Robert J. Young and wife, and others, vs. Edward Reynolds and others, Exc'rs of Joseph W. Reynolds, 4 Md. 375

Le Grand, C. J., delivered (he opinion of this court. The appellants, on the 28th day of May 1847, filed their bill in the court of chancery against Anne R. G. Mackall and Louis Mackall, Jr., alleging, that they and the defendants in that proceeding were the heirs at law of Thomas Mackall, deceased, and as such, seized of real estate lying in Calvert county. They aver it to be incapable of beneficial division amongst the parties, and pray a decree for its sale, and that the proceeds may be distributed according to the rights of parties.

Before the answers were filed, or decree passed, Edward Reynolds and others, as executors of Joseph W. Reynolds, on the 10th July 1847, fried their bill against the heirs at law of Thomas Mackall, praying a sale, for (he payment of his debts, of the real estate of which he died seized. These suits were, on the 15th day of May 1848, by agreement consolidated, but without prejudice to the right of the heirs at law, to rely on any defences they might have against the claim of Reynolds’ executors. It is the claim of Edward Reynolds and others, as executors of Joseph W.

Reynolds, which is now before us for adjudication. The bill of Reynolds shows that the claim originated in the following manner: On the 14th day of September 1830, Joseph W. Reynolds, as trustee of John G. Mackall, deceased, sold a part of his real estate to Thomas Mackall for the sum of $3832,32, payable with interest in instalments, and took from him his bond, with security, for the payment thereof, in three equal instalments. At May term 1833 of Calvert county court, Reynolds recovered judgment against.Mackall and his surety for the sum of six thousand dollars, to be released on the payment of such sum as Mr.

Baden should fix. At May term 1844 — Joseph W. Reynolds having previously died — the judgment was revived in favor of his executors against Thomas Mackall, who had survived his security. The bill also avers, that Thomas Mackall having died, letters of administration were granted to Anne R. G. Mackall, and that his personal estate is insufficient to pay his debts. This bill was answered on the 28th of December 1847, by Young and wife, and Anne R. G. Mackall. Louis Mackall, Jr., being under twenty-one years of age, by his answer puts the complainants to proof of their claim.

The defendants admit the sale, as alleged to have been made by Joseph W. Reynolds, as trustee, and the giving of the bond by Thomas Mackall. They also admit the recovery of the judgment and the revivor of it, but say it was to be released on the payment of such sum as one Jeremiah Baden should ascertain to be due, and that the original judgment was so entered; and also that thejiat was entered subject to such credits as counsel should ascertain. They also claim the benefit of certain credits, and deny the right of the executors of Joseph W.

Reynolds to receive the balance, if any be due on the bond, as it is not averred the latter had paid or satisfied the persons entitled to the proceeds of sale of the estate of John G. Mackall. The proceedings in the cause show, that at May term 1833, Joseph W. Reynolds obtained a judgment in Calvert county court against Thomas Mackall, to be released on the payment of such sum as should be ascertained by J. M. Baden. The amount was never fixed by him. A scire facias was issued on the judgment, and at May term 1844, the executors of Joseph W.

Reynolds obtained a fiat, to be released on the payment of such sum as Alexander Randall and J. Dalrymple should ascertain. This was not done until 1849, and Thomas Mackall died in the year 1846. There can he no doubt that the original judgment merged the bond, nor that it was final. Bank of United States vs. Merchants Bank, 7 Gill, 416. Turner vs. Plowden, 5 Gill and Johns., 52, But, although the judgment was final, it was not effective, nor could it be so, until the amount was ascertained, and this was not done and entered of record until after the death of Thomas Mackall.

This was clearly irregular, for even were it conceded the death of Mackall did not revoke the authority of the referees, still there is not only no evidence in the record that Mackall was ever invited to attend on their consultations, and exhibit the proofs of any credits to which he might be entitled; but it is manifest from all the circumstances attending the ascertainment of the amount due that Mackall was dead at the time.

It is a well established principle, both at law and in equity, that where persons to whom the parties have agreed to refer matters in dispute have consented to undertake the office, they ought to appoint a time and place for examining the matters, and give notice of such appointment to the parties, or their attorneys. Kyd on Awards, 95. And it is said in Rigden vs.

Martin, 6 Har. and Johns., 406, “that the parties ought to have notice of the time of meeting, is a position so strongly supported by common justice, that it would seem not to require the aid of authorities.” The same doctrine is fully recognised in Emory, et al., vs. Owings, 7 Gill, 488. This being so, the. question is presented whether this ascertainment of the referees can be enquired into in this proceeding? We think it can. Had Mackall been living when the award was made, it would have been set aside on his motion by the county court, because of irregularity arising out of the failure to give him notice.

The award and entry seem to have been made without notice to any one who was to be prejudiced by it. There can be no doubt that a court of equity would have enjoined the execution Of such a judgment, and would have regarded the act of the referees under the circumstances as invalid and of no effect. It is not like the case of a judgment which concludes the parties and which cannot be collaterally inquired into. It is in the predicament of one which has been obtained because certain equities, cognizable in a court of equity, could not be availed of in a court of law.

In all such cases a court of equity will enjoin the execution of the judgment at law until right and justice be done between the parties. In the case of Jones vs. Slubey, 5 Har. and Johns., 372, the court of chancery and the Court of Appeals authorised a defendant to go behind a judgment obtained at law against him, and to enter into an examination of the accounts between him and the judgment creditor, it not being in his power to do so in the suit at law in which the judgment was obtained against him.

In that case the complainant had previously obtained a judgment at law on a bond of the defendant, who in his answer alleged that the bond had been given for a larger amount than was actually due. He admitted that the suit was instituted on the bond and judgment obtained against him, he being informed he could make no defence at law', and averred that he ought to have been credited with $2298.76, and that judgment should only have been entered for the balance. He did not pretend he had paid anything on the bond after it had been executed; his allegation was, that it had been given for too large an amount.

The chancellor, in his opinion, said the amount due would be a subject for the consideration of the auditor, and the Court of Appeals, in alluding to this branch of the case, say, “as to the objection, that the judgment obtained at law by the complainant is for more than is actually due, and that the chancellor ought to have made the proper allowance, &e., it will be seen, on reference to the record, that by the decree the proceeds of the sale of the property are directed to be brought into the court of chancery, to be applied under the directions of the chancellor; and the chancellor, in his opinion, says, that the amount due will be a subject for the report of the auditor, when all credits to which the defendant, Nicholas S.

Jones may be entitled, will be allowed him.” The bond was dated 12th May 1809, and the judgment was obtained in 1812. We have examined the original papers in the case, and find that when the case was proceeded in by the court of chancery, after the decision by the Court of Appeals, that the chancellor referred the whole accounts to the auditor, who stated an account commencing in 1806, three years before the date of the bond, and six before that of the judgment.

And this was done manifestly on the ground that the defendant could only avail himself of his defences in equity, and we regard this case as liable to the application of the same principle. The amount was ascertained not only without notice to Thomas Mackall, but several years after his death, without notice to any of his representatives or heirs. We regard the act of the arbitrators to be just as much a nullity as if done during- the life of Mackall, and we have shown it would have been so regarded. It was not a reference under any act of Assembly, but merely in pursuance of an agreement between the parties.

When the judgment was revived against Thomas Mackall all the instalments were due, although such was not the case when the original judgment was obtained; and although where there is a failure to pay an instalment when due, the whole bond is forfeited and the judgment is for the penalty of the bond, yet, under the statute of 8 and 9 William, ch. 3, where all the instalments are not due when the judgment is obtained, the plaintiff must have a scire facias to recover future instalments.

The judgment remains as a security to answer such damages as shall be sustained by a further breach of the covenant or writing, and the plaintiff may have a scire facias upon the judgment, suggesting other breaches of the covenant or writing. 1 Wms. Saunders, 72. According to this, when the judgment was originally obtained, the plaintiff would have been compelled to assign his breaches, which would have been the non-payment of the instalments then due.

He could only have had execution for what was due, and hold the judgment as security against further breaches which he would have been compelled to set out in his scire facias. But this cannot be of any effect now on this case. Mr. Baden never ascertained the amount due, and when the original judgment was revived all the instalments were due.

We therefore regard the judgment as valid, but the ascertainment of the amount due as not binding on the heirs of Thomas Mackall, and the indebtedness on the judgment as a proper subject of inquiry of the. court of equity, and we shall accordingly remand the cause for that purpose.

It is true the answers of the adult defendants admit the insufficiency of personal assets to pay the debts of the deceased, but this does not dispense w'ith the necessity on the part of the creditor to show that he has applied those assets as far as they will go; and by the proceedings in this cause it appears that Nathaniel Duke, by his first account, as collector of Thomas Mackall, charges himself with $521.22|:.-This must be accounted for before the realty can be called upon to make up this deficit. If the administrator has committed a devastavit his bond is liable.

When this case is returned to the court of chancery, that court will examine into the matter and credit the realty for whatever amount of the personalty has been misapplied. We remand the cause, that an account may be stated showing the amount due by the estate of Thomas Mackall, according to the principles which we have indicated.- Decree reversed and cause remanded under the Act of 1832,. chap. 302.