
    John & Allen Brown, Admr's. vs. Porter.
    !. The act of 1842, ch. 98, which provides, “that the further time of two years be allowed to former sheriffs to collect all arrearages of taxes due them,7’ was intended to give to such Sheriffs, although they had ceased to be Sheriffs, two years to use the proceeding of distringasto enforce unpaid taxes, which they, as Sheriffs, had accounted for and paid to the State and county officers.
    2. The act does not interfere with the operation of any of the statutes of limitations of the State, and therefore does not warrant the collection by the Sheriff of any unpaid taxes, which would be barred in the Courts by any statute of limitations in force.
    3. Administrators and Executors are bound to plead the statute of 1789, ch. 23, limit, ing the time in which creditors must present their claims against the estate of deceased-persons, but no other statute of limitations are they bound at their peril to plead.
    4. The act of 1789 is limited to demands accruing against deceased persons in their life time, and docs not apply to any demands arising by contract, express or implied, with the Executor or Administrator. Such claims are affected by the common statute of limitations.
    5. Complainants, as administrators, and defendant, had a mutual settlement, at which they agreed not to plead the statutes of limitation on either side, and, at the settlement thus made, a balance was found against the complainants, which they promised to pay. Complainants failing to comply with their promise, the defendant proceeded to enforce his deb t. Complainants filed their bill of injunction, in which they pray, “That they be allowed all benefit of such statutes of limitation, or bar by lapse of time, as in the promises they as administrators ought to claim,” They are allowed the benefit of the statute of 1789, and a part of defendant’s claim ig thereby barred. Held, that the defendant should not be held to his agreement the consideration of which had failed, but should be permitted, on bis part also, to have the bene fit of such statute.
    The bill was filed on the 6th day of October, 1843, by John Brown and Allen Brown, as Administrators of Thomas Brown deceased, in the Chancery Court at Columbia, to enjoin Nimrod Porter, late Sheriff of Maury county, from selling by process of distringas, certain slaves belonging to the estate of their intestate. Nimrod Porter had been Sheriff of Maury county from 1826 to 1842, and, in his official capacity, had accounted with the State Treasurer and Country Trustee for the taxes due from Thomas Brown in his life time, and from his estate after his death, during the whole time he acted as Sheriff. Thomas Brown died in 1834, and complainants took out letters of administration on his estate. Porter had numerous dealings with Thomas Brown in his life time. The deceased was indebted to Porter for money borrowed, and Porter was indebted'to the deceased for services rendered by him asa physician. Porter, as Sheriff, had collected money for the administrators. Under these circumstances, the complainants and the defendant, in the year 1842, agreed to an amicable settlement of their accounts, mutually promising not to plead the. statute of limitations. At this settlement, the complainants were found indebted to the defendant about $1000,. which they admitted to be just and promised to pay. Afterwards, and after Porter had ceased to be Sheriff, the complainants failing to pay the amount so found due, the defendant proceeded to enforce so much of his claim as was coming to him for taxes, accounted for by him as Sheriff to the State and county officers, by process of distringas, according to the laws in force, for the collecting of taxes due the State. The bill was filed to enjoin these proceedings, denying the defendant’s right to proceed by process of distringas after he had ceased to be Sheriff, claiming that upon a just and legal settlement, complainants would not be found indebted to defendant, and praying the benefit of the statutes of limitations and lapse of time, in the language set out in the opinion of the Court. The defendant answered, claiming the right to proceed in the manner he had begun to distrain for unpaid taxes, insisting that there was no statute bar in this State to the enforcement of such claims in the way proposed, contending that the settlement of 1842 was binding on complainants, but asking the benefit of the statute of limitations on his behalf, if allowed the complainants.
    The cause came on for final hearing before the Honorable Terry H. Cahal, Chancellor, on the 29th September, 1845, and a decree was rendered for defendant, the ground of which will appear from the following language therein used: “It appearing to the satisfaction of the Court that the defendant has paid the State and county tax due from the estate of Thomas Brown from the year 1826 to the year 1841; and it being admitted, that a judgment has been obtained by the State and county. against the defendant for the taxes due from said estate for the year 1842, and that said taxes have never been refunded to the defendant And the Court being of opinion, that the various acts of the Legislature giving further time to the different Sheriffs of this State to collect all arrearages of taxes due thereon and uncollected, operated as a sale and transfer by the State of her claim for taxes from delinquent tax payers to the different Sheriffs of this State, who had paid the same, and that the Sheriffs are thereby substituted to all the rights and remedies that the State had to enforce the collection of the same, and that the rights and remedies, so transferred to the Sheriff as aforesaid, are not barred by any of the statutes of limitation in force in this State. It is therefore ordered, adjudged” &c. Complainants appealed.
    
      S. D. Frierson and Houston, for complainant.
    
      Baxter, for defendants.
    It is insisted for the defendant that the statutes of limitation have no application in this case.
    1st. It is to be observed that all the statutes of limitation in force in this State, as well those that have been borrowed from England, as our own act of 1715, apply exclusively to the remedy without affecting the right, in all cases of mere money demands. Angel on Lim. 20.
    2d. The statutes of limitation in force in this State, do not embrace all remedies indiscriminately, but point out such remedies specifically as are intended tobe embraced; and amongst those embraced some are limited to one period, and others to a different one; and such remedies as are not embraced in the terms of the statutes, are not within their operation. C. & N. 439, 40, 41 &c.
    3d. When a remedy is once given, it must continue to exist indefinitely, so long as there is a right for it to operate upon; unless its operation be limited by some statute. This law has given a particular remedy for the collection of taxes, and unless that remedy is embraced within some of the statutes of limitation, it must continue to exist as long as there are any taxes in arrear.
    
      4th. It is insisted for the defendant that the remedy is not embraced within any statute of limitation in force in this State.
    1st. Because it is not expressly embraced by name, nor by any designation which shows it to have been in the mind of the legislature when passing those acts.
    2d. This proceeding is founded upon a statute which is a specialty, and specialties are expressly excepted out of the statute of 21 James, and are not embraced by our act of 1715 or any other act passed by our legislature.
    “It may be laid down as an unvarying rule, (says Angel 163) that all contracts founded on specialties are not within the statute.”
    “Indeed, (says the same author) it seems to be well established, that where the liability of the defendant is created, not merely by the act of the parties, but by the express terms of a statute, the plaintiff will not be barred.” Angel 163-4, Peace vs. Howard, 14 John 479. The liability of these complainants to pay these taxes is created exclusively by statute, outside of any contract or other act of the parties, and this of itself makes the liability a specialty. Jones vs. Pope, 1 Saunders 37-8.
    3d. But independent of the fact, that the liability of the complainants, and the remedy against them, are both created by statute, that liability becomes a specialty from another consideration.
    The assessment of taxes, by the proper authorities, and in the manner prescribed by law, amounts to a judgment in a court of record, again the owner of the property taxed, and a lien upon all his property, until the taxes are paid. Upon this subject the act of 1813, ch. 98, 2 Scott’s Revisal, 169, sec. 6, directs the county court to appoint justices of the peace, who are to fix a day, and advertise where they will attend in their respective captain’s companies, and receive a list of the taxable property. The 11th section directs those justices to return their lists to the county court in writing; and the 13th section directs the clerks of the county courts to record those lists at large. The 15th section directs the clerk to furnish the lax collector with a transcript from this record, which transcript is a warrant, in his hands, to distrain the goods and chatties of the owner, if he does not pay the taxes due. The act of 1835 is to the same effect. The proceeding possesses every attribute of a judgment.
    The law renders certain, what species of property shall be taxable, and the amount of tax it shall pay to the State. It constitutes the commissioners a court of inquest, with the exclusive jurisdiction, to inquire and ascertain the amount and description of taxable property owned by each individual in their respective districts, which they shall report to the county court in writing, where it is to be recorded and become a public record. Nor is this an ex parte business, for the owners of the property are duly notified by advertisement, and in this way made parties to the whole proceeding. The transcript of the record, in the hauds of the sheriff, is endowed with all the attributes of a fi. fa., so that whether it be a judgment in form or not, it is so, at least, in substance.
    A liability founded on a judgment, is never barred by the statutes of limitation. Angel on Lim. 168.
    5th. Again: by the act of 1815, ch. 78, C. & N. 601, it is declared, that the public tax shall be and remain a lien on all lands and other taxable property of the person returned for the same, &c.
    Although a debt may be barred by the statutes of limitation, it is yet sufficient to support a lien. Angel on Lim. 176.
    6th. These are the principles of law, that would apply in a controversy between individuals. But this is a proceeding at the suit of the State, for the use of defendant.
    The statutes of limitation never bar the State. And if the taxes had never been paid into the treasury by any one, and the State was now attempting to enforce collection of them for her own benefit, I apprehend it would not be pretended that the statutes of limitation formed a bar.
    7th. But this is an attempt, by the defendant, to use the name of the State to collect those taxes for his own benefit, to reimburse him the money he has paid the State out of his own pocket in satisfaction of those taxes. And it is insisted for the complainants, that whatever might be the rights of the State, if those taxes had never been paid into the treasury, the defendant having satisfied the treasury, the State has no right for him to be substituted to.
    If there is law in such an argument, there is but little equity to commend it to the favorable consideration of the court. But it is believed to be as fully sustained by law, as by equity. This court, I know, has decided, that where a sheriff or constable pays and satisfies an execution out of his own money, he cannot use that execution for his own benefit. But it has also decided, that an officer may purchase an execution and enforce it, or have it enforced, for his own benefit. And although, in principle, there is an obvious technical difference between the two cases, still it seems to me a very slight substantial difference. But be that as it may, the present case stands upon different grounds from the first mentioned case. The sheriff is the officer, or the servant of the State, to transact a particular description of business between her citizens, and the State has the right to direct the manner in which he shall do it. It has the right to say, that if he pays and satisfies an execution out of his own money, he shall not use that execution to reimburse himself, but that if he purchases the execution he may do it. And there may be reasons satisfactory to the State, why the law should be this way. But the office of tax collector is a different office, clothed with different duties, and may be regulated by a different policy; and the payment and satisfaction of an execution in favorofone individual against another, might well be regulated by rules of policy, that would have no application to the payment of money into the treasury upon a revenue account in favor of the State. In the one case the State through her laws and by her officers acts as a disinterested regulator between indifferent parties; in the other she is a party herself in interest. It is competent for the State, through her legislature, to say to the sheriffs, and to every body else, that if they pay off and satisfy an execution in favor of one man against another, the execution shall be dead and of no virtue afterwards. And it is also competent for her to say, that if the tax collector pays the public revenue into the treasury out of his own means, he shall still be allowed to use the name of the State to enforce collections from the people to reimburse himself. The State may adopt such means as it may think most advisable for the collection of its revenue. It may make contracts with her citizens. It may borrow money from them; buy their goods and lands, and sell them property, go in partnership with them, and do almost every thing that an individual can.
    The question of power aside, the next question is, has the State authorized the tax collectors to pay the revenue into the treasury out of their own money, and then use the name of the State, and exercise the right of distress, to collect taxes for their own benefit, to reimburse themselves? In other words, has the State substituted the defendant to its original rights of lien and distress?
    I maintain that it has in the passage of the various acts giving further time to former sheriffs to collect arrearages of taxes. I have examined the pamphlet acts of 1831-2, 1837-8,1839-40, 1841-2, and find the legislature of those years did pass such acts, and my belief is, that similar acts have been passed by every legislature from 1826, and perhaps before, down to this time; but it has not been convenient to examine the pamphlets acts for all the time. But whether these acts were regularly passed by every legislature, is not so very material. The act of 1841-2, ch. 98, pamphlet acts 101, is sufficiently broad to cover the whole ground. And the particular phraseology of those statutes in using the term “former sheriffs,” which I believe is used in all of them, shows that they have been passed for the benefit of sheriffs, whose terms of office have expired, and of course to those who had paid up the taxes to the State,. in part at least, out of their own money; for otherwise there would be no arrearages to collect. But if there was any room or doubt about that, the act of 1841-2 would set the question at rest. The language of that act is, “That the further time of two years be allowed to former sheriffs to collect all arrearages of taxes due them and uncollected. Provided, no former sheriff shall be authorized to enforce the payment of any taxes due on the provisions of this act, without first making oath before some acting justice of the peace for the county, that ike amount claimed is due and unpaid, and that said former sheriff has paid and accounted for the same to the State treasurer and county trustee in their annual settlements. ”
    It would be more than mockery to pretend to give them further time to collect arrearages of taxes, without at the same time giving them power to do it. The record show's that defendant has been sheriff of Maury county all the time, from 1826 to 1842, and until within less than two years of the time of making the distress complained of, and that he has made the affidavit required by the act, and in every particular brought himself within its letter.
    But it is insisted by complainants, that the distress was illegal, because defendant was out of office at the time it was made. I have just quoted the act of 1841-2, which proves the contrary. But suppose it was illegal on that account? A plea of the statutes of limitation is not the proper mode by which to take advantage of it. The bill should have merely stated that fact, and prayed for an injunction, and there stopped. But complainants have chosen to set forth the whole course of dealing between their intestate and themselves and defendant, and have prayed for an account and settlement. They having brought the case into court praying for those things which are the proper subject matter of equity jurisdiction, and the pleadings and proof showing an indebtedness from complainants to defendant, this court will make such decree as is right between the parties. McNairy vs. Eastland, 10 Yerg. 314-15.
    The acknowledgment of Allen Brown, and his promise to pay, ought to remove the bar of the statutes as to all taxes that have accrued since the death of his intestate.
    
      Martin and M. S. Frierson, for defendant.
   Turley, J.

delivered the opinion of the court.

The defendant, Nimrod Porter, was sheriff of the county of Maury, for a great many years, and, as such, had dealings in various ways with one Thomas Brown, who died intestate in the year 1834, and upon whose estate the complainants administered. Porter borrowed money from Brown, and was indebted to hi m for medical bills; and for several years before his death had paid his taxes. There was no settlement between him and Brown, during Brown’s life time. After Brown’s death, Porter, as sheriff, continued to pay the taxes on his estate up to May 1842. In June 1842, Allen Brown, one of the complainants, and Porter came to a settlement of the various transactions existing between him and the complainants as administrators of the estate of Thomas Brown, deceased; and it was agreed between them, that if Porter would not avail himself of the statute of limitations as a bar to the medical accounts of Thomas Brown against him, the administrators would pay him the full amount of taxes advanced by him for Brown in his life time, and for his estate after his death; and a settlement was then made upon this basis, when it was found, that the estate was indebted to Porter between eight hundred and one thousand dollars, which Allen Brown then promised to pay, but neglected to do so, in consequence of which Porter, in 1843, .was proceeding by distringas to collect the amount of taxes previously paid by him for Brown in his life time, and for his estate after his death; to stay which proceeding, this bill of injunction was filed, alledging, among other things, that Porter at the time of the attempt to enforce his claims by distringas, was no longer sheriff of Maury county, and praying that the complainants might be allowed all benefit of such statutes of limitation, or bar by lapse of time, as in the premises they, as administrators, ought to claim and be allowed, as though the same were formally set forth and relied upon.

Two questions are, upon this state of facts, presented for our consideration.

1st. Had the defendant, Porter, power, under the circumstances, to resort to the remedy by distringas, for the purpose of collecting the sums advanced by him in payment of taxes for the estate of Brown?

2d. To what extent is his claim, for such advances, affected by the statutes of limitation.

1st. As to Porter’s right to the remedy by distringas, it is not and cannot be controverted, that such right, if it exist, must be by statutory provision, in as much as by the principles of the common law, the payment of the taxes by Porter, extinguished the demand of the State against Brown’s estate, and left it responsible to Porter for money laid out and expended for it by him, for which he would have his common law remedy by action on the case and no more. But it is contended, that the act of 1842, ch. 98, by a fair construction gives in this case, and others of like character, the remedy by distringas. That statute provides, “That the further time of two years be allowed to former sheriffs to collect all arrearages of taxes due them and uncollected: Provided, no former sheriff shall be authorized to enforce, the payment of any taxes under the provisions of this act, without first making oath before some acting justice of the peace for the county, that the amount claimed is due and unpaid, and that said former sheriff has paid and accounted for the same to the State treasurer and county trustee in their annual settlement.”

Now to give any operative effect to this statute, it must be construed to mean something more than that the sheriffs should have two years to commence their action on the case for the unpaid taxes due them, for this right they had amply secured to them by the common law, and this too without being under the necessity of making oath before a justice of the peace, that the amount claimed by them was due and unpaid, and .that they had paid and accounted for the same to the State treasurer and county trustee.

If it meant more than this, then what did it mean? Surely nothing less than that the sheriffs should use and exercise all the means given by law for the purpose of enforcing the payment of taxes due to the State, or in other words, that although they had ceased to be sheriffs of the counties for which they had previously been acting, they might, nevertheless, for the space of two years use the proceeding by distringas to enforce the payment of taxes due and unpaid, and which they had accounted for and paid to the State treasurer and county trustee. We cannot, therefore, doubt that the defendant, Porter, had the right to use the remedy by distringas for the collection of the amount of taxes paid by him for the estate of Thomas Brown, and -which were legally due.

2d. How far is Porter’s claim for taxes, advanced by him for the estate, affected by the statutes of limitation?

In the discussion of this proposition, it may be premised that the act of 1842, extending the time for the collection of unpaid taxes, does not purport to interfere with the operation of any of the statutes of limitation of .the State, and, therefore, does not warrant the collection by the sheriff of any unpaid taxes, which would be barred in the courts by any statute of limitation in force. The complainants rely very inartificially upon the statutes of limitation in this case.

The prayer of the bill, as we have seen, asks of the court, ‘‘that they be allowed all benefit of such statutes of limitation, or bar by lapse of time, as in the premises they, as administrators, ought to claim.”

This can be construed to mean nothing more than that they be allowed the benefit of such statutes of limitation, as they in their representative capacity are bound to plead, or by neglecting so to do, become liable for a devastavit, and that they waive all such statutes as they in their representative capacity might refuse to plead, without making themselves so liable.

It has been held by this court, that administrators or executors are bound to plead the statute of 1789, which provides, in sec. 4, that “the creditors of any person or persons deceased, if he or they reside within this State, shall within two years, and if they reside without the limits of this State, within threeyears from the qualification of the executors or administrators, exhibit and make demand of their respective accounts, debts and claims of every kind whatever, to such executors or administrators; and if any creditor or creditors shall hereafter fail to demand and bring suit for the recovery of his, or her, ortheir debts as above specified, within the aforesaid time limited, he, she or they shall forever be barred from the recovery of his, her ortheir debt, in any court of law or equity, or before any justice within this State; and that any neglect on their part so to plead the statute in defence, will charge them for a devastavit to the extent of the demands thus neglected to be so defended.” The complainants,'then, must be allowed the benefit'of this statute under the prayer in their bill, but none other are they, at their peril, bound to plead.

To what extent then will this statute effect the demands of' the defendant, Porter? It bars all amounts advanced by Porter for Thomas Brown in his life time, but no more, because the statute in express words limits its operation to demands against. any person or persons deceased, and does,not, therefore,fapply. to any demands arising by contract, either express or implied, ' with the executor or administrator of an estate, which are, therefore, affected like claims between all other persons, by the common statute of limitations; and which in the case now under consideration, for sums advanced for the estate by Porter after Brown’s death, is the statute of James, of six years, because debt would lie for such demands. But this statute is not pleaded or insisted on, and, therefore, there is no statute of limitations in the way to prevent' Porter’s recovery for all such sums as he advanced for the estate of Brown after his death.

Then how does the case stand under this view of it? Porter is prevented by the act of 1789, from recovering any demand due to him from Brown in his life time, but is entitled to recover all demands for money advanced in the payment of taxes for the estate of Brown after his death.

. Butin as much as Porter stands charged with the amount of bills for medical services rendered him by Brownin his life time, which were also barred by the statute of limitations, and which he now relies upon in his answer, but of which he agreed not to avail himself, provided the administrators would not take advantage of the statute, barring his claim for advances made for Brown in his lifetime, in which he has been disappointed, as the protection of the statute is now extended to them, we think it nothing but just, that the defendant should not be held' to his agreement, the consideration of which has failed; and, therefore, hold that he shall not be charged with the amount of medical bills, thus barred by the statute of limitations, but that the same shall be stricken from the account.

The decree will be modified, and the account recast upon the principles of this opinion.  