Noonan v. Bradley
76 U.S. 394 (1869)

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U.S. Supreme Court

Noonan v. Bradley, 76 U.S. 9 Wall. 394 394 (1869)

Noonan v. Bradley

76 U.S. (9 Wall.) 394

Syllabus

1. An administrator appointed in one state cannot, by virtue of such appointment, maintain an action in another state in the absence of a statute of the latter state giving effect to that appointment, to enforce an obligation due his intestate. If he desires to prosecute a suit in another state, he must first obtain a grant of administration therein in accordance with its laws.

2. In an action by a plaintiff as an administrator, the objection that, as to the causes of action stated in the declaration, he is not and never has been administrator of the effects of the deceased, may be taken by a special plea in bar.

3. It would appear that the objection may also be taken by a plea in abatement.

4. One plea in bar is not waived by the existence of another plea in bar, though the two may be inconsistent in their averments with each other. The remedy of the plaintiff in such case is not by demurrer, but by motion to strike out one of the pleas or to compel the defendant to elect by which he will abide.

5. In an action by a plaintiff as administrator, a plea to the merits admits the representative character of the plaintiff to the extent stated in the declaration, and if that statement is consistent with the grant of letters

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within the state, it also admits his right to sue in that capacity, but such a plea admits nothing more than the title stated in the declaration.

6. The substitution in this Court of an administrator as a party in place of his intestate on the record, in a case pending on appeal, only authorizes the prosecution of that case in his name; it confers no right to prosecute any other suit in his name.

7. In an action in one state by an administrator appointed in another state on a bond given to the intestate, a plea that the bond was bona notabilia on the death of the decedent, in the state other than the one which appointed the administrator suing as plaintiff, and that an administrator of the effects of the decedent in that state has been appointed and qualified, is a good answer to the action. It is an averment of facts which in law excludes all right to, and control over, the property in that state by the foreign administrator.

8. Where a bond for the purchase money of certain land was delivered upon an agreement endorsed upon the bond by the obligee that he would not enforce the bond in case his title to the land should fail, held that the agreement was not limited in its operation to the time when the bond matured or the penalty became forfeited, but was a perpetual covenant not to enforce the bond in case the designated event at any time happened.

9. Where doubt exists as to the construction of an instrument prepared by one party, upon the faith of which the other party has incurred obligations or parted with his property, that construction should be adopted which will be favorable to the latter party; and where an instrument is susceptible of two constructions -- the one working injustice and the other consistent with the right of the case -- that one should be favored which upholds the right.

10. The agreement above-mentioned endorsed on the bond constitutes a part of the condition of the bond, qualifying its provisions for the payment of the installments of the principal and interest, and declaring in effect that the payments shall not be required and the obligation of the bond shall cease in case the event designated happens.

In October, 1855, Noonan, the defendant in the court below, purchased of one Lee, and received from him a warranty deed of certain real property situated in the State of Wisconsin, and for the purchase money gave his bond in the penal sum of eight thousand dollars, conditioned to pay four thousand dollars in four equal annual installments, with interest, secured by a mortgage on the property. At that time the premises were in the possession of one Orton,

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holding them adversely to Lee, and in consequence of this fact Noonan required from Lee, as a condition to the delivery of the bond, an agreement against its enforcement in case his title to the land should fail (except as against the United States for the portion of the river (Milwaukee) beyond a certain designated line), and to deduct from the sum stipulated the amount of any encumbrances which might be found on the property. Such an agreement was accordingly given, and was endorsed on the bond. It was as follows:

"I agree, if my title fails to the property for the consideration of which this bond is given, except as against the United States, for the portion of the river beyond the meandered line, that I will not enforce this bond; and if any encumbrances shall be found, that the amount of the same shall be deducted from the moneys to fall due on this bond."

"J. B. LEE"

A clause in the mortgage provided that upon default of Noonan to pay any of the installments of the principal, or the interest, or the taxes on the property as they became due, the entire principal of the bond with interest should, at the option of Lee, be immediately payable.

In March, 1859, default having been made in the payment of the several installments, Lee elected to claim the entire amount as due, and brought suit against Noonan and others in the District Court of the United States for the District of Wisconsin, then exercising circuit court powers, to foreclose the mortgage, praying in his bill for a sale of the mortgaged premises, the payment of the debt secured, and for general relief. Noonan answered the bill, setting up that Lee's title had failed before the commencement of the suit; but the court, by its decree, made in January, 1860, found that there was due on the bond a sum exceeding five thousand dollars, and directed a sale of the mortgaged premises, and the application of the proceeds to the payment of the amount found due, and that if the proceeds were insufficient the marshal should report the deficiency, and Noonan should

Page 76 U. S. 397

pay it with interest, and in default of such payment the complainant should have execution therefor.

From this decree Noonan appealed to this Court, and, pending the appeal, for the purpose of trying his title to the land purchased, brought ejectment in one of the circuit courts of the State of Wisconsin against Orton, the party in possession. He then gave notice to Lee of the action, and required him to undertake its management. Lee at once retained counsel, who, for him, assumed the conduct of the action.

Pending the appeal in this Court, and the action of ejectment in the state court, Lee died domiciled in New York, and Bradley, the plaintiff in this case, was duly appointed by the proper tribunal in that state administrator of his estate. On his application, Bradley was then substituted as representative of his intestate on the record in the case on appeal in this Court.

At the December Term 1862, this Court gave its decision in the case, adjudging that the district court erred in ordering the defendant Noonan to pay and deficiency which might remain of the principal and interest of the mortgage debt after applying the proceeds of the sale, and that complainant have execution therefor. To this extent the decree was reversed; in other particulars it was affirmed.

In the opinion delivered on rendering the decision the court observed, that upon the facts disclosed by the record it found no defect in the title of Lee, and that Noonan's title had not failed. In this language reference was of course had to the title as it appeared upon the evidence presented at the hearing in the district court in January, 1860. [Footnote 1]

Afterwards, in January, 1863, final judgment was rendered in the action of ejectment in the state court in favor of Ortion, the party in possession, and against Noonan, upon the ground that the latter was not seized in fee of the premises, and acquired no title by his purchase from Lee, and that Orton was thus seized.

Page 76 U. S. 398

When Lee died there were effects of value belonging to him in Wisconsin, and in February, 1865, one T. L. Ogden was duly appointed administrator of those effects by a tribunal having jurisdiction of the matter in that state; and he qualified and entered upon the discharge of his duties as administrator, and when this action was commenced had in his possession the bond given by Noonan to Lee on the purchase of the premises.

In September, 1866, Bradley, as administrator of the estate of Lee, under the appointment in the State of New York, brought the present action upon this bond of Noonan. The declaration set forth his title as administrator under this appointment, and contained four counts.

1 The first count was on the penalty of the bond simply.

2 The second was on the bond, setting out the condition written in the bond, and averring breach of the condition.

3. The third was on the bond, setting out the condition, averring a breach of the condition; and that Lee commenced suit to foreclose the mortgage given to secure the bond; the decree of the district court, the appeal by Noonan; and that the Supreme Court, pending the appeal, substituted Bradley as administrator, affirmed a part of the decree; that Bradley filed the mandate in the court below; that a sale was had and confirmed, and $53.56 was applied "to the sums so due, by the terms of the said condition of said bond, and by the terms of said decree as aforesaid." "Yet the said defendant hath not paid said several sums mentioned in said bond," &c.

4. The fourth count was on the bond, giving a copy of the whole bond, and the endorsement upon it, and setting out the proceedings in the foreclosure suit more fully, and concluding: "Yet the said defendant hath not paid said several sums mentioned in said bond, and the condition thereof, nor either of them, nor any part thereof," &c.

Every count of the declaration was upon the bond itself, not upon the decree in the foreclosure suit, and the breach alleged as furnishing the cause of action was the nonpayment of the money called for by the bond.

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To the declaration the defendant interposed three pleas:

1st. That as to the supposed causes of action mentioned therein, the plaintiff was not and never had been administrator of the effects of the deceased.

2d. That there were effects of value of the decedent at the time of his death in the State of Wisconsin, among which was the bond in suit; that T. L. Ogden was duly appointed by a tribunal in that state administrator of those effects, and had qualified and entered upon, and was engaged in the discharge of his duties as such officer at the time the action was commenced; and that by reason of this appointment and qualification, the effects of the decedent in Wisconsin were, under the laws of that state, vested in him, with all rights of action in relation thereto, and that as a consequence, the letters issued to the plaintiff in the State of New York, with reference to the causes of action stated in the declaration, were void and of no effect.

3d. That the title of Lee to the premises sold had failed, the plea setting up the agreement endorsed on the bond, and the proceedings and judgment in the ejectment suit, to bring the case within the agreement.

To the pleas the plaintiff demurred; the circuit court sustained the demurrer, and entered final judgment thereon in favor of the plaintiff for the penalty of the bond, and the defendant brought the case to this Court on writ of error.

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