
    
      Tinsley v. Oliver’s Administrator and Heirs. The Same v. the Same.
    Decided, Feb. 11th, 1817.
    i. Chancery Practice — Suit by Surety against Administrator and Heirs of Principal — Necessity of Previous Action at Law. — A Surety in a bond, having paid to the creditor the amount of a judgment against him thereupon, may file a Bill in Equity, (without having made amotion or brought any action at law) against the administrator and heirs of the principal obligor; for the purpose of establishing his demand; of having an account of the personal and real estates; and of being permitted to stand in the place of the obligee in the Bond, so as to be paid out of the real estate, in default of the personal. 
    
    Upon Appeals from Decrees of the Superior Court of Chancery for the Richmond District, dismissing with costs, two Bills exhibited by the Appellant; the object of which was to obtain retribution for the amount of several Judgments, on Bonds, obtained against him, and paid by him, as security for the intestate John Oliver; the prayer of the Bills being, that the administrator should render an account of the personal assets, and satisfy the claims of the plaintiff, as standing, in equity, in the shoes of the judgment creditors; that the other defendants should render an account of the real estate, and in case of a deficiency of the personal estate, (which was suggested as probable,) that his said claims might be charged upon the real estate, either by marshalling assets, or putting him upon the footing of a bond creditor. In one of the cases, the plaintiff appeared to have obtained a judgment at law against the administrator, but without receiving satisfaction : in the other, no motion had been made, or suit at law instituted, to recover the money paid. No objection to the jurisdiction of the Court of Equity was taken by the defendants. Chancellor Taylor dismissed the Bills, on the ground that, in his opinion, the plaintiff had complete remedy at law; but without prejudice to any suit he might be advised to bring at law.
    Eeigh for the Appellant.
    Bouldin for the Appellees.
    
      
      Chancery Practice — Suit by Surety against Administrator and Heirs of Principal — Necessity of Previous Action at Law. — In Tennent v. Pattons, 6 Leigh 219, after reviewing the English cases in point, the judge concludes that they establish beyond question, the regular and long settled course of selling the lands of deceased persons to pay their debts binding the land, or to marshal their assets. Turning to the Virginia practice, he admits his inability to state with confidence whether this practice has been followed here; but says he is under the impression that it has been followed. After referring to the case of Eppes v. Randolph, 2 Call 125. he takes up the principal case, saying (p, 220): “In Tinsley v. Oliver’s Atim’r, 5 Mimf. 119, the surety in a bond of the ancestor, having had judgment against him, and paid it off, filed his bill against the administrator and heirs, praying an account of the personal and real assets, and in case of a deficiency of the personal, that his claim might be charged upon the real estate, either by marshalling assets, or putting him on the footing of a bond creditor: the chancellor dismissed the bill on the ground, that the plaintiff had a complete remedy at law: but this court reversed the decree, ‘being of opinion, that the plaintiff was properly in equity, as well to establish his demand, as for the purpose of having an account of the personal estate, and being permitted to stand in the place of the obligees in tlje bonds, in the bill mentioned, so as to be paid out of the real assets in default of the personal.’ How paid out of the real assets? Assuredly, according to the course of equity, by sale of the land. This, then, I consider as a direct recognition of the English doctrine on the subject. The case of Blow v. Maynard, 2 Leigh 29, is another ease where, upon examination of this very doctrine, this court unanimously decided for and decreed a sale of the land.”
      Surety — Subrogation against Heirs of Principal.— To the effect that a surety who pays off a bond will stand in the creditor's shoes against the heirs of the principal obligor, the principal case is cited in Powell v. White, 11 Leigh 330.
      Bonds — Payment by Surety — Right to Retainer Where Surety Is Administrator. — Sureties in a bond, who pay it off after the death -of the principal, are entitled to rank as special creditors of the principal, and, if they be administrators of his estate, may retain whatever they pay on account of such, suretyship out of the assets that come to their hands as administrators, againstother specialty creditors. Powell v. White, H Leigh 309, 316, 332, citing principal case.
    
    
      
       Note. By the Act of Assembly, “to empower Securities to recover damages in a summary way,” (l R. O. ch. 145,) the remedy by motion is given to the Security, in any note, bill or bond, his or her Executors, or Administrators, against the principal obligor, his or her Heirs, Executors or Administrators. But such remedy is not so complete as that in Equity, where accounts of the personal and real assets may be ohtained. on oath, from the defendants. — Note in Original Edition.
    
   ^February 11th, 1817,

JUDGE ROANE

pronounced the' Court’s opinion as follows.

The Court is of opinion that the Decrees in these cases, dismissing the Bills of the Appellant, are erroneous, the Appellant being properly in a Court of Equity, as well for the purpose of establishing his demand against the estate of the Appellee’s intestate, in the second suit, as of having ah account of his personal estate, and being permitted to stand in the place of the obligees in the bonds, in the bills men-Honed, so as to be paid out of the real assets in default of the personal. The Decrees are therefore reversed, with costs, and the causes are remanded, to be proceeded in, pursuant to the principles of this Decree.  