Adam L. Bingaman et al. vs. William Robertson, Trustee, &c., 25 Miss. 501

Mr. Justice Yerger delivered the opinion of the court. At the May term, 1841, of the circuit court for Adams county, the Agricultural Bank obtained a judgment against the appellants, as executors of Benjamin Harman, deceased; which judgment was afterwards transferred and assigned to the Commercial Bank of Natchez. The charters of both these banks have been declared forfeited, and the corporations dissolved, by virtue of proceedings had under the act of 1843; and the ap-pellee, William Robertson, was appointed as trustee to sue for and collect the assets belonging to the Commercial Bank of Natchez.

On the 26th day of October, 1849, Robertson filed a bill in the superior court of chancery to enforce the collection of this judgment, upon the ground, that execution at law could not be taken out by reason of the forfeiture of the charter of the Agricultural Bank, and the consequent dissolution of the corporation. This bill was demurred to, and the demurrer overruled. The objects sought to be obtained by this bill, are the same that would be reached, ordinarily, by means of a scire facias, to revive.

But as the Agricultural Bank, at the dissolution of that corporation, had no interest in the judgment, no proceedings to collect it could be sued out in the name of the trustee of that bank, as was ruled in the ease of Bacon v. Cohea; and hence the necessity of applying to a court of equity in this case. But it is said, this court will not grant the relief asked,, because it appears on the face of the record, that the original judgment at law was rendered upon a promise -made by the executors after the death of the testator.

It is probably a sufficient answer to this objection to state,, that in our opinion the defendants have no more right to insist in this proceeding upon a defence that existed prior to the rendition of the judgment at law, than they would have had if it had been a proceeding by scire facias to revive the judgment at law.

But if we were willing to go behind the judgment, and to permit the party to insist in this proceeding upon a defence which' might have been made to the rendition of the judgment, we are not prepared to hold, that no action could have been maintained to charge the estate, upon the promissory notes given by the executors. It is certainly true, that a promise made by an executor to pay a debt barred by the statute of limitations is not binding upon the estate, nor will it revive the right of action, or withdraw the claim from the operation of the statute of limitations.

But "it has not yet been decided, nor are we prepared to deci.de, that where a valid claim exists against an estate upon which an action might be maintained, the executor may not, by an express promise to pay at a future time, give the party a right of action founded on such promise, which will authorize a judgment to be recovered out of the assets of the-estate. But it is said that the statute of limitations bars the right to enforce this judgment, and we are cited to the 13th

section of the act of 1822, (Hutch. Code, 827,) and the 12th

section of the-act of 1844, (Hutch. Code, 831). These sections have been carefully examined, and we do not' think they apply to this case. - There is but a slight difference in the phraseology of the two sections. By the 13th

section of the act of 1823, it is declared, that no action of debt shall be brought against an executor or administrator upon a judgment obtained against the testator or intestate, nor shall any scire facias be issued to revive the same, after the expiration of six years from the qualification of the executor or administrator; and all such judgments, after the expiration of six years, upon which no proceedings shall have been had, shall be deemed to have been paid and discharged. It will then be seen, that this

section only applies to judgments against the testator or intestate; and, as the judgment sought to be enforced in the present case was not rendered against the testator or intestate, but against the executors, the statute clearly does not apply to it. Neither do we think, that the 12th

section of the act of 1844 bars the right of complainants to enforce their judgment; as we conceive that

section only applies to judgments rendered against the testator or intestate, or to causes of action which existed against the testator or intestate.

This is manifest from the words of the act, which are as follows: “ No action, or suit at law or in equity shall be brought against any executor, administrator, or other person or persons having the charge or management of the estate of a testator or intestate, upon any judgment or other cause of action against his testator or intestate; nor shall any scire facias be issued against any executor, &c., to revive any judgment or other cause of action, after the expiration of four years from the qualification of such executor, &e.; and all such judgments or other causes of action, after the expiration of four years as aforesaid, upon which no proceeding shall have been had, shall be deemed to have been paid and discharged.” The first clause in this

section only refers to “judgments or other causes of action against the testator or intestate.” But it is said, that the clause referring to the revival of judgments is general, and applies as well to judgments against the executor or administrator, as to judgments against the testator or intestate.

This is certainly not the proper construction of the statute, which fixes the period at which the limitation shall begin to run, not at the date of the judgment or the maturity of the claim, or when the cause of áction has accrued, but “ from the qualification of the executor,” &c., a period of time when there could not exist against him, as executor, any judgment; and we cannot suppose it to be possible, that the legislature intended to fix the period at whieh the limitation should commence running, anterior to the rendition of the judgment itself. In our opinion, the twelfth

section of the act of 1844 only applies to judgments rendered against the testator or intestate in’ his lifetime, and to claims upon which the party had a cause of action at or before his death.' Judgments rendered against the executor or administrator after Jiis qualification, and demands on which the right of - action has accrued after the death of the testator, must be regulated by other provisions of the law,.by none of which is the enforcement of the judgment in this suit, barred. Let the decree be affirmed.