
    Vick v. House and Selsen, Administrators.
    Under the statute, Revised Code, 44, sec. 57, an executor or administrator is not liable beyond the amount of assets for any omission in pleading, mispleading or false pleading. Nor is an executor or administrator bound to plead specially, but may give any matter in evidence under the general issue.
    It seems, that under our law, nothing will be deemed sufficient to create'a presumption of assets.
    The decree of a court of equity directing that the complainant recover a sum certain of an administrator, and have execution of the goods, &c., of the intestate in his hands to be administered, &e., was held alone not to be sufficient evidence to establish a devastavit.
    
    ERROR to the Hinds circuit court.
    This cause was tried before the Hon. James Scott, at the March Term of said court, 1835.
    Plaintiff brought his action of debt upon the decree of the court of equity. The declaration was in the" debet et detinet, in the ordinary form, averring the performance of precedent matters upon a decree rendered in the chancery court at Clinton, to this effect: “ And the chancellor doth further order, adjudge, and decree, that the said Burwell Vick do recover of and from the said Drusilla House, administratrix, and Isaac W. Selsen, administrator as aforesaid, the sum of one thousand, eight hundred and seventy-four dollars, upon his filing among the papers in this cause, a quit claim deed for the land, more particularly described in exhibit A; that being the same land for which the note, a copy of which marked exhibit C. was given; being the amount paid by complainant on the said note, inclusive of interest thereon to the present time. And that the complainant have execution thereof, against the-goods and chattels of said Archibald Douglass, in the hands of said administratrix and administrator, to be administered, upon his executing the quit claim deed aforesaid, to the heirs and representatives of the said Douglass.”
    
      “ And the chancellor doth further order, adjudge, and decree, that the defendant do pay to the complainant his costs in the above suit to be taxed, and that the complainants have execution therefor.”
    The declaration averred that the judgment was in full force, and that the plaintiff had never had execution.
    The defendants pleaded a variety of pleas, demurrer to all of which was sustained, except to the plea of not guilty; upon which the parties went to trial.
    ■The plaintiff read in evidence the recovery in the chancery-court, which was all the testimony adduced in the cause.
    The counsel for the defendants moved the court to instruct the jury that:
    1. It was necessary that there should be evidence of a devasta-vit in this case to authorise the jury to find for the plaintiff.
    
    
      ' 2. That the record of the chancery court was not evidence, of itself, of a devastavit.
    
    To these instructions the plaintiff objected and excepted before the jury retired. Verdict and judgment were rendered for the defendants.
    Rives and Hughes, for plaintiff in error.
    Before investigating the questions which arise upon the instructions given by the court below to the jury, it will be well enotigh to dispose of a preliminary question which it is understood was made below. That is, was the deed executed, the filing of which among the papers in the cause in the chancery court, was a condition precedent to the full operation of the decree for the money, that is now attempted to be enforced in this action? This embraced two questions of fact.
    1. Was the deed executed?
    2. Was it filed in the papers of the cause? These two will be disposed of together.
    The deed was executed; it appears to have been signed in the presence of two witnesses, and further was acknowledged before a justice of the peace, and certified by him according to law. But it was objected, that there could be no execution of a deed, unless it was delivered to the bargainees. In answer to this objection, we say that all that was required of us to entitle us to the judgment or decree, was a filing of the deed among the papers of the cause. But again, it is said, that there was no proof of the filing except the certificate of Colonel Hadley, the clerk to the record, or that of his deputy upon the deed, and this is not proof. The clerk or his deputy should have been produced to testify to the fact certified to. To this we answer, that the fact of filing the deed was a condition precedent, which, by the decree when done, completed the decree, and when done the paper like all others papers in the cause, such as bill, answer,,&c., became a part of the record, and as such the certificate of the clerk in reference to the filing- of it, is an official act to which the court are bound to give credit, in the same manner as to the certificate in the record of the filing of the bill. Again it is said, that the deed filed is not such a one as is prescribed by the decree; that the decree required a quit claim deed to the “ heirs and representatives,” and here is oiré to the heirs, administrators, and assigns.
    This deed is clearly a compliance with the requirements of the decree. The heirs of Archibald Douglass were not parties to the decree, nor was it necessary that they should háve been. The object of the chancellor in making the decree was, as he had given the complainant the money which he had paid, to let the heirs, if they should at any time after be enabled to make out a title to the land, have the benefit of such title, clear of any secret or ‘latent equity on the part of Vick; and the substance of the requirement of the deed was a relinquishment by deed, which would forever bar and estop him from making claim to the land. It certainly never could have entered the mind of the chancellor, that such a deed could be operative to convey title, because of several considerations. First, the complainant had only the bond of Douglass for title. Secondly, the proceedings and decree in the suit showed that he had not, and could not obtain title. The substance of the thing, therefore, having been performed, to wit, a paper having been duly executed, which will operate as an estoppel, the decree is complete and vests a right in the complainant to the money, the subject of the decree on the subject of estoppels. See 4 Comyn’s Dig. tit. Estoppel, (A 2) page 200, (D) 204; 12 Johns. Rep. 201; IS Johns. Rep. 316; 14 Johns. Rep. 110.
    Now to the charge given by the court to the jury, and which was clearly the reason of the verdict for the defendant. This charge, at the first view, would appear to be correct, but by a more attentive 'consideration of its terms, it is believed that it will be found to be incorrect in every particular. It is admitted that a recovery could not be had without proof, either of an actual devastavit, or facts or matters from which the court would be bound to draw the conclusion that there was a devastavit. The objection to this point of the charge is, that it is calculated to mislead the jury. It properly states the law as far as it goes, but stops short, and leaves the jury to grope in the dark, as to what is a devastavit. Now wé insist that the court should have said to the jury, what facts and circumstances would authorise them to find for the plaintiff, as for a devastavit, and that when it was said that the record from the chancery court was not evidence itself of a devastavit, and here stopped; that a most palpable error was committed. It should have said in addition'to what was said, that the decree in the record, if found to be by default, was evidence of assets in the hands of the administrators, which might be rebutted by evidence of no assets, on the part of the defendants; but if there was no proof on that subject, then the defendants would be chargeable for assets to the amount of the decree, and if there was no proof of payment, or performance of the decree, they would be considered as having wasted the estate, and chargeable for a devastavit. 3 East, 2, 3. These propositions, it is believed, are supported by authority, and if it be found to be so, then it will result, that" the very reverse of the second proposition embraced in the charge is true. In the absence of all other proof on either side, the record is evidence of a devas-tavit.
    In what light does an executor stand in reference to the goods, &c. of his testator, by the principles of the common law? He is chargeable, generally, to the extent of the goods, chattels, &c., in his hands, onty in payment of the debts due by the testator; but if there are not assets to pay the debts when sued, he must plead fully administered, the want of assets, or on failure, if there is a judgment for a debt “ to be levied of the goods and chattels, &c. in the hands of the administrator to be administered.” This is an admission of assets, upon which, if the debt is not paid, he will be chargeable with a devastavit. See Johns. Cases, 276, and authorities there referred to; Skelton v. Hawling, stated in the note to Wheatly v. Lane, 1 Saund. Rep. 219, d. e.; 3 Term Rep. 685; and by the same law upon a scire facias, scire fieri inquiry, or in an action of debt, suggesting a devastavit, the executor or administrator could not plead fully administered, or no assets, unless in the original action he had pleaded such plea. 1 Saund. Rep. 219, c.
    But how is the administrator or executor to be charged by scire facias, scire fieri inquiry, or action o,f debt suggesting a devastavit? 1 Saund. Rep. 219, note 8, 219, a.
    The foundation of the claim against the administrator, is the original judgment obtained without plea, and the principle upon which it rests, is the'possession of funds of the testator or intestate, with which to pay, to which another, a creditor, is entitled, and having failed to pay, he makes the debt his own, upon valuable consideration, and is consequently chargeable to the amount of the claim for a devastavit.
    Upon what evidence is he chargeable in a scire facias, upon-the return of nulla bona, upon a scire fieri inquiry, upon the return of milla bona, and an inquisition by the sheriff, in which it is found that the executor or administrator has wasted the goods; or in an action of debt upon averment and proof of the judgment, and the return of nulla bona on the averment and proof of the judgment without the issuance of fieri facias, or return of nulla bona? See the case before referred to, of Wheatly v. Lane, and the note to the same. 1 Saund. Rep. 216-18; 219, a. b.; particularly 219, b; 1 Johns. Cas. 276; 3 East, 2, 3.
    The case in Johns. Cas. proves that a fieri facias, returned nulla bona, is conclusive evidence of a devastavit. The note in Saund. Rep. 219, b, states that the return of nulla bona will be sufficient evidence. The case in Johns. Cas. is the better authority, because it is supported by principle. The return is by a sworn officer, upon which he is chargeable for a false return. But we insist that it is not necessary that there should be a return of nulla bona, upon the principle before stated, that the administrator or executor, by failure to plead “ no assets,” or “ fully administered,” has made it his own debt, and being his own debt, proof of the payment must come from him, and upon scire facias upon failure to prove payment, the judgment of the court will be, that the plaintiff have execution, and in an action of debt, that he recover de bonis propriis. If this be not so, how is it that the court sustained the case of Wheatly v. Lane, in which case there was no return of nulla bona, but judgment was rendered in that case, and by the note to that case, 219, b., that case is recognised as law?
    But are the principles of the common law, on this subject, altered by our statutes? It is believed not. The only provision on this subject is found in Revised Code, 44, s. 57. It is this: “ But no executor or administrator, or security for any executor or administrator, shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or false pleading of such executor, or administrator.” Now what does this amount to? does the provision alter all the rules of the common law, make it necessary in an action suggesting a devas-tavit, with a scire facias, that the plaintiff should prove not only that he has a judgment and that there is a return of nulla bona, but also even where the defendant fails to plead that the defendant has wasted the estate, that he has not fully administered, and has assets to the amount claimed from him? or is the construction not rather, that the administrator or executor against whom there is a judgment without plea of no assets, &c., is chargeable to the amount of the judgment as for assets, unless he shows under the plea of payment, no assets or fully administered, that he is not chargeable, and that if he can show, notwithstanding the judgment that he has not assets, or a sufficiency of assets, that he shall be chargeable only to the extent de bonis propriis of the assets in his hands? He is not to be charged beyond the assets in his hands. The judgment has fixed the presumption that he has assets, and to rebut the presumption he should show the situation and extent of the assets, and by such showing discharge himself from liability. The judgment is a charge upon him, and a showing of want of assets, a discharge; but until such discharge, he is liable, under the statute, in like manner as he would have been at. the common law, and having failed to make proof of payment, a judgment will be rendered against him, and would in any other action upon bond, note, judgment, or any other security or liability. 3 East, 3, 3.
   Mr. Chief Justice Shaexe'y

delivered the opinion of the court.

The plaintiffs instituted this suit against the defendants on a decree of the chancery court, pronounced against them as administrator and administratrix of Archibald Douglass, deceased. With a view to make them personally liable, he has suggested a de-vastavit in the declaration out of which the material points in the case arise. It appears by the bill of exceptions, that the plaintiff on the trial introduced and read in evidence, the record from the court of chancery, containing the proceedings there had, including the decree, and there rested his case. The counsel for defendants then requested the court to charge the jury, first, that it was necessary that there should be evidence of a devastavit to authorise the jury to find for the plaintiff; and, secondly, that the record from the court of chancery was not of itself evidence of that fact. To this, the plaintiff’s counsel objected, but the court overruled the objection and gave the charge as requested, and the jury found for the defendant.

As regards the abstract question embraced in the first proposition, there can be no doubt as to the correctness of the charge. In the argument it has been admitted, that as a principle of law, it is undeniably true, and the question is as to what constitutes evidence of a devastavit. For the plaintiffs, it is contended, that the decree against the defendants in their representative capacity 'was evidence of the devastavit, they not having discharged themselves by proper pleas. Our inquiry will, therefore, be directed to the sufficiency of the evidence offered to establish the de-vastavit.

There is a very material difference as regards the liability of executors and administrators, between the law in this state and the. practice in England. By the English practice, a judgment against an executor or administrator, or any other plea than plene administravii, or a plea admitting assets to a certain extent, and nothing beyond, is evidence of assets, and an executor or admin-. istrator will not afterwards be allowed to deny that he received them. His liability is thus fixed by the presumption, that if there had not been assets sufficient he would have pleaded it in the first instance, and that by pleading to the merits of the action he has virtually admitted a sufficiency of assets. The rigor of this-rule is removed by our statute, and an executor or administrator is not liable beyond the amount of assets for any omission in pleading, mispleading, or false pleading. Revised Code, 44, s. 57. Nor is an executor or administrator bound to plead specially, but may give any matter in evidence under the general issue. Revised Code, 60, s. 105. These provisions clearly indicate the leniency with which the acts of executors and administrators are considered by our law, nothing being deemed sufficient to create a presumption of assets. 1 It is most manifest that the English rule, cannot exist here, for two reasons; first, the statutory provision intervenes; and, secondly, the plea of plene ctdminisiravit is unknown in our practice; so that an executor or administrator could not relieve himself by pleading it. But even if it does prevail I do not think it can be carried to the extent contended for by the plaintiff’s counsel, as I think it will appear on examination of the authorities.

The practice, as it at first prevailed in England, was for the sheriff to return milla bona and a devastavit, and then the plaintiff was entitled to execution de bonis propriis. Subsequently it was the practice to sue out a scire facias and obtain an award'of execution. Different rules prevailed in the courts of king’s bench and common pleas, which becoming troublesome, both courts adopted the scire fieri inquiry, by which the sheriff was author-ised to inquire by a jury whether a devastavit had been committed, and if so, to warn the defendant to appear and answer to the charge; and unless he made a good defence, execution was awarded against him. In lieu of this proceeding the action of debt, suggesting a devastavit, was substituted and is now the common remedy. 1 Saund. Rep. 219, note 8.

If the judgment alone be evidence of a devastavit, why did the courts in England think it necessary to resort to these several modes of proceeding to justify them in issuing execution against the proper goods of the administrator? It is an inference not easily resisted, that they did not think the judgment alone sufficient evidence of the fact. The compiler of the note above referred to cannot be understood as meaning any thing else when he says, If, therefore, upon a fieri facias de bonis testatoris on a judgment obtained against an executor' by either of the ways above mentioned, either no goods can be found which were the testator’s, or not sufficient to satisfy the demand; or, which is the same thing, if the executor will not expose them to execution, that is evidence of a devastavit.”- From this language it would seem to be the failure to find the goods after a proper effort, that constitutes the devastavit. A part of the same note referred to was relied on by the plaintiff’s counsel in support of his case. It is said that “this action may be brought upon the judgment upon a bare suggestion of a devastavit without any writ of fieri facias first taken out upon the judgment.” This is undoubtedly true, but it does not still follow that the judgment would be evidence of a devastavit. The plaintiff might resort to proof other than the return of nulla bona to establish it. The succeeding remarks of the author show what will be deemed sufficient proof. He says, “but the usual course is first to sue out a fieri facias upon the judgment, and upon the sheriff’s return of nulla bona, to bring the action and state the judgment, the writ and return in the declaration, and on the trial the record of the judgment, the fieri facias and the return will be sufficient evidence to prove the case.” If any thing less would be sufficient evidence to prove the case it is remarkable that the author should have been so particular in including the whole of the proceedings. If the judgment alone would be evidence it is scarcely probable that he would have mentioned the writ and return. The same language is again held by the same author in a subsequent note. 1 Saunders, 337. The case of Ewing et al. v. Peters, 3 Durnford and East, 635, leads to the same conclusion. That was an action agáinst an executor suggesting a devastarán On the trial, the judgment against him, the fieri facias and the return of nulla bóna were all offered in evidence to establish the devastavit, and it was made a question whether they rvere all sufficient. Lord Kenyon, in delivering his opinion, declared that although the current of authorities favored the sufficiency of evidence, yet that he had met nothing to convince him, and although he yielded to the weight of authority, he rvould not to the reasoning of them: I think it fair to infer that if the evidence had not been complete by the exhibition of the judgment, fieri facias and return, it worild have been deemed insufficient.

In the absence of a positive authority declaring the judgment alone evidence of a devastavit, I harm been unable to arrive at any other conclusion than that it is insufficient. Even if it be taken as evidence of assets, yet there is a rvide difference betAveen the possession of assets and the wasting of them. The mere fact that an administrator has assets in his hands, does not give a right of action to the creditors of an estate against him individually. It is the Avasting of the estate that gives the right, and that wasting Avill not be presumed from the fact that assets came into his hands.

There is another consideration which might be urged with great force in this case. The decree was pronounced on a bill brought to enjoin proceedings at law, instituted by the defendants against the plaintiff. The suit at law was founded on a note Avhich had been given for land purchased of the intestate in his lifetime. The plaintiff had made one payment toward the purchase money to the intestate, and on the hearing the chancellor rescinded the contract for the land, and decreed that the amount paid the intestate should be repaid by his administrators. The amount decreed to be refunded did not necessarily present itself as a claim against the estate, but only arose as a consequence of the rescisión of the contract, and it is therefore questionable whether the decree could be any evidence of assets. Independently of this, hoAvever, I think, for the reasons before given, that the court Avas -correct in the charge to the jury.

Judgment must be affirmed.  