
    Andrew William Swindersine v. Elizabeth Miscally, and Others.
    An administrator purchased certain slaves at a sale, made by him of his intestate’s estate, and remained in possession of them for a number of years, when he mortgaged them, to secure repayment of a sum of money advanced to him, and delivered the slaves to the mortgagee, who had no notice of any defect in the title of the mortgagor. The mortgagee remained in possession for three years, when he died, and the slaves went into possession of his administratrix, who remained in possession for six months, when she died, having previously, however, had the slaves sold under the mortgage, and bought them in : upon her death, the slaves went into the possession of her administratrix, who continued in possession for three years and eight months. Upon a bill then filed by tbe distributee of the first intestate, who was of full age when the mortgage was executed, held, that he could neither recover the slaves, nor follow them for payment of a balance due by the administrator, on his administration of the intestate’s estate.
    The remedy of a distributee against the surety of an administrator, for the recovery of a balance due by the latter on his administration, is in general at law; but if it be necessary, in order to obtaining satisfaction, to set aside a voluntary conveyance made by the surety of his own estate 5 or to require the executors of the donee to account for the property included in the voluntary conveyance; the distributee may proceed against them in equity, in the same suit by which the default of the adminietrator is established. But the surety, or if he be dead, his administrator, must be made a party.
    
      Leave given to amend, where a decree could not be made for want of administration on the estate of a necessary party, who died before the commencement of the suit.
    Heard by De Saussure, Chancellor, at Charleston, April, 1829.
    Andrew Swindersine, the father of the complainant, died intestate, in November, 1802, leaving the complainant, and a daughter, both at that time minors, the distributees of his estate ; and in December of the same year, administration of his estate was granted to Daniel Miscally. In February, 1803, the administrator, by permission of the ordinary, sold the whole of the personal estate, with the exception of two slaves, which were reserved for the use of the intestate’s children ; and, at this sale, he purchased, for himself, several slaves, and other property, to the amount of $1,019,76. The intestate’s daughter, afterwards intermarried with William J. Berrie, and the administrator settled with them, in full, for her interest in her father’s estate. He also made several payments to the complainant’s guardian, and to the complainant, himself, after he came of age, but never had a final settlement with him. The complainant came of age, in 1812, and in 1815, filed a bill against the administrator, for an account of his administration : and in the progress of the suit, an account was taken, and a balance, of $891.54, was ascertained, by the commissioner, to be due by the administrator ; but before his report was filed, the suit abated, by the death of the administrator, in August, or September, 1817.
    In the month of July, 1817, the administrator, Daniel Miscally, was arrested, by a ca. sa., at the suit of the United States ; but was liberated, by his son-in-law, William Robinson’s paying the debt, for which he was arrested, amounting to $940 : to secure re« payment of which sum, Miscally executed a mortgage to Robinson, of the slaves which he had purchased, at the sale of Swindersine’s estate, in 1803 ; and, at the same time, delivered possession of the slaves to him. Robinson remained in possession of the slaves, un. til August, 1820, when he died, leaving a widow, and Elizabeth, an only child, then an infant of tender years, surviving him. The widow, Mary Ann Robinson, administered on his estate, and took possession of the slaves ; and in January, 1821, had them sold under the mortgage, and became the purchaser, for the price of $850. She, shortly afterwards, to wit, in February, 1821, died, leaving her infant daughter, Elizabeth, before mentioned, surviving her; and administration of her estate, was, in July, 1821, committed to her mother, Elizabeth Miscally, the widow of Daniel Miscally, who took possession of the slaves, and remained in possession of them when this suit was instituted.
    The sureties to the administration bond of Daniel Miscally, in 1802, were Alexander Gray, James Maul, and John Foy, all of whom, are since dead ; but in the year 1806, Daniel Miscally, having been required to give additional security for his administration, executed a new bond, with Edward Thomas, as surety. Edward Thomas died in the year 1817, intestate, and no administration has ever been taken out on his estate. Some years previous to his death, however, he executed a deed of gift, of all his estate, to his only son, William Thomas, reserving to himself an estate for life ; and upon his death, his son took possession of the estate under the deed of gift. William Thomas died in the year 1821, leaving a considerable estate derived from his father ; and leaving a will, by which he devised, and bequeathed, his said estate to Jacob Givliam, and Elizabeth Hughes, who has since intermarried with Da. vid Lawrence, and appointed the said Jacob. Givham, and Elizabeth Hughes, executor, and executrix, of his said will.
    On the 14th September, 1820, the complainant took out administration of the estate of Daniel Miscally; but returned to the ordinary, that he could find no effects of his intestate, whereof to make an inventory. On the 12th October, 1824, he filed this bill, to which, Elizabeth Miscally, the administratrix, and Elizabeth Robinson, the only child of Mary Ann Robinson, and Joseph Givham, and David Lawrence, and Elizabeth, his wife, executors, executrix, and legatees of William Thomas, were made the parties, defendants. And the prayer of the bill was, that the amount due by Daniel Miscally, upon his administration of the estate of Andrew Swindersine, might be ascertained, and established, by the decree of the Court; and, that as he had died utterly insolvent, this debt should be ordered to be paid, either by a sale of the slaves in the possession of the defendant, Elizabeth Miscally, or out of the estate of Edward Thomas, in the bands of the other defendants.
    The answer of the defendant, Elizabeth Miscally, denied, as far as she knew, or believed, that Robinson had any notice, that the slaves mortgaged to him, had been purchased by Daniel Miscally, at his own sale of Swindersine’s estate : and she averred that the purchase had not been questioned up to the time of the mortgage, nor until long afterwards ; but that Daniel Miscally supposed he had an unquestioned title to the slaves, and that Robinson would never have advanced his money, if he had suspected any defect in the security. This defendant, also stated, that she held the slaves for Elizabeth, the infant daughter of Robinson, and wife, and claimed the benefit of the statute of limitations.
    The defendants, Lawrence, and wife, by their answer, submitted, that the complainant’s remedy against the estate of Edward Thomas, if he were intitled to any, was at law ; and that these defendants, were not liable either in law, or in equity, to the complainant’s demands against Edward Thomas, whom they did not represent. They also claimed the benefit of the statute of limitations.
    The defendant, Gfivham, who was absent from the State, and had been made a party, by rule, had not filed any answer.
    The cause was referred to the commissioner, who reported the balance formerly ascertained by him to be due on Daniel Miscally’s administration, with interest; and the cause was heard upon his report, and other evidence.
    De Satjsstjee, Ch. There can be no doubt as to the amount due by Daniel Miscally on his administration ; and the only question is, by whom it is to be paid.
    The complainant contends, that he is intitled to recover the slaves mortgaged to William Robinson, from the administratrix of Mrs. Robinson. And the ground relied on, is, that the administrator purchased the slaves in question, at his own sale, of the intestate’s estate, which he could not lawfully do ; that the purchase therefore was void, and the slaves remained the property of the estate of Swindersine: and that Miscally had no right to mortgage them as his property, to Robinson, and the mortgage, and sale under it, were consequently void.
    The defendants contend; that the rule, which forbids executors, and administrators, purchasing at their own sales, although not a new one, had not been acted upon in this State, in the year 1803, and was not known when the purchase was made by Miscally: that the purchase was a fair one, as indicated by the price; and that the mortgage to William Robinson, was perfectly fair, as the latter paid a large debt due by Miscally to the United States, and took the mortgage to secure repayment of the money advanced, without notice of any objection to his title. It was further argued, that as Robinson held possession of the slaves, from 1817, until his death, in 1820, and his representatives have been in possession ever since, with an intermediate sale, in 1821, to foreclose the mortgage, the statute of. limitations would protect his title; for even if Robinson were to be considered a trustee, it was by implication, and construction, only, and the statute runs in such cases. And that besides, this suit is not for the recovery of the slaves, which would be properly at law, but for the recovery of the debt due by Miscally, on the balance of his accounts.
    These points were ably argued by the counsel, and I have considered them fully; and I concur in opinion with the counsel for the defendants, the administratrix of Mrs. Robinson, and the infant Elizabeth Robinson. The bill must, therefore, be dismissed as to them.
    It remains to inquire, whether the complainant is intitled to demand payment of the balance due by Miscally, on his administration, out of the estate of his surety, Edward Thomas, in the hands of the other defendants.
    This demand is repelled by them, first, on the ground, that Ed. ward Thomas was not an original surety for the administration, and was not responsible for the acts of the administrator, prior to his becoming such surety; and that as Miscally’s purchase was long prior to Edward Thomas becoming surety, the estate of the latter cannot be made liable for that purchase. To this it was answered, that this suit is not for the recovery of the slaves, but for an account of the general administration of the estate, to which Miscally, upon taking the account, is found to be indebted in the sum of $891.54, with interest, as appears by the report of the commissioner ; and that the estate of Edward Thomas, must be held liable for that balance, or else the taking his bond in 1806, was a mere nullity : and that in executing that bond, Edward Thomas became the substitute, and consented to the discharge, of the other sureties; who are all dead, in doubtful, or insolvent circumstances. I acknowledge that I feel considerable difficulty on this point, but have concluded, with much hesitation, that Edward Thomas’ estate is liable, under the circumstances stated.
    Another objection made by these defendants is, that they do not hold any property of Edward Thomas, but claim under William Thomas, and have no relation with the complainant, in any capacity, and are not liable to his demand. The defendants, it is true, claim under William Thomas, but all the property was derived from Edward Thomas, under his deed of gift to William, which was executed, long after the donor became the surety to Miscally’s bond. It is conceded, that William Thomas had no other property, but that so given to him by his father. Under the circumstances of this case, two questions arise out of this objection. First, can this property be made liable to the complainant’s demand ? Second, can it be made so in this form of proceeding 1
    
    
      There is no doubt, that voluntary gifts, of moderate portions of a man’s property, to his children, on their setting out in life, will be sustained, although he may be somewhat indebted at the time. But a voluntary gift of all, or most, of a man’s estate, especially when he retains the possession, and enjoyment of it, for his own life — and this at a time when he is in debt, or under responsibilities — has always been considered fraudulent as to creditors : and, I think I am bound, so to consider the voluntary deed in this case, so far as it interferes with creditors.
    On the next question, whether the complainant can get at the property in dispute, in this form of proceeding, and in the relation in which the parties stand to each other, many objections are stated on the part of the defendants. It is urged, that the defendants do not hold as the heirs, or representatives, of Edward Thomas, but from William Thomas, who had no privity with, or relation to, the transactions, on which the complainant’s claim is founded ; and, therefore, the complainant’s claim cannot be maintained against them. The position is correct, although the conclusion is not sustainable. The defendants claim under the will of William Thomas, but the property was derived by him from his father’s gift; and both they and William Thomas are mere volunteers. The question is, whether, under these circumstances, the complainant can pursue the property, wherever he finds it, and make it liable, in the hands of its present possessors, for the default of Edward Thomas, the original holder : and it seems to me, that it would be extraordinary, if persons holding property, thus acquired, could not be made liable to a just demand. In principle, it is just that they should be made liable, to the extent of the value of the property. In practice, property has been so pursued, and those who hold it, made liable to the demands of creditors.
    One other objection remains to be considered. It is contended, that these defendants are protected by lapse of time, and the statute of limitations. The statute would not commence to run in favor of Edward Thomas, until the responsibility of his principal was fixed by the judgment of a Court, or his default ascertained in some other satisfactory way. An administration may last twenty years; and it is only on the failure of the administrator to account, and pay over the balance, that the liability of the surety commences. Under the facts of this case, it does not appear to me, that the statute of limitations, or lapse of time, will protect the defendants.
    It is therefore ordered, and decreed, that the report of the commissioner, establishing the sum due by Daniel Miscally, the admin*s*ra*or °f &® estate of Andrew Swindersine, be confirmed 5 and that the defendants, David Lawrence, and Elizabeth his wife, and Jacob Givham, do pay the same, with interest, as far as the funds of William Thomas, derived from the estate of Edward Thomas, came to their hands. The costs of suit to be paid by the defendants.
    From this decree the defendants, Lawrence and wife, appealed ; and the complainant, also, appealed from so much of it, as dismissed the bill, as to the defendants, Elizabeth Miscally, and Elizabeth Robinson.
    Grimke, for the complainant.
    Hunt, for the defendants, Lawrence, and Wife.
    De Saussuke, for the other defendants.
   O’Neaul, J.,

delivered the opinion of the Court.

plainant was not intitled to recover against Elizabeth Miscally, the administratrix of Mary Ann Robinson, who was the administratrix of William Robinson, nor against their daughter, Miss Elizabeth Robinson. His decree, therefore, so far as it dismisses the bill as to these defendants, is affirmed. In this case the Court concurs with the Chancellor, that the com-

As to the other defendants, until Edward Thomas is properly represented in Court, no decree can be made against them. The Court will not, however, for want of an administrator of the estate of Edward Thomas, turn the complainant out of Court; but the bill will be retained, and leave given to amend, so as to make the administrator a party, when the complainant shall have procured administration to be granted.

On the general jurisdiction of the Court, it appears to me, that the ease stated in the bill is such, as intitles the complainant to the relief of this Court. Edward Thomas was the surety of Daniel Miscally, in his second administration bond ; and the effect of that may be, to render him accountable for the whole of the funds, in the hands of the administrator, when that bond was executed. Under ordinary circumstances, the complainant’s remedy would have been at law : but in the case before us, Edward Thomas vo. luntarily conveyed away his whole estate, after he had incurred this liability ; and to have this conveyance set aside, is essential to the complainant’s remedy. This furnishes a ground for his coming into the Court of Equity, which can alone afford adequate relief. Besides this, the donee of Edward Thomas is dead, and has, by his will, disposed of his property; and his executors are therefore called upon to account for it. And if the complainant should,'on the merits, be intitled to recover, this is another circumstance, which renders the aid of the Court of Equity necessary, to the assertion of his rights. The objection to the jurisdiction of the Court is, therefore, overruled.

The cause is remanded to the Circuit Court, to enable the complainant to amend his bill, which he has leave to do, by making the administrator of Edward Thomas, when administration of his estate shall have been granted, a party to this suit, and, after such amendment is made, then for the trial of the cause upon its merits.

Johnson, J., and Harper, J., concurred.

Decree opened, and cause remanded.  