
    
      Nelson Carlton & Co. and others vs. Paul S. Felder and others.
    
    Upon a judgment obtained in Alabama, on which execution was issued within a year and a day, no presumption of satisfaction arises under the statute of that State, although the execution was not renewed within the ten years allowed by the statute for such renewal.
    The interpretation of a statute of Alabama by her own Courts, the Courts of this State are bound in comity to adopt.
    It and B., co-partners, both of whom resided out of the State, and wore insolvent, were indebted to the plaintiffs. 1?. became entitled in this State to a distributive share of personality and choses in action in the hands of the administrator, and also to a distributive share of the lands of the intestate. Pending a bill by some of the distributees against the administrator and other distributees for partition and aocount, the plaintiffs filed a'creditor’s bill against F., the other distributees, and the administrator, to subject the interests of F. in the real and personal estate and choses in action to the claims of his crditors: — Held,
    That the Court had jurisdiction in the matter, the plaintiffs not having plain and adequate remedy at law;
    That the bill was properly filed as a creditor’s hill, and creditors not named in it and whose demands were not set out, might come in under the notice calling in creditors;
    That the eo-distributees of F. were properly made parties to the bill;
    That it was no defence to the bill that another suit was. pending against the administrator, as the proceedings in the two suits could be so managed that no inconvenience could arise. ^
    F. had appeared and pleaded to the bill and plaintiffs had been required to give security for costs: — Meld, that plaintiffs could not be required to give a bond of indemnity similar to an attachment bond.
    
      Held, that 3?. was not entitled to replevy his share of the estate by giving bond and security for its forthcoming, &a.
    
    It is not enough to bar proceedings in Equity that the plaintiff may, by great circuity and at great inconvenience, at last come at a remedy at law. His remedy must be plain and adequate.
    
      Before Wardlaw, Oh., at Orangeburg, February, 1853.
    A sufficient statement of this case is contained in the decree of the Circuit Court which is as follows :
    Wardlaw, Ch. In this suit, the plaintiffs, in behalf of themselves and such other creditors of Edmund J. Felder as may come in and contribute to the expense of the suit, seek to make liable to the payment of his debts, the undivided interest of said Edmund J. Felder in the estate of his late half brother, John M. Felder, who died intestate, on the 1st of September, 1851, leaving a large estate, consisting of lands, chattels and credits, to be distributed among brothers and sisters of the half blood, and nephews and nieces of the whole blood. The plaintiffs, at April term, 1839, of the circuit Court of Autauga county, in the State of Alabama, recovered judgments for large sums of money against Edmund J. Felder and James Bradford, partners, trading under the style of Felder and Bradford, and within a year and a day lodged executions, fi. fa,; and these executions being returned nulla bona, the plaintiffs seem not to have taken any further steps towards the enforcement of their claims, until this bill was filed, July 7, 1852. The administrators and distributees of John M. Felder, deceased, are the defendants. The bill alleges that shortly after the rendition of the judgments against him in Alabama, the said Edmund J. Felder left that State, and has not since had any fixed residence, but has abided temporarily in Mississippi, Texas and California; that said James Bradford is utterly insolvent, and that said Edmund J. Felder is utterly insolvent, and without property, beyond his interest as a distributee of John M. Fel-der ; and the bill prays that all the interests of said Edmund J. Felder in said estate may be ascertained, and subjected to the payment of his debts, and that to this end the administrators may account for their transactions in the estate of their intestate, including their receipts of the rents and profits of his real estates. The administrators have filed an answer, in which they consent to an accounting, if required by the Court, except for some sum which they claim to have paid over to E. J. Felder, without notice of his debts. Edmund J. Felder, by demurrer and plea, resists the bill on various grounds; and it is as to the validity of the demurrrer and plea that my judgment is sought. The questions raised by these pleadings will be considered, without minute exposition of the pleadings themselves.
    This defendant insists that the plaintiffs are not entitled to the jurisdiction of this Court, inasmuch as they have a plain and adequate remedy at law, and they have not exhausted their legal remedies. As the defendant resides beyond the limits of the State, no process for the collection of the debt due by him could be issued by the Court of Law, except attachment; and that could be levied at most upon the defendant’s distributive share in the land of the intestate. In Young vs. Young, 2 Hill, 425, it was held that the distributive share of an absent debtor in personal estate in the hands of an executor or administrator, and the proceeds of the real estate sold by order of the Court of Equity and in the hands of the commissioner, were not subjects of attachment; and it is further said, that it may be well questioned whether the interest of a distributee in real estate before partition, be subject to attachment. In deciding the point that attachment will not lie against an absent executor or administrator, the Court in Weyman vs. Murdock, Harp. 127,justly argue that “it would derange the whole course of administration and marshalling of assets, if an attachment were permitted to bind or take away the property of a deceased person out of the hands of an executor or administrator, and prevent him from paying the debts of the testator or intestate, according to law.”' The right of a distributee in the lands of an intestate under the Act of 1791, until distribution is matte, is treated in Rabb vs. Aiken, 2 Me. Ch, 125, as a chose in action, an inchoate and contingent right, subject not only to the claim of creditors of the intestate, but also to the right of co-distribu-tees to have the whole land sold, or assigned to one or more upon payment of the assessed value, if such course, in the opinion of the commissioners to make partition, would be advantageous to the parties in interest; and that case seems to conclude that the undivided interest of a distributee could not be sold under an execution against him. This course of reasoning was not necessary to the determination of Rabb vs. Aiken, for there actual partition had been made, and the land vested in two of the distributees by judgment of the Court of Law, before levy and sale were made to pay the debt of another dis-tributee ; and the lien of the judgment creditor was divested by the judgment in partition. Title to lands cannot be in abeyance ; upon the death of an intestate the title to lands whereof he died seized must vest in his distributees, for his administrator cannot convey them, and there is no other person in whom the title can be supposed to vest. The estate of a tenant in common, is no more deficient in quantity than the estate of a sole tenant; and is equally liable to seizure and sale under execution or attachment. This train of remarks is substantially adopted from a MS. circuit decree of Chancellor Harper, in Anderson vs. Campbell. The same Judges who decided Rabb vs. Aiken, speaking by the same organ, afterwards, in Black vs. Steel, 1 Bail. 307, held that the interest of one among several heirs or distributees of land is liable to levy and sale under execution against him; and that the decision in Rabb vs. Aiken settles merely the right of co-distributees to have the land sold or assigned for partition, as paramount to that of a judgment creditor of the distributee, and consequently, that a sale for partition destroys the lien of the judgment. The vendee of a distributive share, of course, has no superior right to the distribu-tee, and purchases subordinately to the rights of creditors of the intestate and co-distributees; but these rights may be asserted, so far as I can perceive, as satisfactorily against the vendee as against the distributee. A sale of the interest of the distributee does not divest the liability of the lands for the debts of the intestate, nor limit the rights of co-distributees. There can be no eloigning nor absolute destruction of the subject by the tenant, as in the case of personal property; and for waste, and other incidents of possession, the vendee is liable to the same remedies as the distributee. Admitting the general right of creditors of an absent debtor to proceed at law by attachment upon his distributive share in lands, I think the plaintiffs could not so proceed against their debtor in this case. Before the institution of the present suit, namely, June 1, 1852, the said Edmund J. Felder and others filed their bill in this Court, against the administrators and other distributees of the intestate John M. Felder, for partition and account. This Court took cognizance of the subject matter before any proceeding was instituted in a court of concurrent jurisdiction as to the same subject. Creditors of a distributee can claim only through the distributee, and are privies to a suit instituted by him, and are bound by his selection of a forum. As is said in Rabb vs. Aiken, il this is a case in which the maxim that lis pendens is notice to all the world, applies with all its force. The land now in question was the subject matter of the suit for partition, and those proceedings must be conclusive upon all who were either parties or privies to it.” As this Court, when it assumes cognizance of a cause, must proceed to judgment according to the state of affairs existing at the filing of the bill, subject to .the differences produced by death, marriage, bankruptcy, assignment or other exceptional particulars, there is little variation of consequences between the institution and the judgment in a cause. After the institution of the case in this Court to ascertain their debtor’s share, the plaintiffs might have been liable for contempt if they had proceeded elsewhere; at least they were not bound to proceed in another court of concurrent jurisdiction. Granting, then, the truth of the proposition, that a creditor is bound to show that he has pursued his remedies at law to every available extent against his debtor, before coming into equity for the satisfaction of his debt from equitable assets, (although I suppose proof of the insolvency of the debtor, which is the end of the exhaustion of legal remedies, may be made by other equivalent evidence,) yet in the present case I am of opinion that the plaintiffs had no legal remedy to exhaust, and that they are entitled to the remedies of this Court. Bowden vs. Schatzell, Bail. Eq. 360; Napier vs. Gidiere, Sp. Eq. 215. The fault in the structure of the present bill is, in not making it directly subsidiary and incidental to the previous bill; but this is not made a ground of objection, and it may be regarded as cured by the pleadings of the defendants ; and any improper consequences to the defendants may be prevented by the orders of the Court in this case.
    I am of opinion, however, that the remedy of the plaintiffs in this Court is restricted to E. J. Felder’s distributive portion of the lands and chattels, or the proceeds of the sale of them; and that the plaintiffs have no right to call upon the administrators of the intestate for a general account of their transactions. This call for an account is equivalent, in substance and effect, to a creditor’s pursuing the debtor of his debtor for satisfaction — a circuity which might lead to interminable litigation among parties without privity. It is true that, in this case, the administrators do not object to the accounting, but the distributee objects, and, I think, he may avail himself of a defence which his trustees negligently or collusively fail to make. Massey vs. Massey, 2 Hill. Oh. 496; Peyton vs. Peyton, lb.
    This defendant also insists by plea that, by operation of the Act of Alabama, of 1835, Aikin’sDig. 621, the judgments of the plaintiffs must be presumed to be satisfied, as the executions upon them have not been renewed for ten years and more. If the effect of the Act-be to fix ten years instead of the term of twenty years by common law, as the lapse of timé which will raise the presumption of payment of judgments, the Act would affect the obligation of contracts, and operate wherever the contracts were sought to be enforced, and would be altogether unlike statutes of limitations upon particular actions, which belong to the law of the forum. The third section of this Act provides, in substance, that when an execution shall have been issued on any judgment within a year and a day after the rendition of such judgment, which shall not have been returned satisfied, it shall be lawful, at any time thereafter, to issue execution on such judgment without suing out scire facias, or other process to revive the same. And, in such case, the judgment shall not afterwards be presumed to be paid or satisfied, without actual payment or satisfaction entered, “ unless no execution shall be issued on any such judgment or decree for the space of ten years.” The fourth section of the Act declares the right to sue out a sci. fa. on such judgment, without limitation of time, where no execution whatever has been issued thereupon. In the interpretation of foreign statutes, we are bound to follow the construction given by the tribunals of the State which enacts them. This Act has come under the review o,f the Supreme Court of Alabama, in the case of Van Cleave vs. Haworth, 5 Ala. R. (N. S.) 188; and the judicial interpretation there given is not only conclusive as authority, but just and sound. The Court says: “ The only new rule, then, intended by this statute seems to be that when a period of ten years elapses, from the suing out of an execution, without any continuation of the process, the same presumption of satisfaction shall arise as does the omission to sue out execution within a year and a day. It would be very absurd to suppose that no absolute presumption could arise of payment, when there was an entire omission to sue out execution for any period short of twenty years, and yet to hold that the omission tojcontinue one within ten years should be a complete bar. W e consider, then, the presumption of payment spoken of in the last clause of the third section, as only arising to such an extent that no execution can be sued out after a lapse of ten years, in continuing the process, without reviving the judgment by scirefacias.” The plea is overruled. The judgments in. Alabama, although conclusive evidence of indebtedness here, create no lien in South-Carolina, and have no superior rank in the order of payment over simple contracts of the debtor. Equality is equity.
    It is ordered and decreed, that the Commissioner of this Court call in, by advertisement in some newspaper for three months, the creditors of Edmund J. Felder, to present and prove their demands, on or before any day thereafter, to be peremptorily fixed by said Commissioner; and that he report upon said debts to this Court, at its next regular sitting.
    It is further ordered, that the plaintiffs on the record give security for the costs of this suit, on or before the first of November next, or that the bill be dismissed.
    The defendant, E. J. Felder, appealed, on the grounds :
    1. Because the bill ought to have been dismissed as to Gabriel Felder, Jos. Pou, and Eliza M. Pou, his wife, against whom no case was made.
    2. Because the matters and things set forth by way of demurrer and plea, to witThe plain and adequate remedy at law; the ■ pendency of another suit; the want of jurisdiction, and the presumption of payment under the Alabama statute, constituted a valid sufficient defence for Edmund J. Felder, and the bill ought to have been dismissed as to him.
    3. Because on the case as made by-the pleadings the bill ought to have been dismissed.
    4. Because leave to answer should have been-granted to Edmund J. Felder, he being entitled so to do according to the rules and practice of the Court, even if his demurrer and pleas had been correctly overruled.
    5. Because even if the bill be sustainable, the relief granted ought to have been confined to the creditors expressly named in the bill.
    6. Because even if the bill be sustained, the amount of property impounded by the decree ought to have been limited to the demands expressly sued' on, or at most to the demands which shall be rendered in by a certain day.
    7. Because the creditors ought to have been required (as in cases of attachment at law,) to give bonds of indemnity in double the amount of their demands, to save harmless the said Edmund J. Felder.
    8. Because the said Edmund J. Felder ought to have been allowed to replevy his share of the estate by giving bond and security for the forthcoming of the property impounded, or so much thereof as may be sufficient to pay the demands sued on or, at most, the demands to be rendered in by a certain day.
    9. Because the said decree is in other respects contrary to Law and Equity.
    Bellinger, Memminger, for appellant.
    
      W. M. Hutson, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

The preliminary enquiry, in this case, is, whether the judgments obtained in Alabama against Felder and Bradford, and set out in the bill, are extinguished by the statute of that State relied on in one of the pleas. If they are, the case is at an end; and we are saved the consideration of every other question argued before us. But, in my opinion, the observations of the Chancellor on this point, are clearly correct. If the statute were open to us for construction, it scarcely admits of a doubt. By the common law, where a year and day are allowed to elapse, the presumption of satisfaction is so far raised, that a second execution cannot be issued, as of course; and the party is left to revive his right to execution by scire facias ; or to sue upon his judgment, in debt. By our own statute of 1827, the period within which a judgment creditor may issue a second execution is extended to seven years. If he allows that time to elapse, he is driven to his sci. fa., or his action on the judgment. The Alabama law differs in no respect from ours, except that the time for renewing executions fixed by the latter is seven years; whereas it is extended to ten by the former.

But the interpretation of the statute of Alabama, by her own Courts, is conclusive, and we are bound, in comity, to adopt it. This is familiar and well settled law. The case of Van Clave vs. Haworth, referred to in the decree, is decisive.

We are, therefore, to look into the remaining questions in this case: and I shall dispose of them by considering whether the plaintiffs are entitled to remedy in this Court, and entitled to it in the way pointed out in the decree.

The plaintiffs present themselves in South Carolina with several judgments obtained by them in a sister State. These judgments are subsisting to that extent, that if they could bring in the defendants by the service of legal process, they could make them answer in the law Courts, in an action of debt. But neither of the defendants is in the State. So the bill avers: and such appears to have been the fact at the institution of the present suit. What are the plaintiffs to do ? It is insisted by the defendant Edmund J. Felder, that they have ample remedy at law; and, therefore, cannot come into equity.

It is undoubtedly true that if a party have legal remedy, plain and adequate, it is a good bar to his proceeding in this Court. But let us consider whether these plaintiffs had, at their command, a legal remedy of that character.

It is not enough that a party may, by great circuity, and at great inconvenience, at last come at a remedy at law. His remedy must be plain and adequate.

Both the judgment debtors being absent from the State, how were the plaintiffs to recover against them at law, so as to subject their property lying here ? There was no possibility of bringing them into Court by personal service of process ; and they had no place of residence here where process could be left. And if one of them had been found here, or had had a place of residence here, rendering it possible to implead him: it must be remembered that, the cause of action being against partners, it was necessary to bring in the other partner — or proceed under the special statute; under which the liability of the absentee party must be foregone. Is that a plain and adequate remedy which demands a virtual and, it may be, a perpetual release of one of the debtors?

But the case made, is that both the debtors were out of the State, though one of them has since appeared to the present suit. Only one of them (Felder) had property in the State. It is said that the plaintiffs might have proceeded in an action of debt by way of foreign attachment. There are several reasons why this would not have afforded a remedy.

The ultimate liability of Bradford must be waived in such action, unless he could be made a party. Granting that the. attachment might have been levied on a portion of Edmund J. Felder’s interests in the estate of his disceased brother ; that would have sufficed only to affect him, so as to induce him to become a party. The proceeding by foreign attachment, originating in the custom of London, is intended to operate in rem, by drawing the party interested in the property attached to attend to his interests, and appear and defend the suit. If he fails, the judgment when obtained is to operate on that property.

But though the several property of partners be liable to partnership debts, the attachment of the property of one partner is not a sufficient means to bring both the partners into Court, without which the action must result in a judgment against one of them and the virtual discharge of the other.

If Felder had dissolved the attachment, and appeared to the action, and pleaded in abatement the non-service of Bradford what would have saved an abatement of the case, but the statute of Judge Prioleau, relating to partnership cases? which would have compelled the creditors to leave Bradford out of their judgment.

Would such a remedy have been plain and adequate ?

Again, We are not to know the value of the different species of property to which Edmund J. Felder may be entitled in his brother’s estate, any more than the amount of his debts. It is admitted that his interests in the real estate are subject to the process of attachment. His interests in the tangible personal property in the hands of the administrators, are not liable; nol-is his interest in the choses in the same hands. These are equitable interests . They cannot be taken out of the hands of the administrator, without deranging his administration. Nor, as has been decided, can he be made garnishee, in respect to them. Now suppose the interests of this distributee in the real estate, (of whose value we are to know nothing,) should prove insufficient to pay the judgment of the attaching creditor when obtained; it has been adjudged that the residue of that judgment is ineffectual as a further demand against the debtor, Would a remedy be at all adequate, which might be attended with such consequences ?

Suppose the tangible personal property divested out of the administrators by an assignment, in gross, to the distributees : still, though thus changed from an equitable to a legal interest in them, the undivided share of Edmund J. would not be liable to the levy of an attachment. The interest of a party in real estate, held jointly with third persons, is subject to levy and sale, because it passes by deed and assignment. But such an interest in personalty is not so subject, because it passes only by delivery; and it can neither be taken possession of under the levy, nor delivered to a purchaser without committing a trespass on the other joint owners.

If all these difficulties, both with regard to the real estate and the tangible personal estate, were gotten over; still, as I have repeatedly remarked, we cannot legally know their value; and, of course, cannot know whether they would afford a full remedy, without resorting to the accountability of the administrators.

With respect to choses for which the administrators are accountable, though it was, perhaps, once doubted whether the creditor of a distributee was entitled to maintain a bill here ; the case of Kinloch vs. Meyer (Speers, Eq. 427) has settled his right to do so. The appeal by the defendant (E. J. Felder) opens this part of the decree ; and we avail ourselves of the opportunity to modify it in this respect. The objection that equity does not entertain a bill against the debtor of a debtor cannot avail when the absence of the debtor of the suing party prevents his remedy by compelling an assignment, and when he is obliged to adopt a proceeding in this Court analogous to an attachment at law. In attachments, a very frequent, and sometimes the only, remedy consists in proceeeding against debtors of the absent debtor as garnishees.

It is objected that no creditors are entitled to relief here but the specific creditors named in the bill. The objection is not to the frame of the bill, as a creditors’ bill; but that whatever the frame of it, no creditor not named in it, and whose demands are not set out as causes of suit, should be helped by this Court. It is sufficient to say that this very point was considered and decided in Heath vs. Bishop, so far as remedy is sought out of equitable assets. It may be necessary, for aught we can know — as I have repeatedly intimated — to resort to the assets in the hands of the administrators in this ease for a full satisfaction of the demands of even the creditors named in the bill: in which case all creditors are entitled to come in and claim. Of course, we must leave it to a future occasion, when the debts shall be stated, and the different sources for their payment set out, to decide as to the ratio in which the creditors shall be allowed payment out of the different funds.

Again ; it is objected that the co-distributees of the debtor, E. J. Felder, have been improperly made defendants in this case. The objection comes from him, and not from them. But allowing it the force of their authority, it is clearly not tenable in this case. In Kinloch vs. Meyer, before referred to, it was said that the necessity of making the co-distributees of the debtor parties, was not perceived. But that was a casein which the only subject pointed out for paying his debts was the accountability of the executor. Here we have (if we proceed to a full remedy, as we should) not only that accountability, but personal property to be cleared from the intestate’s debts, and subjected to partition, and real estate to be divided, in order to create distinct subjects to be subjected to the demands against E. J. Felder. To this partition, all the distributees are necessary parties.

Another objection made in this case, arises out of the suit instituted against the administrators one month before the filing of this bill. The administrators do not object to accounting here, though that suit is pending. It is E. J. Felder, who joined in bringing that suit, that raises the objection. Giving the utmost authority to his plea ; we are of opinion that the proceedings in the two suits can be so managed, in the practice of this Court, that no inconvenience shall arise.

The last point raised, is that this proceeding being in analogy to attachment at law, the plaintiffs should be required to give a bond similar to an attachment bond; and that E. J. Felder should be allowed to replevy.

To require a bond after appearing and pleading, as this defendant has done, would not be allowed at law. Besides, the bond, if given, would, as I apprehend, only subject the obligor to liability for the costs occasioned by his proceeding. The Chancellor has substantially provided for that, by requiring security to be given for the costs. As to the replevy, the matter is entirely misconceived. There has bqen nothing levied on; nothing has been taken possession of; there is nothing to be re-delivered or replevied. The land is where it was before. The assets are in the hands of the administrators. Surely it is not intended that, under the name of a replevy, we are to take the assets out of their hands, and deliver them to E. J. Felder. If, after partition of the personalty, this defendant desires possession of the part assigned to him, pending the litigation with his creditors, perhaps upon application to the Circuit Court, he may obtain it, by giving proper security.

It is ordered that, except as modified by this opinion, the decree be affirmed, and the appeal dismissed.

DunkiN, Dargan and Wardlaw, CC., concurred.

Appeal dismissed. 
      
      
         Bush vs. Bush, 1 Strob. Eq. 379.
     
      
      
         Sp. Eq. 430; Young vs. Young, 2 Hill, 425.
     
      
      
        White vs. Floyd, Sp. Eq. 353-4, and authorities there cited
     
      
      
         4 Rich. Eq. 46.
     