
    *Manns v. Flinn’s Adm’r.
    February, 1839,
    Richmond.
    (Absent Bbookb, J.)
    Fraudulent Devises — Action of Debt — Executor’s Bond. —Under the statute against fraudulent devises, an action of debt lies on an .executor’s , bond, for a creditor claiming a debt from the executor’s es-tafe, arising from a breach of the condition by the executor in his lifetime, against the executor’s devisees, to have satisfaction out of the lands . devised.
    Executors and Administrators — Grant of Administra» tion Void. — Judgment is recovered against A. in his lifetime; A. dies, and upon the supposition of his intestacy, administration of his estate is granted tQ B; a will of A. being afterwards found and proved, the former grant of administration is revoked, and administration with the will annexed granted to C.; and suit is brought on the judgment after flve years had elapsed from the grant of administration to B. but within five years from the grant of administration to the rightful adm’r C. — Held, the five years limitation prescribed by the statute 1 Rev. Code, ch. 128, § 17, began to run, not from the void grant of administration to B. but from the qualification of C. the rightful adm’r, and so the statute was not a bar to the suit. , . , •
    Same — Same—Same—Construction pf Statute. — Quere, whether the provision of the 17th section of that statute applies to judgments against a decedent in autre droit, or only to judgments against him. in his own right ? and whether it is a protection to the heirs or deyisees of the decedent as well as his ex’or or adm’r ? , .
    Chancery Practice — Sale of Land — Rents and Profits— Decree — Affirmance.—An interlocutory decree directs a sale of lands to satisfy a debt, in a case where it might Rave been proper to decree satisfaction out of the rents and profits; but this was not a point controverted in the court below, or in any way brought to the notice of the court, and though the party had ample opportunity to apply to the court to alter the decree in that particular, he did not apply for such alteration: upon appeal to this court, Hum), the decree shall not be reversed lor such cause, but affirmed, and the cause remanded, with direction to alter the decree, and direct satisfaction out of the rents and profits, if such alteration be asked, and if the debt can be satisfied out of the rents and profits within a reasonable time.
    In August 1813, John Rlinn recovered a judgment in an action of debt in the county court of Greenbrier, ^against Moses Mann executor of Andrew Hamilton, for ¿1000. to be discharged by the payment of ¿100. with interest from the 26th July 1795, and the costs of the suit. Flirm died shortly afterwards, and in September 1815 administration of his estate was granted to Anthony Rader; in whose name the judgment was revived by scire facias in June 1818, for the debt, interest and costs, and the costs of the scire facias. On this judgment a fieri facias was sued out in August 1818, which was returned nulla bona. And this was the last proceeding had at law in the case.
    Moses Mann died in 1822, and in the same year, the county court of Alleghany, on the supposition that he had died intestate, granted administration of his estate to Nash Le Grand and two others. But he in fact left a will, which, being afterwards found, was proved in the circuit court of Alleghany in October 1823 ; and, at the same time, the letters of administration which had been previously granted to Le Grand and others were revoked, without prejudice to any person for any acts done prior to the production and probat of the will, and the executor named in the will refusing to act, administration with the will annexed was granted to Lewis Mann.
    Rader, the first administrator of Plinn having died, administration de bonis non of Plinn’s estate was granted to Joseph Maze in November 1827.
    No proceedings having been had on the judgment of Plinn’s administrator against Moses Marin to revive the same against his representatives, and no action of devastavit having ever been brought thereon ; Maze the administrator de bonis non of Plinn, in March 1828, exhibited his bill in the superior court of chancery of Greenbrier, against Lewis Mann the administrator with the will annexed of Moses, setting forth the original judgment recovered by Plinn against him as executor of Hamilton, the judgment recovered by Rader the first ‘^administrator of Plinn on the scire facias, and the execution sued out by Rader and the return of nulla bona thereon : alleging, that the debt remained still unsatisfied; that assets of Hamilton’s estate sufficient to satisfy the debt came to the hands of Moses Mann his executor, which he had wasted or misapplied; and that sufficient assets of Moses Marin’s estate came to the hands of the defendant Lewis Mann his administrator with his will annexed: and praying accounts of Moses Mann’s administration of his testator Hamilton’s estate, and of the defendant’s administration of Moses Mann’s estate, and a decree for the amount of the judgment out of the assets of Moses Mann’s estate.
    The defendant, in his answer, said, that Moses Mann had duly and fully administered the estate of Hamilton, and that he himself had duly and fully administered the estate of Moses Mann ; and after shewing that Moses Mann died, and that administration of his estate was granted to Le Grand and others, in the year 1822, he relied on the provision of the statute of limitations 1 Rev. Code, ch. 128, § 17,  as a bar to the relief sought in this suit commenced in March 1828.
    Hereupon, in November 1828, Maze filed an amended and supplemental bill, making-new parties, namely, the children of Moses Mann, to whom by his will he devised his real estate, and who (the bill alleged) were also his "heirs: and exhibiting the official bond of Moses Mann as executor of Hamilton, whereby he bound his heirs, he insisted, that, in case it should turn out that the personal assets of his estate had been duly administered and exhausted, then, by force of his executorial bond, his real estate in the hands of his heirs and devisees was chargeable with the debt he owed to Flinn’s estate; and he prayed satisfaction thereof, accordingly, out of the real estate, and an account of the same.
    These new parties, in their answers, controverted the justice of the claim; and supposing it just, they controverted the liability of the real estate devised to them for such a debt. And they also pleaded the statute of limitations as a bar to the relief sought in this suit.
    Moses Mann qualified as executor of Hamilton in June 1796, and gave bond for due administration in the form required by the statute, binding his heirs.
    It appeared, by exhibits in the cause, that Moses Mann had made three settlements of his accounts of administration of Hamilton’s estate, before commissioners of the county court of Greenbrier, which were returned to that court and recorded; the first in 1800, the second in 1801, and the third in 1816; by which, if those settlements had exhibited a due administration, he would have been a creditor of the estate. But the first of those accounts shewed, that before the settlement thereof was made, he had delivered specific legacies to the legatees of Hamilton, to the value of £348. (according to the appraisement of the estate) without requiring refunding bonds from them.
    It also appeared, that a decree in favour of the administrator of one Mitchell against Moses Mann as ' executor of Hamilton, for 406 dollars, had been satisfied and paid by him in October 1821; and that another decree rendered in 1827, in favour of one Meze against Bewis Mann administrator with the will annexed of Moses Mann executor of Hamilton, for about 865 dollars, had been satisfied *and paid by Bewis Mann. But the nature of the claims on which those decrees were founded, and the times at which they had been asserted by the creditors, whether before or after Flinn had recovered his judgment in 1813, nowise appeared; nor indeed was any thing alleged by the defendants to shew that the parties were justified in paying the amount of those decrees in preference to the debt due on Flinn’s judgment.
    The court having ordered the accounts prayed by the bills, it appeared by the commissioner’s report—
    1st, That Bewis Mann, the administrator with the will annexed of Moses Mann, had duly and fully administered the personal assets of his testator’s estate.
    2ndly, That, upon the account of Moses Mann’s administration of Hamilton’s estate, if the executor was chargeable with the sum of £348. the value of the specific legacies which he had delivered to the legatees of his testator, and with interest thereon from the time he had delivered the same, he had! assets in his hands sufficient to satisfy Flinn’s. judgment, even though the payments of the debts decreed to Mitchell’s administrator in 1821, and to Meze in 1828, were allowed as proper credits ; or that if he was chargeable with only the ,£348. the principal value of the specific legacies, yet if he was not entitled to take credit, as against Flinn’s administrator, for the payments made in satisfaction of the decrees in favour of Mitchell’s administrator and of Meze, he-had sufficient assets in his hands to satisfy Flinn’s judgment. And exceptions were filed by the plaintiff to the commissioner’s report, presenting the two questions — Whether the estate of Moses. Mann ought to be charged with interest on the £ 348. the value of the specific legacies, he had delivered to the legatees of his testator ? and whether, as against Flinn’s administrator. credit ought to be allowed to his. estate for the payments to Mitchell’s administrator and to Meze ?
    *3rdly, It appeared, that lands were-devised by Moses Mann to his children. made defendants by the amended bill, to the-value of about 5500 dollars. But a part of these lands had been sold; and in the progress of the cause, 395 dollars of the purchase-money thereof had been paid into court by the purchaser, and 300 dollars more remained, yet due from him.
    Upon the hearing, the court held, that Moses Mann’s estate ought to be charged with the principal and interest of the £348. the value of the specific legacies which he-delivered to the legatees of his testator ; and that it was not entitled to credit, as against Flinn’s administrator, for the payments made to Mitchell’s administrator and to-Meze ; and, therefore, that there were, at the death of Moses Mann, assets of the estate of his testator Andrew Hamilton in his hands more than sufficient to satisfy the claim of' Flinn’s administrator: That the whole-amount of the judgment recovered by Flinn in August 1813 (principal, interest and costs) remained unsatisfied : That the statute of' limitations presented no bar to the recovery-thereof: And that the personal assets of Moses Mann’s estate, appearing- to have been duly administered and exhausted, his real estate, in the hands of the defendants his devisees and heirs at law, ought to be subjected to the payment of the debt due the plaintiff. Therefore, the court decreed, that unless the defendant should, within three months, pay the plaintiff the amount of Flinn’s judgment (principal, interest at the rate of five per centum per annum from the 26th July 1795, and the costs), together with the costs of this suit, the marshal of the court should sell the lands devised to the defendants, or so much thereof as should suffice to satisfy the decree and the expenses of the sale. But the court directed, that if the defendants should give their consent to the payment to the plaintiff of the 395 dollars which had been paid into court, and of the 300 dollars which was still due, on account of purchase *money of the lands by them sold, those sums should be credited against the debt decreed to the plaintiff, and the marshal should sell only so much of the lands yet remaining in the hands of the defendants as would suffice to satisfy the balance of the debt.
    The defendants, by petition to this court, prayed an appeal from the decree ; which was allowed.
    The cause was argued here, by Johnson for the appellants and Heigh for the appellee.
    I. Johnson contended, that the 17th section of the statute of limitations was a bar to any relief sought in this case, either against the personal representatives, or the devisees, of Moses Mann. The foundation of the claim was a judgment recovered by Flinn, afterwards revived by his administrator, against Mann in his lifetime as executor of Hamilton ; and after Mann’s death, the administrator of Flinn might have had a scire facias to revive the judgment against the administrator de bonis non of Hamilton ; but if he sought satisfaction out of Mann’s estate, his remedy was an action of debt on the judgment against his representative, suggesting a devastavit by Mann ; an action of debt against Mann’s administrator with his will annexed, on a judgment against his testator. The case, then, was within the plain words of the statute ; and the only question was, from what time the statute began to run ? Whether from the grant of the letters of administration with the will annexed in October 1823, in which case the five years had not expired before this suit was brought ? or, from the grant of administration of Mann’s estate, upon the supposition of his intestacy, to He Grand and others, in 1822, in which case the term of five years was fulfilled ? He contended, that the limitation began to run from the first grant of administration in 1822. For he argued, that though the administrators were (by the condition of their bond, 1 Rev. Codech. 104, § 35, p. 383), bound *to “render and deliver up their letters of administration” upon the subsequent discovery and probat of the will, yet the grant of administration to them was not void ; that Flinn’s administrator might have maintained an action against them ; and when their authority was revoked, he ought to have brought his action against the administrator with the will annexed within five years from the time when he might have brought it against any representative of the estate; within five years, namely, from the first grant of administration of Mann’s estate to He Grand and others.
    Heigh said, that several very doubtful points might arise upon the construction of the statute in question ; as, for instance, whether the statute applied to the case of a judgment against a decedent as executor or administrator of another, or only to judgments against him in his own right ? or, whether the statute afforded a protection for the heir or devisee of the decedent as well as his personal representative ? In Mercer’s adm’r v. Beale & al., 4 Heigh 189, 205, an opinion was intimated by Tucker, P., that wherever the statute protected the personal representative of the decedent, it would equally avail to protect his heir: but the other judges gave no opinion on that point: and the remarks of the president were applied to a case where the foundation of the claim against the heir, was a judgment against the ancestor, on which the statute barred the remedy against the personal representative ; not to a case like the present, in which the claim against the heirs and devisees was not founded on the judgment against their ancestor and testator, but on his executorial bond which bound his heirs. But, he said, no such questions need be decided in this case. Supposing the statute applied to such a case, it began to run only from October 1823, when administration with the will annexed of Moses Mann was granted to Hewis Mann ; and this suit was brought within five years counted from that date. The ^previous grant of administration of Moses Mann’s estate to He Grand and others, upon the supposition of his intestacy, was, by the subsequent discovery and probat of the will, rendered void from the beginning; Abraham v. Cunningham, 1 Petersd. Abr. 250; Turner v. Davis, 2 Sound. 148. And if Flinn’s administrator had brought a suit against those administrators, an end would have been put to his proceedings against them, by the revocation of their authority, and the grant of administration with the will annexed to Hewis Mann ; nor could any proceedings instituted against him have been, by any means, connected with the former proceedings against the administrators.
    II. Johnson contended, that the lands of Moses Mann in the hands of his devisees, ought not to have been charged with the debt claimed by Flinn’s administrator, under his executorial bond ; because there was no debt ascertained to be due from him at the time of his death ; it was an uncertain and unliquidated demand. The statute against fraudulent devises gave a remedy against devisees only for debts of the devisor, not for damages however incurred. Covenant would not lie against devisees upon a covenant of the devisor for breaches in his lifetime, for such breaches gave a claim, not properly for a debt, but only for damages : and, he said, the action on an executorial bond for breach of the condition, was analogous to, and in substance the same with, an action for breach of a covenant. No remedy whatever was given directly to a creditor on an executor’s bond. He could only prosecute a suit upon it in the name of the justices of the court of probat, who were the obligees ; and the penalty, the debt, was recoverable in their names, not for the benefit of the relator only, but of all creditors; the relator recovered nothing but the damages sustained by himself by the breach of the condition. Other creditors could only come in by scire facias, which is a remedy that the statute against *fraudulent devises does not give ; and surely, the creditor first suing cou’d not be entitled to an action against devisees, if no subsequent creditor could have recourse against them.
    Leigh admitted, that covenant would not lie against devisees on a covenant of the devisor; but, he said, the only reason was, that at common law, if an ancestor devised lands, a creditor by specialty had no remedy either by action of covenant or of debt against the devisee, and the statute against fraudulent devises gave an action of debt against the devisee, but did not give an action of covenant. 2 Wms. Saund. 7, n. 4; Wilson v. Knubley, 7 Hast 128. But as an action of debt lay on a bond with collateral condition, as well as on a bond for payment of money, the statute gave the creditor a remedy on such a bond against the devisee of the obligor. There could be no difference, in this respect, between the remedy oh an ex-ecutorial bond and on any other bond with collateral condition. The creditor was entitled to an action of debt upon it, though the action must be brought in the name of the justices, who were the obligees ; and that action was prosecuted for the benefit of all the creditors, as well as for the relator. His action was, in effect, the action of all creditors, though other creditors were put to their scire facias to entitle themselves to the benefit of the judgment in the action.
    III. Johnson objected, that the decree was erroneous in directing a sale of the lands, without first ascertaining that the rents and profits thereof would not have been sufficient to satisfy the debt within a reasonable time. He cited Tennent’s heirs v. Patton, 6 Leigh 196.
    Leigh answered, that the decree was interlocutory, and if it was erroneous in this respect, this court'might provide for the correction of the error.
    IV. The other questions discussed at the bar, were — Whether the executor ought to be charged with the value of the specific legacies, they having been delivered *about thirty years before the bill was filed, and there being no proof that he had notice of Plinn’s claim ? Whether the executor ought to be charged with this subject, without bringing the legatees before the court, and holding them, in the first instance, responsible for the property they had received ? Whether, if he was properly chargeable with the principal, he ought, under the circumstances of the case, to have been charged with interest ? And whether the claim of Rlinn’s administrator was entitled to preference over the debts due to Mitchell’s administrator and to Meze, paid in 1821 and 1828 ?
    
      
       Executors and Administrators — Grant of Administration Void. — In Manns v. Minn, 10 Leigh 93, the court held that the grant of administration'as upon an in-, testacy where a will exists, though not ostensible, was void, or a nullity quoad the executor. The principal case is cited in Gibson v. Beckham, 16 Gratt. 325.
    
    
      
      Judicial Sales — Inquiry into Rents and Profits. — See foot-note to Barr v. White, 30 Gratt. 532; Ewart v. Saunders, 25 Gratt. 203 ; and monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636. See 17 Am. & Eng. Enc. Law (2d Ed.) p. 958.
      Same — Same.—In Ewart v. Saunders, 25 Graft. 207, the court said; “It will be observed that the statute prescribes no particular mode by which it shall be made to appear that the rents and profits will not pay the judgment in five years. When there is doubt about the fact, or an incmiry is demanded by either of the parties, the court will generally direct one of its commissioners to ascertain and report the annual rents and profits of the land. But this is not a necessity in every case. If none of the parties ask such an inquiry there may. in a proper case, be a decree for the sale of the property without it. McClung v. Beirne, 10 Leigh 405; Manns v. Minn, 10 Id. 98.” This language is quoted in Brengle v. Richardson, 78 Va. 411; Horton v. Bond, 28 Gratt. 821. See the principal case cited in Newlon v. Wade, 43 W. Va. 287, 27 S. E. Rep. 245.
      Same — Same—Enquiry Presumed to Be Waived.— Where the bill does not allege the insufficiency of the rents ana profits to satisfy the liens within the period of five years, and where there has been no enquiry, but the decree of the court below sets fo-rth that it appears that the lands without the improvements when sold would not more than pay the liens, the parly entitled to the enquiry may be presumed to have waived it, and the decree oi sale will not be set aside on account ot the omission of such enquiry; but it will be amended, and that party be allowed to have the enquiry if he chooses, and so amended the decree will be affirmed. Brengle v. Richardson, 78 Va. 406, 412, citing the principal case : McClung v. Beirne, 10 Leigh 405 : Ewart v. Saunders, 25 Gratt. 203. See Price v. Thrash, 30 Gratt. 515; Hill v. Morehead, 20 W. Va. 429.
      In McClung v. Beirne, 10 Leigh 405, it is said: “The next error assigned is the failure to ascertain whether the rents and profits would not pay the debt in a reasonable time. To this it may be answered that defendant, not haying asked the en-quiry, is presumed to have waived it. Manns v. Flinn, 10 Leigh 93.” The principal case is cited in this connection in Moore v. George, 10 Leigh 247; Bose v. Brown, 11 W. Va. 140; Brengle v. Richardson, 78 Va. 412.
      Same -Same — No Application for Enquiry ‘lade — Effect,- -Where no application for such an enquiry is made, and the decree appealed from is interlocutory, the appellate court will not reverse the decree for the failure to direct the enquiry; hut will amend it, allowing the defendant to have the enquiry if he chooses, and so amended will affirm it. Ewart v. Saunders, 25 Gratt. 203, citing 'the principal case. The principal case is cited in this connection in Rose v. Brown, 11 W. Va. 139; Johnson v. Wagner, 76 Va. 592, and distinguished in Cronie v. Hart, 18 Gratt. 745. See the principal case cited in Pairo v. Bethel, 75 Va. 833.
      See opinion of Judgk Stanabd in the principal case, p. 108, where he distinguishes the case of Tennent v. Pattons, 6 Leigh 196.
    
    
      
      T]ae words of the statute are — “No action of debts shall be brought ag-ainst any executor or administrator &c. upon a judgment obtained against his testator or intestate, nor shall any scire facias be issued against any executor or administrator &c. to revive such judgment, after the expiration of five years from the qualification of his executor or administrator; and all such judgments, after the expiration of five years, upon which no proceedings shall have been had, shall be deemed to have been paid and discharged; saving to all persons, non compos mentis, femes covert, infants, imprisoned, or out of the commonwealth, who may have been entitled to the benefit of such judgment, three years after their several disabilities removed.”
    
   STANARD, J.

The appellee by his original bill against the personal representative of Moses Mann, sought satisfaction of a judgment obtained by his intestate against Moses Mann as executor of Andrew Hamilton, out of the personal assets of Mann’s estate ; and by his amended bill, he made the devisees of Mann (who were his children, and, in part, his heirs) defendants, and sought satisfaction of his claim out of the real estate devised to them, in the event that he should fail to get it out of the personal. All the defendants relied on the 17th section of the statute of limitations as a bar to the plaintiff’s claim ; and the devisees further insisted, that the debt could not be charged on the lands devised. I am of opinion, that neither of these defences is sustainable.

Rive years did not elapse, from October 1823, when administration of Moses Mann’s estate with his will annexed was granted to Lewis Mann, to the institution of this suit in March 1828 ; and consequently, if the administration granted to Le Grand and others in 1822, upon the supposition of an intestacy, had not been granted, there would have been no pretext for applying the limitation in question in bar of this suit. A case for the effectual application of that provision of the statute, can be made only by coupling the two grants of administration together, and thus, in respect to this matter, giving efficacy to the first, so as to make it the terminus from which the statute should begin to run. This, I think, is inadmissible. The grant of administration as upon an intestacy, when a will exists, though that will be not ostensible, is void for every purpose, except perhaps the single one of protecting a debtor of the decedent in the payment of a debt to such administrator while the will remains concealed or unknown. 1 Wms. on Ex’ors, 369, & seq. Against him the creditor could have no effectual remedy, nor could he, if he had initiated proceedings against him, have pursued them to judgment against the rightful administrator. To allow the rightful administrator to use the void grant to eke out his defence, would be to unite the invalid to the valid, and draw succour to a right the existence of which infers the nullity of that from which succour is sought. The statute requires proceedings to be commenced within five years from the qualification of the executor or administrator : is it for the defendant to say that there was such a qualification, and to use for his protection a proceeding which was in derogation of his rights, and the nullity of which results from those rights ?

It is, moreover, the decided inclination of my mind, that this provision of the statute of limitations is not available in bar of a claim on a judgment against a testator or intestate in autre droit. But as it is unnecessary to decide this point in the present case, I forbear to express any final opinion upon it, or to enter into the reasoning' which has given to my mind the inclination now avowed.

The charge of the debt due to Flinn’s administrator on the lands derived by the defendants from Moses Mann, is made under his executorial bond by which his heirs are bound : and the objection is, that the defendants are devisees, and as such are not chargeable, under the statute against fraudulent devises, on any obligations of *the testator other than those which evidence some certain debt, and especially not on obligations on which the claimant must sue in the name of others and is a party as relator only.

As to the first branch of the objection, it is to be remarked, that it is not urged against the remedy in equity to which the appellee has resorted ; for that would be an objection not to the right but to the mode in which it is sought to be enforced. If the right exists, I have no doubt the appellee has the remedy in equity he has resorted to. The objection is, that his claim is not within the protection •of the statute, and he could not have maintained an action at law for it against the dev-isees. In the present case, as the parties are heirs as well as devisees, this objection might perhaps be turned aside by the appel-lee, by considering the defendants as having succeeded as heirs to the lands proposed to be charged, to the extent of the interest they would have taken as heirs had there been an intestacy, and regarding them as holding the lands, to that extent, by their better title as heirs. But dismissing that inquiry, and treating them ‘ as devisees, my opinion is, that the objection to the liability of the lands devised to the appellee’s claim is untenable. The application of the strictest principles of construction to the statute against fraudulent devises results in this — that as the statute gives the remedy by action of debt against the devisee, he and the lands devised are liable only for such claims as can be asserted and recovered by an action of debt. Wilson v. Knubley, 7 East 128. Now, the claim of the appellee is within the letter of the restriction resulting from this construction. At the death of Moses Mann, the right of Flinn’s administrator to assert his claim by action of debt on Mann’s executorial bond, was consummated. The debt too was ascertained ; and though in such a suit Mann perhaps might have shewn that he was entitled to exoneration in whole or in part, the possibility of *such defence rendered the extent of his liability not more uncertain than it would have been, if the claim to exoneration had been founded on disputed set-offs to a bond for his own debt and for a sum certain ; and if the claim was on a bond with a collateral condition, and the amount as well as the extent of the responsibility was unliquidated, yet it would be within the letter and strict construction of the statute, and chargeable on the devisees and land devised.

The other branch of the objection, namely, that the action 'at law, had one been brought, must have been brought in the name of the justices, and the claimant would only have been a relator, is, I think, equally unavailable. The only difficulty in bringing a claim asserted on such a security within the letter of the statute, would arise when a second claimant should, after a judgment rendered in favour of the first, seek his remedy : that remedy would be a scire facias on the judgment rendered in the suit of the first claimant; and so, it is supposed, it would be liable to the objection arising from the technical and literal construction by which the operation of the statute against fraudulent devises has been limited. But the objection would not be applicable to the case: for the first action on the bond is not only for the benefit of the relator in that suit, but for all others to whom the security enures, and those that come in after the judgment in the action of debt prosecuted for the behoof of all, may with strict propriety be regarded not only as having had a right to an action of debt, but as having used that remedy.

As to the accounts, I think the amount of the appraised value of the specific legacies, and interest thereon, were assets of Hamilton’s estate in the hands of Moses Mann his executor, chargeable with the appellee’s claim ; and that the payments made on the decrees in favour of Mitchell’s administrator in 1821, and of Meze in 1828, cannot be allowed as credits to reduce *the assets chargeable with the appel-lee’s claim. For judgment had been rendered in favour of Flinn the appellee’s intestate, as early as 1813, which charged the assets then in the hands of Moses Mann or for which he was then accountable. If this charge could be dislodged by a subsequent judgment or decree, it must have been a subsequent judgment or decree rendered for a claim of higher dignity than Flinn’s, and Mann must have had notice of that claim before the rendition of Flinn’s judgment. But such superior dignity and notice are not shewn, and not even alleged. Nothing appears in the case to authorize the court to put the appellee on the pursuit of the specific legatees of Hamilton, for the protection of the executor Mann and his representatives. Prima facie, the creditor is under no obligation to make such pursuit. Were it conceded that peculiar circumstances might exist, from which an equity in favour of an executor might arise to cast this duty on a creditor, yet that equity .should be asserted, and the circumstances suggested in the progress of the cause, in-order to enable the creditor to have the ciroumstances investigated, with a view to relieve him from the duty of pursuing the legatees, by shewing that their removal or insolvency, or other circumstances, would render the pursuit fruitless or in the highest degree inconvenient. The pleadings in this case assert no such equity, suggest no such circumstances. The length of time which has elapsed during the prosecution of the appellee’s claim (the only circumstance relied on to put the appellee on that pursuit, and apparently urged for the first time in the argument before the appellate court) is unavailing to sustain the pretension. The lapse of time affords a presumption that the pursuit would have been fruitless, and had it been urged in the progress of the cause in the court below, that presumption might have been corroborated by proof.

*The imputation of error in the decree, for directing the amount of the appellee’s claim to be raised by a sale of the lands, instead of applying the money which had been paid into court towards the satisfaction of it, and raising the residue out of the rents and profits, is in part unfounded. The fund subject to the order of the court is applied in the way suggested, unless the appellants should prevent it by withholding their consent to such application ; and of this they have no right to complain. Without questioning the principles on which Ten-nent’s heirs v. Patton was decided, I do not think the decree in this case should be reversed, because it directs the debt to be raised by a sale of the lands. In that case, the decree was final, in this casé it is interlocutory : there infants were concerned, here the devisees are adults: there, no opportunity existed at the time the appellate remedy was sought, to bring the subject to the notice of the court below, and get redress for an error on a point not before brought under its notice; here, such opportunity did exist: there, the infants could not waive or renounce any right or privilege ; here, the adults had full capacity to do so. According to the principles of the case of Tennent’s heirs v. Patton, the heir or devisee has the right or privilege to have the debt raised out of the rents and profits, if it can be done in a reasonable time ; but if adults, they may surely waive this privilege, and find it to their advantage to have the amount raised by a sale of the land, rather than subject themselves to the charge of a receiver, the inconvenience of renting out and tenanting the whole land, and the sequestration of all the profits. It seems from the record in this case, that the whole controversy in the court below related to the existence of the claim, and the liability of the lands devised to be charged with it: there was no controversy about the manner of raising the money out of the lands. If it does not appear that the defendants were *apprized of their right to have it raised out of the rents and profits, yet it is by no means certain, that, if they had been apprized of it, they would have preferred that mode of raising it to the mode adopted by the decree. Had that right been known and urged, it might not have been resisted. If the decree had been moulded by the principles of the case of Ten-nent’s heirs v. Patton, and the indubitable doctrine applicable to the proceeds of the sale made by the defendants of part of the land, (which were subject to the control of the court below,) the'decree would have directed the application of those proceeds, unconditionally, to the part satisfaction of the debt, and provided for the satisfaction of the balance out of the rents and profits ; and it is by no means clear that the defendants would have preferred such a decree to the decree which was pronounced.

It is beneficial to the administration of justice, and will tend to discourage litigation, that this court should cherish a course of practice whereof numerous examples are furnished by its decisions, which refrains from reversing a decree or judgment on points not foreseen or contested in the court below, when the party might have had the benefit of them there if he had there suggested them, and when the opportunity of making the suggestion in the court below, and getting the benefit of it there, still remained at the time he sought his appellate remedy; especially, when the point arises out of the exercise of a privilege of such party, when it is doubtful, whether or no he would have exercised the privilege if he had been fully apprized of it, and when a reversal is not necessary to enable this court to save the full benefit of that privilege to him. Such is this case in all respects: it is plain, that there was no controversy between the parties as to the manner of raising the money ; that the decree being interlocutory, the appellants had full opportunity to apply for a modification of it before the sale could take place under it, if *they preferred a decree so modified to the one which was rendered; that it is nowise apparent that they would have preferred, or will now prefer, such a modification of the decree ; and that if they have such a preference, this court may give them the benefit of it without reversing the decree. The benefit of such preference may be saved to them, by reserving to the court below, the power which it possessed at the time the appeal to this court was allowed, of so modifying the decree, as to direct the unconditional application of the money under the control of the court, to the partial satisfaction of the appellee’s claim, and to provide for the payment of, the balance out of the rents and profits of the lands devised, which by the decree as it now stands are subjected to sale, provided such a modification of the decree shall be asked by the appellants or by the appellee before the sale takes place, and provided the rents and profits will discharge the debt in a reasonable tim e.

I am therefore of opinion, that the decree should be affirmed with costs, and the cause remanded, with directions to the court of chancery to make such a modification of the decree as I have suggested, if it be asked in due time by either party, and if the balance of the debt may be satisfied out of the rents and profits within a reasonable time.

PARKER, J., con curred.

CABREE, J.

I also concur in the opinion of my brother Stanard upon all the points determined by it. But, contrary to the opinion intimated by him, I incline to think, that the 17th section of the statute of limitations is applicable to a judgment recovered against a testator or intestate in autre droit, as well as to a judgment against him in his own right. However, it is not necessary to decide the point, and I desire it to be understood that I do not mean to give an opinion upon it.

*TUCKER, P.

The bill was originally filed against the administrator of Moses Mann, to recover from his estate the amount of a judgment rendered against him in his lifetime as executor of Andrew Hamilton. The heirs were afterwards made parties, as there seemed likely to be a deficiency of personal assets of Moses Mann’s estate. The bill charges a wasting of the assets of Hamilton, and devastavit by Moses Mann, in failing to pay the judgment against his testator Hamilton’s estate.

It is objected, that the devisees of Mann were not chargeable under the executor’s bond, as there was no ascertained debt due from him at the time of his death. This objection cannot prevail. The statute does not require, that the demand shall be ascertained, in the sense here intended. It does require, indeed, that the action whereby a devisee shall be charged, shall be an action of debt; and accordingly it has been decided, that a devisee cannot be charged under the statute in an action of covenant. But it never has been questioned, that debt will lie against a devisee upon a bond with collateral condition; and it has been even suggested by a learned writer, that it is adviseable sometimes to take a bond with condition to be void if the vendor has good title &c. in order to guard against the effect of his devising away his real estate : the penalty, he says, would be a debt recoverable under the statute. Sugd. Haw Vend. 418. The statute, indeed, quoad the action of debt, places the heir and devisee on the same footing ; and I have never heard it doubted, that debt would lie against an heir on a bond with collateral condition, merely because the damages to be assessed for its breach were not ascertained. The case before us, though instituted in equity, where alone the personal and real representatives could be convened, is, in effect, an action of debt, and ought to be so treated. The creditor might have sued on the bond at law, and thrown the charge on the devisee, without any inquiry *whether there was any personal estate out of which the demand could be paid. It was for the benefit of the devisees, and agreeable to the principles of the court of equity, that instead of this suit at law, he should resort to the court of chancery, in order to exhaust the personal assets before charging the devisees. That court, therefore, should concede to him the rights and the remedies which he would have had, if he had pursued a less forbearing and equitable course towards the devisees.

The next objection is the statute of limitations. It can have no application, I conceive, in this case. I am of opinion, that the statute did not begin to run from the appointment of the administrators He Grand and others. That appointment was a nullity, as Moses Mann did not die intestate; and though payments made to the administrators might have been good, (Allen adm’r &c. v. Dundas, 3 T. R. 125,) yet the court of probate could not divest the executor’s right. Toll. Haw Ex’ors 120. Nor could the creditor have instituted any efficient proceeding for the revival of a suit or judgment against the administrators; since upon the revocation of their letters of administration, the suit must have abated, and never could have been revived and continued against Hewis Mann the administrator with the will annexed. The two administrations could not unite, the first being, quoad the last, a mere nullity. I think, therefore, in considering this question, we must regard it as if there never had been administration granted to He Grand and others in 1822. If so, the statute began to run from October 1823, and so offers no bar, as the suit was brought early in 1828.

I will add, that I have a strong impression, that the statute has no application to an action of debt suggesting a devastavit, nor to an action on the administration bond. For the action suggesting a devastavit is not an action on the judgment. It is an action for the tort — the '^wasting. The plea to it may be not guilty. It is likened to a criminal prosecution. The judgment is not the gist, it is but inducement. 1 Hd. Raym. 1503 ; 1 Chitt. Plead. 477. It will not alone maintain the action. There must be proof of a wasting, either by a return of nulla bona or otherwise. It is moreover a demand against the executor personally, whereás the judgment was not against him, but his testator’s goods. For these reasons, I strongly incline ' to think, that the effect of the clause in question is not to protect Moses Mann’s estate against an action for the waste, but to protect the administrator de bonis non of Hamilton against an action of debt or scire facias to revive the judgment against him.

I see no other objection to the decree that requires remark, except that a sale of the lands should not have been decreed, until it appeared, that the debt could not have been discharged in a reasonable time out of the rents and profits. This objection would, I conceive, have been fatal to the decree had it been final; but as it is only interlocutory, I concur with my brother Stanard that it may be modified, and that the decree should be affirmed with costs, and the cause remanded, with directions to apply the fund in the power of the court, unconditionally, to the satisfaction of the plaintiff’s demand, and if that prove deficient, to provide (if it be asked) for the payment of the balance out of the rents and profits of the lands, if adequate thereto within a reasonable time, and if not, then to decree a sale of so much of the land as will suffice to satisfy the balance due.

Decree affirmed with costs, and cause remanded to the circuit court of Greenbrier, “with directions to that court, (if the appellants or appellee should, before the said decree shall be executed by a sale under its provisions, ask it) to modify the said decree, so as to direct ^unconditionally the application of the funds subject to its order, to the satisfaction of the appellee’s claim, and to provide for raising the residue of that claim, if any, out of the rents and profits of the land directed to be sold, instead of raising it by sale, if such rents and profits will pay the balance in a reasonable time; and if not, to raise it by sale.”  