1851 October Term. Richmond. HUTCHERSON, &c. v. PIGG. (Absent Cabell, P.) November 10th. 1. The official bond of an executrix only binding the obligors for the due administration of the personal estate, the sureties are to no extent responsible for the rents and profits of the real estate. 2. All the sureties in the official bond of an executrix should be parties to a suit by legatees for distribution, or a sufficient reason should be shewn for failing to make them parties, before a decree is made against one of them. John Pigg died in 1816, having first duly made his will, which was admitted to record in the County court of Pittsylvania. He left a widow and six children, all of whom were infants. Mrs. Pigg qualified as executrix of the will, with James Adams, Samuel Calland, Nathan Hutcherson, James Hart and Clement Pigg, as her securities. After the qualification of Mrs. Pigg as executrix of John Pigg, she intermarried with Nathan Hutcherson, and he seems to have conducted the administration. The children seem to have lived with Hutcherson and his wife, on the land belonging to the estate, and no division of the property was made until 1829. In 1828 Hezekiah Pigg, one of the children of John Pigg deceased, instituted a suit in the County court of Pittsylvania, which was afterwards removed to the Superior court, against Hutcherson and wife and the children of John Pigg, asking for a settlement of Hutcherson's account and a division of the estate. The estate was divided, and the commissioner to whom the executorial accounts were referred made a report, in which he allowed Hutcherson a credit for the support of the children. Hezekiah Pigg, the plaintiff, excepted to the account of the administratrix, and also to the statement of his account; and the court sustained some of his exceptions, and, among others, the exception to the allowance for his support; and recommitted the report. In the second account, the commissioner stated the administration account, in which he charged the executor with the rent of the land, and ascertained the balance thereon, and distributed that balance between the widow and the children. Each child's part was 220 dollars 47 cents. He then stated an account between Hutcherson and Hezekiah Pigg, and ascertained the amount due to Pigg to be 211 dollars 88 cents; but he did not state an account with any of the other children; and the court confined its decree to the balance found due Hezekiah Pigg. This decree was in November 1842. In 1844 John W. Pigg instituted a suit in chancery in the Superior court of Pittsylvania against Hutcherson and Clement Pigg, in which he stated that Hutcherson had administered his father's estate; that Clement Pigg was the only surviving security (though he does not say the others were insolvent). He stated the proceedings in the former suit, and that the commissioner had reported due him the sum of 220 dollars 47 cents, which he was willing to consider as the true sum due him; that no decree had been made in his favour for that sum, and he asked for a decree for it against Hutcherson and Clement Pigg as his surety. Hutcherson answered the bill, saying that the plaintiff had been fully paid. The bill was taken for confessed as to Clement Pigg. Hutcherson took testimony to prove that for a part of the time John W. Pigg lived with him, viz., thirteen years, his support was worth 30 dollars a year. He 1851 October Terni. Hutcherson, &c. V. Pigg. also proved that he paid for John W. Pigg the sum of 75 dollars, and in the suit of Hezekiah Pigg against Hutcherson and als., the first report shewed items not excepted to of 26 dollars 43 cents, paid for John W. Pigg. The cause came on to be heard in October 1845, when the court made a joint decree against Hutcherson and Clement Pigg for the whole sum of 220 dollars 47 cents, with interest thereon from the 9th of May 1829. From this decree the defendants applied to this court for an appeal, which was allowed. Grattan, for the appellants, insisted: 1st. That the representatives of the other sureties of Mrs. Hutcherson, as executrix of John Pigg, should have been parties. And for this he cited Spottswood v. Dandridge, 4 Munf. 289; Taliaferro v. Thornton, 6 Call 21; Story's Equ. Jur. § 161, 162, 169; Primrose v. Bromley, 1 Atk. R. 89; Calvert on Parties 235, 17 Law Libr. 2d. That it was error to make a joint decree against the executor and the surety, before there had been a decree against the executor and a return of nulla bona, or other evidence of his insolvency. Roberts v. Colvin, 3 Gratt. 358. Stanard and Bouldin, for the appellee, insisted: 1st. That it was too late for Clement Pigg to object in this court that the representatives of the other sureties had not been made parties, after he had allowed the case to proceed in the court below upon the bill taken for confessed as to him. They referred to Chappell v. Robertson, 2 Rob. R. 590, and Kee's executors v. Kee's creditors, 2 Gratt. 116. 2d. That the case cited by the counsel for the appellant, on the second point, shews that the decree may be against the executor and the surety at the same time; and although it was most proper that the decree should be first against the executor and then against the surety, that was a mere matter of form, which the court will correct without reversing the decree. DANIEL, J. delivered the opinion of the court. The court is of opinion, that as by the executorial bond given by Mrs. Pigg and her sureties, the obligors bound themselves only for the due administration, by the executrix, of the goods, chattels and credits of the testator, the sureties are, to no extent, responsible for the rents or profits of the real estate; and as it appears that the balance reported by the commissioner in favour of the appellee, and for which the decree was rendered, is composed in part of items for rent of the real estate, received by the appellant Hutcherson in right of his wife, the executrix, it was erroneous in the Circuit court to render a joint decree for said balance against the appellants. The court is also further of opinion, that as no reason is shewn or alleged for failing to make the representatives of the other sureties to the executorial bond parties to the suit, it was error to render any decree in the cause against the appellant, Clement Pigg, in the absence of said representatives. Decree reversed, with costs to the appellants. Cause remanded, with leave to the appellee to make the proper parties, and for a resettlement of the accounts and further proceedings in order to a final decree. DECREE REVERSED. 1851. October Term. Richmond. OTT's ex'x v. KING & als. (Absent Cabell, P.) November 10th. A debtor contracts to give a lien on two adjoining tenements, to secure the debt, and the creditor is in possession of one of the tenements under an agreement by which the rent of the tenement is to be taken in satisfaction of the interest on the debt. Afterwards the debtor, becoming embarrassed in his circumstances, conveys all his property in trust to pay his debts. HELD: The creditor is entitled to enforce his equitable lien not only against the debtor but his creditors. In January 1811 George Ott leased from Miles King a lot on Main street in Norfolk, for a term of twelve years, to commence from the 31st of March 1811. Ott covenanted to build on this lot a good brick house, and to pay an annual rent of 220 dollars. It was further agreed that either Ott or King might at any time, not less than twenty or more than sixty days before the expiration of the term, give the other party notice the lease would not be renewed, and in that case the buildings erected by Ott were to be valued, and the amount of the valuation to be paid by King to Ott before the expiration of the term, and then on such payment the premises to be surrendered by Ott. Ott entered on the premises and erected a large double brick tenement, &c., and continued in possession throughout the term, which ended on the 31st of March 1823. On the 1st day of February 1823 Ott gave King a written notice. that he would not renew the lease, and appointed a valuer of the buildings. King on his part appointed a valuer, and the two valued the buildings at 8159 dol |