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
Page 76 U. S. 395
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,
Page 76 U. S. 396
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.
Page 76 U. S. 399
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.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
The inquiry here is what is the legal effect of the facts
presented by the pleas of the defendant?
The first plea puts in issue the representative character of the
plaintiff in the State of Wisconsin. It denies that, as to the
causes of action stated in the declaration, he is or ever has been
administrator of the effects of the deceased, and thus raises the
question whether an administrator appointed
Page 76 U. S. 400
in one state can, by virtue of such appointment, maintain an
action in another state to enforce an obligation due his intestate.
And upon this question the law is well settled. All the cases on
the subject are in one way. In the absence of any statute giving
effect to the foreign appointment, all the authorities deny any
efficacy to the appointment outside of the territorial jurisdiction
of the state within which it was granted. All hold that in the
absence of such a statute, no suit can be maintained by an
administrator in his official capacity except within the limits of
the state from which he derives his authority. If he desires to
prosecute a suit in another state he must first obtain a grant of
administration therein in accordance with its laws.
So far has this doctrine been extended that in
Fenwich v.
Sears' Administrators, [
Footnote 2] where the plaintiff had obtained letters of
administration in Maryland, before the separation of the District
of Columbia from the original states, it was held by this Court
that he could not, after the separation, maintain an action in that
part of the district ceded by Maryland by virtue of these letters,
but that he must take out new letters within the district.
The same doctrine is as applicable to the case of executors as
to that of administrators; the right to sue in both instances
depending upon the letters. [
Footnote 3]
Whether the objection to the character of the plaintiff as
administrator or executor should be taken by a plea in abatement or
a special plea in bar, would appear to have been, at one time, a
matter upon which there was some diversity of opinion. In some of
the cases, the language used would indicate that a plea in
abatement was the only appropriate form in which the objection
could be presented, whilst in other cases the objection taken by a
special plea in bar has been sustained. It was sustained by this
Court, when taken by a special plea in bar, in
Fenwick v.
Sears' Administrators, and in
Dixon's Executors v.
Ramsey's Executors, already cited. In the latter case, a
foreign executor brought an action in the
Page 76 U. S. 401
District of Columbia. The defendant pleaded that he had not
obtained letters in the District or in the United States, and on
demurrer the plea was sustained.
There is no principle in pleading which should prevent the
objection from being taken in this way. It is only in virtue of his
representative character that the plaintiff is entitled to the
matters in controversy, and a plea which denies to him that
character is, in its nature, a plea in bar of the action.
In
Langdon v. Potter, [
Footnote 4] the Supreme Court of Massachusetts held
directly that the objection taken in that case that no letters of
administration had been granted to the plaintiff except under the
authority of another state was pleadable in bar, and in referring
to the diversity in the cases and opinions, as to the form of the
plea by which the objection should be presented, observed that they
might perhaps be "reconciled by considering the plea that the
plaintiff is not administrator as one of those which may be pleaded
in bar or in abatement." "There are many such cases," said the
court,
"where the matter of the plea goes to preclude the plaintiff
forever from maintaining the action, and it may therefore be
pleaded in bar; yet, as in point of form it is in disability of the
plaintiff, it may also be pleaded to the person."
These observations are just, and explain much of the apparent
conflict in the decisions of different courts or of the same court
at different times.
The language used by this Court in
Childress v. Emory
[
Footnote 5] and
Kane v.
Paul, [
Footnote 6] cited
by counsel, was not intended to deny that the objection to the
authority of the plaintiff as administrator or executor could be
taken by a plea in bar, but was only intended to indicate that the
objection must be specially pleaded, and could not be urged on
demurrer to the declaration for alleged insufficient exhibition of
letters testamentary, when profert of the letters was made, or
under a plea to the merits.
In the first case the court observed that if the defendant
Page 76 U. S. 402
desired to object to the letters as insufficient, he should have
craved oyer of them, and had them brought before the court, that
unless oyer was craved and granted, the letters could not be
judicially examined, and then added that if the plaintiffs were not
executors, that objection should have been taken by way of
abatement, and did not arise upon a demurrer in bar. The point
decided was that the objection could not be taken, when profert of
letters was made, without oyer of them, and did not arise in such
case upon demurrer. There was no question as to the form of the
plea to be used, if the objection were presented in that way, and
it is clear that no determination as to the form was intended.
In the second case, the plea was
nonassumpsit, which
admitted plaintiff's right to sue. It was objected that the letters
testamentary appeared on their face to have been granted in
violation of the law of Maryland, but the court observed that the
plea was the general issue, and that a judicial examination into
their validity could only be gone into upon a plea in abatement,
meaning evidently that such examination could not be had unless the
objection were taken by special plea. There was no intention on the
part of the court to determine as to the form of the special plea
in such cases.
The objection to the character of the plaintiff as administrator
in this case is not waived by the third plea, which goes to the
merits, as contended by counsel. 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. But here there is no inconsistency in the pleas; the
one denying any right in the plaintiff, in his capacity as
administrator, to the subject of controversy, and the other the
release of the defendant from liability on the bond in suit by
failure of its consideration. The averments of both may be
true.
The proposition of law which the counsel invokes, that a plea to
the merits admits the representative character of the
Page 76 U. S. 403
plaintiff, and his right to sue in that capacity, is only
applicable where no other plea than one of that kind is interposed;
it does not apply where a special plea traverses that character. A
plea denying that an intestate entered into the obligation upon
which the action is brought, or averring that he was released
therefrom, standing alone, is undoubtedly an admission of the
representative character of the plaintiff to the extent stated in
the declaration, and if that statement is consistent with the grant
of letters within the state, is also an admission of his right to
sue in that capacity. The execution or the release of the
obligation is in such case the only matter in issue, and of course
is the only matter upon which evidence need be called or argument
had. But, in the case at bar, had there been no other plea than the
third plea, which goes to the merits, the character of the
plaintiff, as administrator in Wisconsin, would not have been
admitted, for the reason that the declaration states that the grant
of administration to him was by letters issued in the State of New
York, and the plea to the merits only admits the title as stated in
the declaration.
This effect of a plea to the merits was decided as long ago as
the time of Lord Holt, in the case of
Adams v. Tertenants of
Savage. [
Footnote 7] In
that case, the plaintiff brought a
scire facias against
the defendants, reciting a judgment recovered by his intestate
against Savage, and that administration was committed to him by the
Archdeacon of Dorset, whose jurisdiction did not extend to the
place where the judgment was rendered. The tertenants traversed the
seizin of Savage, and the finding being against them, motion in
arrest of judgment was made, on the ground that the administration
committed to the plaintiff was void. It was urged for the judgment,
that though the plaintiff had shown a bad title, the defendants not
traversing it, or taking any advantage of the invalidity of the
administration, but pleading to the merits, admitted that the
plaintiff was entitled to sue, and should not be permitted, when
the right was tried against them, to
Page 76 U. S. 404
controvert what they had declined to insist upon; but Chief
Justice Holt said:
"If the plaintiff had not set forth what kind of administration
he claimed by, but only generally alleged himself administrator of
the goods and chattels of the intestate, and the defendant had not
put you upon showing it by craving oyer of the letters of
administration, as he might have done, but pleaded over; that had
been an admission of the plaintiff's having a right of suing as
administrator as he had alleged."
And after stating that the plaintiff made title to himself by an
administration which was invalid, the Chief Justice continued:
"And when you yourself affirm this to be your title, how can we
intend you have another; for of your own showing this is your
title, which is manifestly bad? And there is a vast difference
where a title does not appear fully for the plaintiff, and the
party will not controvert with him about that, for then it may be
well presumed if the party were not well satisfied of plaintiff's
title he would have insisted on it in due time, and where the
plaintiff himself shows he has no title, for then the court has no
room for intendment."
The authority of this case has not, so far as we are aware, ever
been doubted, and were there no other ground against the position
of the plaintiff, it would be decisive.
The substitution in this Court of the plaintiff as
administrator, in place of the intestate, in
Noonan v.
Lee, does not affect the present case, or give the plaintiff
any greater right of action than if no such substitution had ever
been made. It only authorized the further prosecution of that suit
in his name, and gave no right, and could give no right, to
prosecute any other suit in his name.
Nor is the position of the plaintiff aided by the statute of
Wisconsin, which enables foreign executors and administrators to
sue in certain cases in the courts of that state. That statute only
applies where no executor or administrator of the estate of the
decedent has been appointed in the state, and then only in the
counties where the foreign executor or administrator has filed in
the Probate Court an authenticated copy of his appointment.
Page 76 U. S. 405
The second plea, like the first, puts in issue the
representative character of the plaintiff in Wisconsin, not by
direct denial, as in the first plea, but by averring that there
were effects of the decedent in that state at the time of his
death, among which was the bond in suit; that an administrator of
those effects had been duly appointed and qualified, and had
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, under the laws of Wisconsin, were 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, are
void and of no effect.
This plea is a good plea in bar to the action. The bond in suit
was
bona notabilia in Wisconsin, and a plea that the
subject of action constituting such
bona notabilia was, on
the death of the decedent, in another jurisdiction than the one
which appointed the administrator suing as plaintiff, has always
been 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. [
Footnote 8]
The third plea sets up a defense to the action on the merits --
namely that the title to the premises, for the consideration of
which the bond in suit was given, has failed, and that as a
consequence, under the agreement of the intestate, the right to
enforce the bond has ceased.
This plea alleges that the bond in suit was given only in
consideration of the conveyance of a warranty deed by the
intestate, and an agreement that in case his title failed he would
not enforce the bond, and that by judicial proceedings, of which
the intestate had notice and took charge, it was determined that
the intestate was not seized at the time he executed the deed in
fee of the premises, but that Orton, the party then in the
possession, was thus seized of them.
Page 76 U. S. 406
The effect of this plea depends upon the construction which is
given to the agreement of the intestate not to enforce the bond in
case his title failed. The plaintiff contends that this agreement
ceased to have any operation after the maturity of the bond or the
forfeiture of the penalty, and that if subsequently the title
failed, that fact could not be pleaded with the agreement in bar to
an action on the bond, either by way of release or estoppel.
The argument presented in support of this construction is
founded mainly upon the improbability that the parties could have
contemplated a postponement of payment beyond the period stipulated
in the bond. They could not, says the counsel, have intended to set
aside the obligation to pay at those times; and it would have been
a violation of the spirit of the agreement for the vendee to have
refused the payments as they became due, if the title had not then
failed.
Undoubtedly the parties contemplated that the payments would be
made as they matured, but they also contemplated that payments
should cease whenever the title of the grantor failed. They may
have supposed that the validity of the title would be determined to
their satisfaction before the maturity of any of the installments
stipulated, but they have inserted no provision in the agreement
which limits its operation to that or to any other period. It is a
perpetual covenant not to enforce the bond upon the happening of a
certain event. It matters not that the obligee or his
representative might have compelled its payment before the
happening of that event. What would have been the rights of the
obligor in that case; whether he would have had any remedy to
recover back the amount paid, or would have been compelled to look
to the covenant of warranty in his deed, are questions not now
before us for determination. It is sufficient for our present
consideration that the bond has not as yet been enforced, and the
title to the property, which the intestate sold and undertook to
convey to the defendant, has failed. It would be against manifest
justice if, under these circumstances, the representative of the
vendor, notwithstanding the vendor had no title to convey, could
recover
Page 76 U. S. 407
of the defendant as though the vendor had transferred to him a
good and perfect one.
If there were any doubt as to the construction which should be
given to the agreement of the intestate, that construction should
be adopted which would be more to the advantage of the defendant,
upon the general ground that a party who takes an agreement
prepared by another and upon its faith incurs obligations or parts
with his property should have a construction given to the
instrument favorable to him, and on the further ground that when 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 standeth with the right. [
Footnote 9]
This agreement not to enforce the bond, which is conditional in
its terms, depending for its operation upon the happening of a
contingent event, has, by the happening of that event, become
absolute, and may be pleaded as a release to the action. It
constitutes in fact 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. [
Footnote 10]
The decision in the foreclosure suit only determined that at the
time the hearing was had in that case in the district court, in
January, 1860, the title had not failed. The language of the court
in rendering the decision shows this. It says:
"As the facts are disclosed in the record we find no defect in
the title of Lee. We find that Noonan's title has not failed, and
no encumbrance upon the property is shown. There has been,
therefore, no breach of the agreement endorsed on the bond, nor has
there been any breach of the covenant of general warranty in Lee's
deed to Noonan."
The case is entirely changed now; and facts not existing, or at
least, not established then, but since determined by judicial
Page 76 U. S. 408
proceedings, present a case upon which this Court has heretofore
never passed.
We are of opinion that the pleas of the defendant constitute a
bar to the action, and that the circuit court erred in sustaining
the demurrer to them. It follows that its judgment must be
Reversed and the cause remanded for further
proceedings.
[
Footnote 1]
Noonan v.
Lee, 2 Black 500.
[
Footnote 2]
5 U. S. 1 Cranch
259.
[
Footnote 3]
Dixon's Executors v. Ramsay's
Executors, 3 Cranch 319.
[
Footnote 4]
11 Mass. 313.
[
Footnote 5]
21 U. S. 8 Wheat.
642.
[
Footnote 6]
39 U. S. 14 Pet.
33.
[
Footnote 7]
6 Modern 134.
[
Footnote 8]
See 1 Saunders 274, note 3;
Stockes v. Bate, 5
Barnewall & Cresswell 491.
[
Footnote 9]
Mayer v. Isaac, 6 Meeson & Welsby 612.
[
Footnote 10]
Burgh v. Preston, 8 Term 483.
MR. JUSTICE CLIFFORD, with whom concurred SWAYNE and DAVIS, JJ.,
dissenting.
I dissent from the opinion and judgment of the court in this
case upon two grounds, which I will proceed to state without
entering at all into the argument to support the respective
propositions:
1. Because I think that the alleged disability to sue should
have been pleaded in abatement and not in bar. Undoubtedly a
different rule of pleading prevailed at common law, but there are
three reported decisions of this Court in which it is held that
such a plea in a case like the present must be in abatement, and in
view of our complicated system of jurisprudence, I am not inclined
to overrule those cases. They have been regarded as authorities for
many years, and I am of the opinion that the rule which they
establish is the better one as a rule of pleading in the federal
courts than the rule which prevailed at common law. [
Footnote 2/1]
2. I am also of the opinion that the decree in the former suit
is conclusive as to the rights of the parties, and that it
constitutes a complete answer to the defense in the present suit.
[
Footnote 2/2]
[
Footnote 2/1]
Childress v.
Emory, 8 Wheat. 642;
Kane v.
Paul, 14 Pet. 33;
Ventress
v. Smith, 10 Pet. 161.
[
Footnote 2/2]
Noonan v. Lee,
2 Black 499.
