Johnson v. Risk

Complainant averred that Thomas L. Risk made the payments to the distributees without taking any refunding bond as required by the statute, and in his own wrong and without the authority of law, and that he and his sureties on his administration bond are now liable to complainant on account of the matters set out in the bill for the full amount of said payments and interest thereon until paid. Complainant further showed that on December 1, 1883, Thomas L. Risk was appointed by the probate court administrator de bonis non of the estate of E. F. Risk, deceased, and at that time gave a bond as such administrator, with defendants L. Tiff Risk and H. C. Warriner as sureties, and thereupon qualified and had since continued to be such administrator, but had filed no inventory of the assets of said estate since his appointment, and had taken no steps in the administration, so far as the complainant knew or believed. The bill then proceeded: 'Upon the state of facts aforesaid the plaintiff submits that the discharge in bankruptcy of the said E. F. Risk did not discharge him or his assets from liability to the plaintiff on the contract of indemnity, a copy of which is marked 'Exhibit A,' and a part of this bill, but such liability remains upon his estate, and the said Thomas L. Risk, as administrator thereof, personally, as if no discharge in bankruptcy had been granted; and the plaintiff further submits that the said distributees to whom the said Thomas L. Risk distributed the sums aforesaid in the manner aforesaid, to-wit, [naming them,] are liable, and are bound by law to refund and pay the said sums so distributed to them, respectively, in order that the same may be applied towards the payment of the demand herein set up by the plaintiff against the estate of the said E. F. Risk, deceased, and the said Thomas L. Risk, as administrator.' The bill prayed process, and that on the final hearing complainant might have a decree against the defendants and each of them, or such of them as were liable, jointly or severally, for the sums they respectively owed him, and for general relief.

Exhibit A attached to the bill bore date February, 1, 1875, and recited that in consideration of $10,000 the receipt of which was thereby acknowledged, and the further consideration thereinafter mentioned, Johnson had that day bargained, sold, and conveyed to E. F. Risk his undivided half or moiety of a certain parcelof land as described, (upon which the firm's foundry building was located,) together with all the tools and machinery or every sort and kind whatever, then on said lot or in said foundry, and then continued: 'This instrument further witnesseth that the firms of Johnson, Risk & Co. and of Risk & Johnson are this day dissolved, the said Johnson selling all his interest in the machinery, tools, and stock of every kind on hand belonging to both firms, to the said E. F. Risk, and part of the consideration for said sale and the above conveyance is that the said Risk assumes payment of each and all the debts and liabilities of every kind whatsoever of each and both of said firms, and binds and obligates himself to pay the same and protect and keep said Johnson harmless from the payment of any part thereof;' and it is then provided that the bills receivable, etc., shall be collected by E. F. Risk, and divided as fast as practicable between himself and Johnson, less necessary costs and charges, one-half to each; that $150 shall be paid to Johnson in cash at the end of each and every month, and whenever the momthly collections amount to $1,000, or more, in excess of the monthly payment of $150 to Johnson, and a like amount retained by Risk, then Risk was to execute his note to Johnson for one-half of said collections, payable eight months after date, with interest. It was further provided that Johnson should retain a lien upon the real estate and machinery conveyed, Risk acknowledging the same, 'together with a lien, equal to and like a mortgage upon his other undivided half of said foundry property, both land and machinery, to secure to Johnson the faithful performance of the undertaking herein made by the said Risk, which are that he will pay over to Johnson at the end of each month $150; one-half of all other collections eight months after they are made, with interest thereon at 8 per cent per annum; and pay all the debts outstanding owing by the said two firms or either of them.' And, 'in the event that Johnson should have to pay any of said debts or be sued thereon, or should not be paid his half of the collections made as stipulated above, then he may proceed forthwith to enforce the liens herein retained and granted by proper proceeding therefor.' To this bill Thomas L. Risk in his own right, and as administrator de bonis non of E. F. Risk, deceased, John D. Milburn and H. C. Warriner demurred, assigning as grounds that E. F. Risk was released from the debt sued for by his discharge in bankruptcy, granted on the 20th of December, 1878, on his petition in bankruptcy filed on the 11th of July 1878; and also that the supposed cause of action was barred by the statute of limitations of two years and six months from the grant of letters of administration, June 27, 1882; and also that the cause of action did not accrue within six years next before the bringing of the suit, and was therefore barred; and a special ground as to Warriner. L. Tiff Risk filed his separate demurrer assigning the same causes. The chancellor sustained the demurrers and dismissed the bill, and complainant prayed an appeal to the supreme court of the state, which, on the 28th of April, 1887, affirmed the decree. Complainant then sued out this writ of error.

The following are sections of the Code of Tennessee of 1884, the numbers being given of that and the preceding edition: '3087, (2249.) That all creditors may be duly apprised of the death of any person indebted to them, the executor or administrator of the deceased shall, within two months after qualification, advertise at the court-house of the county where the deceased usually dwelt at the time of his death, and other public places in the county, for all persons to bring to him their accounts and demands.' '3112, (2274.) Executors and administrators shall have six months from the date of their qualification to ascertain the situation of the deceased's estate, and to arrange and settle it, without being liable to suit and cost; and all suits commenced within that period may be abated and dismissed at the plaintiff's cost, except suits brought by sureties of the deceased, which may be brought without delay.' '3117, (2279.) The creditors of deceased persons, if they reside within this state, shall, within two years, and if without, shall within three years, from the qualification of the executor or administrator, exhibit to them their accounts, debts, and claims, and make demand, and bring suit for the recovery thereof, or be forever barred in law and equity.' '3222, (2377.) Creditors whose debts are not due shall be under the same obligation to present their claims as those whose debts are due, and, upon failure to do so, shall be barred in like manner; but a creditor shall not be bound to present his claim before due, except where the estate is represented to be insolvent as herein provided.' '3454, (2760.) The time between the death of a person and the grant of letters testamentary, or of administration on his estate, not exceeding six months, and the six months within which a personal representative is exempt from suit, is not to be taken as a part of the time limited for commencing actions which lie against the personal representative.' '3466, (2769.) All civil actions, other than those for causes embraced in the foregoing article, shall be commenced after the cause of action has accrued, within the periods prescribed in this chapter, unless otherwise expressly provided.' '3472, (2775.) Actions for the use and occupation of land, and for rent; actions against the sureties of guardians, executors and administrators, sheriffs, clerks, and other public officers, for nonfeasance, misfeasance, and malfeasance in office; actions on contracts not otherwise expressly provided for,-within six years after the cause of action accrued.' '3481, (2784.) Actions against the personal representatives of a deceased person shall be commenced by a resident of the state within two years, and by a non-resident within three years, after the qualification of the personal representative, if the cause of action accrued in the life-time of the deceased, or, otherwise, from the time the cause of action accrued.' W. M. Randolph, for plaintiff in error.

B. M. Estes, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.