William H. Gibson, Appellant, vs. William Mitchell, et als., Appellees, 16 Fla. 519

The Chief-Justice delivered the opinion of the court. Two questions are presented in this case. First, whether the statute of non-claim may be interposed as a bar to the complainant’s demand; and, second, whether a bill in equity may be maintained against the heirs of a deceased co-surety for contribution, to the extent of the property descended to them from the co-surety % The defendants are the heirs at law of Thos. EL. Scott.

His estate was administered and property distributed to the heirs, and the administrator was discharged long before the payment by Gibson of the money demanded, and before the cause of action had accrued upon the surety bond executed by Gibson and Scott. The administrator had given due notice of the presentation of claims according to the statute. First.

It is claimed on the part of the appellees that the claim was barred because it was not presented to the administrator within two years from day of notice ; and because it was not presented to the discharged administrator within two years after the cause of action accrued. It was settled in this State by the case of May vs.

Vann, 15 Fla., 553, that as between co-sureties the relation of debtor and creditor does not exist until payment by one of the sureties, and that the statute of non-claim does not affect the rights of a co-surety who has paid the joint debt after the expiration of the two years mentioned in that statute. In addition to the authorities cited in that case, that of Sibley vs. McAlister, 8 N. H., 389, may be referred to, with its citations, as very strongly establishing the correctness of the rule. We can see no force in the suggestion that the claim should be presented to the discharged administrator.

Without some statutory provision making such a proceeding necessary or proper, there can be nothing effected by such action. The administrator having been discharged, he is functus officio, and no ,aet of his can affectlhe rights of the parties. ITe is no longer the representative of the deceased. Second.

The demand of the complainant having accrued, by his payment of the money which had become due by virtue of the joint obligation, after the discharge of the administrator and the distribution of the property to the heirs, the complainant proceeds against the heirs to reach the property of the intestate in their hands. It is said that this suit cannot be maintained because, as was decided by this court in Gilchrist vs. Filyau, 2 Fla., 94, an action cannot be maintained against the heir upon the bond of the ancestor.

That, however, was an action of debt upon the bond, seeking to charge the heir personally upon the covenant, and to recover a judgment for money due by the breach of the condition, without reference to the property descended; and it was properly held that in this country the action could not be maintained. That is not this case.

This is substantially a proceeding to reach the property of the co-surety, or its proceeds, as a fund-primarily'liable to the payment of his debts, and the judgment sought by the bill is that the estate in the possession of the heirs shall.be made' to contribute rateably the proper proportion of the amount paid on account of the joint liability. In Cox’s heirs vs.

Strode, 2 Bibb, 273, it is held that at common law the heir who had aliened the land descended before suit brought, might discharge himself by pleading nothing by descent at the sueing of the writ, but a court of equity held him responsible for the value of the land descended. (Citing 2 Atk., 204; 1 P. Williams, 777; 2 Saund., p. 7, n. 2.) And if there be no administrator the complainant may proceed against the heir. In Ellis vs. Gosney’s heirs, 1 J. J. Marshall, 346, there was no personal representative of Mrs. Gosney.

Her heirs or devisees were held responsible for her undertakings and liabilities to the extent of the property acquired by descent or will from her. The heirs were not expressly bound by the covenants, and could only be sued at law with the personal representative. It was, therefore, proper to sue them in chancery. It' was, therefore, ordered that the value of the pi’operty devised be ascertained, «fee. The same principles are enforced in Couchman’s heirs vs. O’Bannon, and same vs. Slaughter, 1 Marshall, 387, 388. It was held in Buford vs.

Pawling’s Ex., 5 Dana, 283, that heirs and devisees are responsible for the undertakings of their ancestor or testator, to the extent of the estate acquired by descent or devise from him, because the land was assets in his hands subject to the payment of debts, and the chancellor held him liable if he aliened it. We have examined all the authorities cited by counsel on both sides in this case and many others, and we find ample support for the doctrine referred to, and nothing essentially conflicting with it as affecting the case at bar.

Go-sureties are expressly bound to contribute pro rata the amount paid by each to the relief of all. (Act of Feb. 14, 1835; Th. Dig. 348.) And real estate is declared by statute to be assets liable to be sold for the payment of debts. The lands of the co-surety, Scott, have not ceased to be liable for the payment of his liabilities, according to the case presented by the bill and answer. The bill of the appellant should, therefore, be sustained, and the decree of the Circuit Court dismissing the bill is reversed.