not appear. In an ex parte settlement of the administration accounts, made in the year 18S4, the commissioner mentions these debts as binding on the realty. And this is all we have on the subject in this record.

It is impossible to say whether this opinion of the commissioner, for it is a mere opinion, is “well founded or not.” He may have supposed that a judgment, prior to the Code of 1849, constituted a lien on the debtor’s *real estate; and so it did, subject, however, to the qualifications already mentioned.

The judgment might be a lien, and yet, as we have seen, furnish no ground for marshaling the assets. If the judgment was against the obligor himself, upon a specialty binding the heirs after the death of the former, there would be no remedy against the heir upon the specialty. The bond no longer exists as a security, being superseded, merged and extinguished in the judgment. The creditor has no longer a remedy either at law or in equity on his bond, but only on his judgment. The obligor is no longer bound by the bond but by the judgment. It has become the evidence of his indebtedness and the measure of his liability. The United States v. Price, 9 How. U. S. R. 93, 94; Smith’s Lead. Cases, vol. 1, part 1, 619; 2 Am. Head. Cases 663.

On the other hand, if the judgment was against the administrator, it would not merge the bond as against the heir. If originally bound by the specialty, he, the heir, would still be bound. And the creditor is at liberty to prosecute a suit against him and the personal representative at the same time, though he is of course entitled to but one satisfaction. It will thus be seen that the lien of a judgment is a question of law, and was sometimes a very difficult one under our former system of laws. If the judgments alluded to by the commissioner in his report were recovered in the lifetime of the decedent, as there is strong reason to believe, they will not avail the appellee. If they were recovered against his administrator upon a bond binding the heirs, the liabilities of the latter still remain ; and there is a right of substitution.

Upon these points the appellee ought to have produced proof. The burden is of course upon him, to *show that the heirs were bound. The simple expression of an opinion by the commissioner in an ex parte settlement is not evidence against the heirs. The exception of the appellants was therefore well taken, and ought to have been sustained. The case will have to go back to the circuit court ttpon this point, and a decree accordingly.

In regard to the taxes against the decedent, it is sufficient to say that while the commonwealth has a lien for them on the lands of her debtor, that lien can never be enforced so long as there is personal property. The latter must be exhausted before the land is delinquent or liable. The personal representative is required to discharge the taxes before the payment of any other debt. As already seen, the doctrine of marshaling assets has no application to such a case.

Another ground taken by the appellant is, that the judgment recovered by the ap-pellee against the administrator is not competent proof of the justice of the claim as against them; and further, the claim is barred by the statute of limitations. In answer to the first ground it is sufficient to say, that evidence was adduced before the commissioner establishing the justice of the appelles’ demand. In regard to the plea of the statute of limitations: as judgment was recovered against the administrator, it must be presumed the claim was not barred at the time of the institution of the suit against him. The appellee was entitled to satisfaction of that judgment ■out of the personal assets. These being exhausted by specialty debts binding the heirs, and the appellee being compelled to resort to the land, his remedies against the latter must be co-extensive with those against the personalty. If, at the time of the institution of his suit against the personal representative, the appellee was not barred of *his action by limitation, neither is he barred by subsequent lapse of time, in proceeding against the heir to have the assets marshaled in his favor. If, therefore, the appellee makes good his claim to subrogation in this case, the appellants will be precluded from relying upon the bar of the statute. Adams’ Equity, marginal page 275, and note.

Another ground of error assigned is, that by the decree of the circuit court the appellant Pugh is directed to pay the sum of $1,004.24, without sufficient evidence of the justice of the debt. The objection is made for the first time in this court. This demand was investigated by a commissioner, to whom the accounts were referred; and was allowed by him. No exception was taken to the allowance; and it does not appear that the matter was in any way called to the attention of the circuit court. It was the duty of the appellant to except to the report. Upon that exception all the evidence in support of the claim, or against it, would have been returned to the court, and it would have been seen upon what ground the commissioner proceeded. Upon well settled principles, the exception which may be affected by extraneous evidence cannot, for the first time, be taken in this court.

The only remaining ground of error necessary to be noticed is that portion of the decree which directs a sale of the land, without reference to the several interests of the appellants. One of the appellants is the owner of one-fourth of the land and the other of three-fourths; and it is insisted that each should have been allowed to redeem his or her share by paying in the same proportion.

When the decree is against several parties having separate and distinct interests, and there is in the case *the materials for a just apportionment, such apportionment ought to be made; with a reservation to the creditor of a right to resort to all who are responsible to him. In the present case the decree ought to have provided for the payment of one-fourth of the appellee’s judgment by the sale of the appellant, Susan C. Pugh’s, interest, and of three-fourths by the sale of the appellant, John R. Pugh’s, three-fourths; with a reservation of the right to resort to the whole of the tract, in the event of a deficiency. As the cause is to go back to the circuit court for further proceedings, the decree can be reformed in this particular, and in accordance with the views herein expressed.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decrees aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing, and filed with the record, that it does not sufficiently appear whether the judgments in favor of William H. Baker and Robert B. Wolfe were recovered in the lifetime of Louis Wolfe, the debtor, or against his administrator since his death. If the former, said judgments conferred upon said Baker and Wolfe no right of proceeding against the lands of said Louis Wolfe until the personal assets in the hands of his administrator were exhausted; and as the said Baker and Robert B. Wolfe had in such case no right of election between the real and personal estate, the appellee, Russell, is not entitled, upon any principle of subrogation, to subject the real estate of the said Louis Wolfe to the payment of his debt. If, on the other hand, the judgments aforesaid were recovered against the administrator of said Louis Wolfe upon specialties binding the heirs of the latter, the appellee, so far as the personal estate was exhausted in the payment of said judgments, is entitled to satisfaction out of the realty of which Louis Wolfe died possessed. Upon these points the record furnishes no satisfactory information to justify a decree against the appellees. The same principles substantially apply to the taxes due the commonwealth, which constituted a lien upon the land of the said Wolfe, only to be enforced after the exhaustion of the personal estate. The appellee was therefore not entitled to subrogation in place of the commonwealth.

The court is further of opinion that the circuit court erred in subjecting the tract of land in the possession of the appellants to the debt of the appellee without apportioning the burden between the parties. The appellant, Susan C. Pugh, being the owner of only one-fourth of the tract, and by reason thereof being subject to only one-fourth of the debt in the first instance, the decree ought to have directed the sale of the said one-fourth accordingly, and of the three-fourths held by John R. Pugh, for his three-fourths of said debt, with liberty, however, to proceed against the interest of either for any deficiency in the proceeds of sale.

Therefore it is decreed and ordered that so much of the said decrees of the said circuit court as is herein declared erroneous be reversed and annulled, and that they be affirmed in all other respects; and that the appellees pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is further decreed and ordered that this cause be remanded to the said circuit court for further ^'proceedings to be had therein in conformity with the foregoing decree.

Which is ordered to be certified to the said circuit court of Frederick county.

Decree reversed.  