MARTIN vs. NALL

MARTIN vs. NALL. 1. when judgment is rendered against two joint executors on a bond executed by their testator as surety for another, and one of the executors pays off this judgment, an action against the principal obligor, for the recovery of the money so paid, can only be maintained in the joint names of the two executors suing in their representative character. Error to the Circuit Court of Autauga. Tried before the Hon. A. B. Moore. Assumpsit by Stephen H. Martin, executor of Josee Dunn, deceased, against William E. Nall. The declaration contains three counts. The first count alleges that defendant was indebted to plaintiff for money paid, laid out and expended by plaintiff, to and for defendant, and at his special instance and request. The second alleges, that defendant was indebted to plaintiff, &c., for the work and labor, care and diligence of plaintiff, done and performed about defendant’s business, and at his special instance and request. The third count is for money loaned and advanced. Defendant pleaded, non assump-sit; payment; set-off; and accord and satisfaction. Erom the bill of exceptions it appears, that said Josee Dunn was the surety of defendant on a guardian’s bond; that said Dunn departed this life, and letters testamentary on his estate were granted at different times by the Court of Ordinary of Monroe county, Georgia, to said Stephen H. Martin and Obedience Dunn; that two judgments were recovered in said county of Monroe against said executors, on said guardian’s bond, which judgments were paid by the plaintiff. The attorney to whom the payments were made, stated, that he received the payments from plaintiff as executor, and the receipts given were in this form: “ Received of Stephen H. Martin, executor of Josee Dunn, $-, on tbe witbin judgment.” There was no proof as to tbe fund out of which tbe money was paid. Tbe court charged tbe jury: “That, if Martin paid tbe money as executor, it must be presumed that be paid it with tbe money or funds of tbe estate, unless tbe contrary is shown; and that if Martin paid said judgment with tbe funds of tbe estate, to recover that money, it is necessary for both executors to join in tbe action; and for money so paid, if Mrs. Dunn is a co-executrix, and not joined in tbe action, plaintiff cannot recover;” to which charge plaintiff excepted. Tbe plaintiff then moved tbe court to charge tbe jury: “ That, if judgments were obtained against Mrs. Dunn and 'said Martin, executors, and Martin paid tbe money, and took to him receipts describing himself as executor, that did not create such presumption that it was paid with tbe funds of tbe estate, as to render it necessary to join bis co-executrix, in an action for its recovery; which charge tbe court refused to give, and plaintiff excepted.” Tbe plaintiff then took a non-suit under the statute, and now assigns for error tbe charge given and tbe refusal to charge as f equested. F. Btjgbee, for plaintiff in error: Tbe suit is brought by Martin in bis individual name, and not as executor. Tbe word “executor,” where used in tbe pleadings, is mere surplusage. Biddle v. Wilkins, 1 Peters 686; 5 East 150. When tbe cause of action arose after tbe death of tbe testator, it is not necessary that tbe executor should sue in bis representative character. 2 Lomax on Executors, 371; 3 G-reenl. 250; 3 Doug. 31. Martin paid tbe whole judgment, either out of bis own funds, or tbe funds of tbe estate; if tbe former, be ought to be allowed to reimburse himself; and if tbe latter, be alone is responsible for those assets. A co-executor or administrator is chargeable only with tbe assets that come to his own bands, and not for those in tbe hands of bis companion; and each one is alone answerable for tbe truth or goodness of bis own plea. Douglass v. Satterlee, 11 Johns. 16; 3 Bibb 97; 4 Dess. 92. PUm administravit may be found for one executor, and against another. 1 Chitty. Where one of two joint administrators has discharged a debt due the estate, in consideration of a new promise from the debtor, the other administrator cannot discharge this new promise, for it is the private right of him to whom it was made. 1 Aik. 28 ; 1 McCord 492. The transactions out of which this action • arose, took place in Georgia, where the courts proceed according to the common law; and according to common law, the plaintiff has a good cause of action. 1 M. & M. 862; Sel. N. P., part 2, 700; 3 B. & A. 360; 2 Bing. 177; 1 C. & P. 302; 1 Term R. 599. N. HARRIS, contra: 1. If there are several executors, all must join in bringing-suits. 8 Porter 581; 1 Ala. 334; 2 Stew. & P. 449; 5 Wend. 313; 4 Bacon’s Abr. 41. 2. The judgment paid by plaintiff was recovered against him as executor, and paid by him as executor; and if recovered by him from the defendant, it would be assets in his hands. 2 Stew. & P. 449; 3 B. & A. 360; 5 Serg. & L. 316. 3. In law, all the executors make but one person; and all payments made by one, must be presumed to be paid out of the assets, and for all. 1 Ohitty’s PL 8. [MAJORITY — GrOLDTITWAITE, J.-] GrOLDTITWAITE, J.- The cases which hold that an executor may sue in his own right, where the cause of action arises after the death of the testator, proceed upon the principle, that he is invested with the legal title to the assets. Hence, if he loans the money of the estate, he can recover in his individual capacity; for the legal title being in him, the legal interest in the contract results to him. So, also, where money belonging to the estate of the testator is received after his death, the executor may declare on the implied assumpsit, for money had and received to his use: Foxwist v. Tremaine, 2 Saund. 208; Smith v. Barrow, 2 Term R. 477; and if one of the executors should make the loan, his co-executor would not be responsible, (Douglass v. Satterlee, 11 Johns. 16;) and he might therefore sue in his own name to recover it, without joining his co-executor,- (Brassington v. Ault, 2 Bing. 177;) and it could make no difference whether it was upon an express or implied contract. But where tbe act wbicb originates tbe action can only be done by tbe executor in bis representative capacity, we do not see bow be can sue in bis own right; bow be can maintain a suit as an individual, upon a payment wbicb, if made by him in that capacity, would confer no right of action. This is in effect tbe reasoning of Lord Ellenborough, in Ord v. Fenwick, 3 East 104, who, after putting tbe case of an executrix, suing as such, to recover money paid upon a judgment against her upon tbe obligation of her testator, on wbicb be was the surety of tbe defendant, says: “ She could not help paying money out of tbe assets, to tbe defendant’s use, wbicb be was bound to make good; and surely she may sue for it, and properly call herself executrix, in wbicb character alone she could have entitled herself to recover. She' could not pay tbe money out of her own funds, and raise an implied assumpsit against tbe defendant; nor could she properly declare in any other character.” If, therefore, in tbe present case, tbe plaintiff sued in bis own right, be could not recover upon tbe evidence stated in tbe bill of exceptions; and if tbe action bad been brought by him as executor, tbe objection that tbe co-executrix did not join, would have been fatal. Williams v. Sims, 8 Porter 579; Bodle v. Hulse, 5 Wend. 313; Webster v. Spencer, 3 B. & A. 60. Tbe charge of tbe court, although not strictly correct, as it assumes that tbe action might have been maintained by tbe executors suing jointly in their own right, yet, as tbe error could not have been prejudicial to tbe plaintiff, it furnishes no ground for reversal. The charge requested was properly refused, being in opposition to tbe views we have indicated. Tbe judgment is affirmed.