
    *Ebenezer Matoon v. The Heirs and Administrators of Amasa Clapp, deceased, et al., and Cole & Field.
    In a bill in chancery to subject an equitable interest in lands to the payment of a debt due from a security in a bond, a judgment at law in favor of the obligee against such surety, is prima facie evidence that the bond was made and the condition broken.
    The admission of an administrator is prima' evidence of the indebtedness of the estate he represents, in any particular case of 'admission.
    A judgment in favor of an administrator defendant, in a court of the State of Massachusetts, upon a plea of the statute of limitations of that state, is no bar to a bill in equity in Ohio, between the same parties, seeking to subject after discovered property of the decedent to the payment of the debt.
    A decree'to marshal descended lands for the payment of debts, can only be made where the demand of such marshaling is made in the pleadings, 30 as to present a case for proof at the hearing.
    This is a bill in chancery reserved in the county of Geauga.
    The following facts appear upon the bill, answers, and testimony.
    In 1799, the plaintiff was the sheriff of the county of Hampshire, in the State of Massachusetts. He appointed Thomas Kidd a deputy, who gave him a bond of indemnity, with Amasa Clapp and Charles Kidd his sureties. Clapp died in 1804, and the administration of his estate was committed to Solomon Clapp and A. Rice. Kidd having failed to pay over moneys collected, a suit was instituted, in 1807, against the surviving obligors of the bond, and a judgment for the penalty was rendered by the supreme judicial court of Massachusetts, in 1810, with leave to take out execution for the sum of $1,528.48. In 1815, no satisfaction having been obtained upon this judgment, and the defendants to it being insolvent, proceedings, conformably with the law of Massachusetts, were instituted against the administrators of Amasa Clapp, for their liability upon the bond. The defendants pleaded the Massachusetts statute of limitations. This suit was referred to arbitrators to decide, who found in their award that the claim was barred by the statute of limitations; upon this report, judgment was entered for the defendants.
    By the statute of limitations of Massachusetts, no claim can be enforced against an administrator, unless it shall be presented within four years from the date of administration, except only where the creditor has failed to present his claim, and shall sub' sequently find property unadministered upon. The plaintiff avers, that he was ignorant of Kidd’s delinquency until 1807, and he then supposed the surviving obligors of the bond able to respond the amount, and that he pursued the claim against Clapp’s estate, as soon as he found he could not otherwise obtain payment.
    When Amasa Clapp died, he held an equitable title to about 1,000 acres of land in the county of Geauga. This interest is not noticed by the administrators, in their administration account, although the estate is shown to be insolvent. In 1805, Lord, the trustee of the legal title, conveyed this land, together with sundry other tracts of land in Portage and Medina counties, to Salma *Clapp and Alvin Eice, the administrators of Amasa Clapp, in trust for the benefit of the estate of Amasa Clapp. This deed was not recorded until 1810. The plaintiff avers, that he was ignorant of this property until 1822 ; that he proceeded as early as convenient to assert his claim ; he procured the appointment of TJ. Seely, an administrator de bonis non, etc., in 1827, to whom the claim was presented and allowed. The defendants, Cole and Field, have purchased the land, and this bill is brought against all parties in interest, seeking satisfaction of the balance of the judgment, by a sale.
    This suit was instituted in 1829. In December, 1835, it was heard before this court, in bank, on a general demurrer, but by accident, was not reported. It stand’s now for hearing, upon the answer of Cole, which demands proof of the existence of the debt, denies that the admissions of Seely (who has been removed from his administratorship), are binding upon him, and asserts that he purchased for an adequate consideration, without any “certain knowledge” of the bond, or “any certain information,” that Kidd was a deputy, etc., or that “ he had, at the time of his purchase, or that he has yet obtained any knowledge that complainant had, or now has, any claim against the estate of said Clapp.”
    E. Hitoi-ioock and Webb, for the complainant.
    J. H. Paine, J. O. and B. T. Wright, for defendants.
   Judge Lane

delivered the opinion of the court:

The pursuit of the plaintiff’s rights in equity is admissible, as well because he seeks to subject to the payment of debts, the estate of a deceased obligor, as because that debtor hald only an equitable title to land, which can not be brought to a suit sale except under a decree. 6 Ohio, 233.

The liability of Amasa Clapp’s estate must be shown by satisfactory proof. The record from Massachusetts is prima facie evidence that the bond was made by Thomas and Charles Kidd, and that its condition was broken by Thomas Kidd, by which the plaintiff was damnified, to the extent of the judgment. 3 Ohio, 487, 225 ; 2 Ib. 355; 4 Ib. 104. The admissions of Seely, the administrator, are prima facie evidence of the liability of the estate of A. Clapp; he is a necessary party to such a suit, 5 Ohio 555, for *the purpose of admitting or contesting the debt, and representing the interests of the estate. His acts are not conclusive; but creditors are not required to go behind them, unless fraud or mistake is shown them.

The point most strenuously insisted upon is, that the judgment in Massachusetts, in 1815, forms a bar to all further proceedings. This defense does not consist in the statute of limitations, as applicable to this action ; nor in the antiquity of the claim, which under some circumstances furnishes evidence of payment; but in the position that a judgment has been rendered, upon the merits in a suit between these parties, which concludes their rights. Whether a judgment on a plea of the statute of limitations is a judgment on the merits, and binding on the parties, beyond the territorial operation of the statute, is a'qu6Stion which is not discussed, nor will it be now decided; it is intended at present, to give to the judgment the same effect it would produce in Massachusetts. Adverting to the statutes of that state, as furnishing the law of the case, we find administrators well protected from suits, on claims not presented within four years, except upon one contingency, viz., the discovery of other property, which had not then happened. The statute of limitations being a complete bar, not to the right, but to the remedy, in the state of things then existing, judgment was rightly given for the defendants. But had un ad ministered property been afterward found in Massachusetts, new relations would have intervened between the parties, under the exception, removing the restriction and conferring, as it were, a new right of action. The record shows, that by the adjudication of that tribunal, no right of action then subsisted; whether the right has been restored, by the occurrence of other facts since that judgment, is a question which has never been submitted to a court. We think, then, that this former judgment would have been no bar to this claim, in the State of Massachusetts, if the property not administered upon had been found there, and it will possess no higher force in our tribunals.

The defendant, Cole, insists that the land yet remaining in the hands of the heirs shall be first held for this debt. The right is well established, in a proper case. 6 Ohio, 238. But this privilege of marshaling descended lands is a distinct and affirmative claim, to be brought forward by the defendant, and plainly established by proof. This point is not made in the answer, but is suggested in argument only. Although other lands are referred to in *the bill, it nowhere appears what lands, of what value, or whether unsold. It would be hardly proper to postpone the plaintiff further, unless the right to impose the burden elsewhere were more clearly shown.

The defendants, Cole and Fields, claim to be purchasers, for a valuable consideration, without notice. Without adverting to the very guarded terms, in which notice is denied, or the want of averment of the payment of the full consideration, and without examining the proof, which seems to show express notice, it appears to us that the terms of the deed, from Lord, to the administrators, through which they must trace their title, are enough to charge them. 4 Ohio, 458.

Decree for plaintiff.  