Leake v. . Gilchrist , 13 N.C. 73 ( 1829 )

FROM RICHMOND. The defendant, besides the pleas of payment and a set-off, pleaded "that the writing obligatory declared on is of right the property of Archibald Gilchrist and Polly McKennon, to whom letters of administration on the estate of Daniel McKennon, the obligee, issued from the Court of Common Pleas, etc., of Richmond County."

On the trial it appeared that McKennon, the obligee, died in Marion District, South Carolina, in February, 1825; that in March following letters of administration on his estate were issued by the ordinary of that district to John McLeod, who, in September, 1825, assigned the bond in suit to the plaintiff; that in April, 1825, letters of administration upon the estate of McKennon, the obligee, issued to Archibald Gilchrist and Polly McKennon, from the county court of Richmond; that the defendant at the date of the bond, and ever since, had resided in Richmond county, where it was executed, and that Daniel McKennon had at that time, up to the period of his death, no fixed habitation, but that he resided some times in this State and some times in South Carolina.

His Honor, Judge DANIEL, instructed the jury that the plea must be taken to be a denial of the validity of the assignment, (74) and that the administrator appointed by the ordinary in South Carolina could not make a legal assignment of the bond, so as to enable the assignee to maintain a suit in the courts of this State.

In submission to this opinion of his Honor the plaintiff suffered a non-suit, and appealed to this Court. Real property is governed by the law of the country where the land lies, personal estate by the law of the country where the owner has his domicil (2 Ves. Bea., 131). The succession to the personal property of an intestate is regulated by the law of that place which was his domicil at the time of his death. For that purpose there can be but one domicil (Somerville v. Somerville, 5 Ves., 750). These are settled principles of international jurisprudence. They are founded on public policy, and are conducive to public convenience (78) (2 Kent Com., 344). To ascertain, then, the right of succession to the personal estate of an intestate it is necessary to inquire where was his domicil at the period of his decease. If it were in South Carolina the laws of that State must furnish rules for the succession to and the distribution of his personal estate. For these purposes there can be but one domicil; although there is some times difficulty in ascertaining that domicil, when the deceased has had more than one place of residence, at each of which he continued occasionally to reside to the period of his death.

The statement made by the presiding Judge shows that the intestate had no fixed residence, but resided occasionally in South Carolina and occasionally in this State, and that he died in Marion District, in South Carolina, where McLeod, the assignor, was duly constituted administrator of his estate. If the intestate had a fixed domicil the laws of that country must control the right of succession to his personal estate, without regard to the laws of the place where he may have casually been at the moment of his decease. The intestate being at a place, and dying there, is primafacie evidence that he was domiciled there; and the presumption is much strengthened when it appears that he had no domicil of a more permanent or fixed character than that at which he died. The circumstance of the intestate's death occurring in South Carolina, if it were not his home, might be explained and the presumption rebutted. But unexplained, and in the absence of other testimony, we must take that place to have been his domicil, at the time of his death; and the laws of that State will furnish rules for the succession to and the distribution of his personal estate. The administrator appointed in South Carolina would be entitled to all the effects of the deceased in that State, including the bond, to be distributed according to the laws of the intestate's domicil. The deceased dying in South (79) Carolina, and having the specialty there, he who obtained possession of it would disregard the claims of an administrator appointed in this State, and would only notice the title of an administrator appointed there.

By the laws of England debts due by specialty are deemed the goods of the intestate in that diocese where the securities happen to be at the time of his death. Debts due by simple contract follow the person of the debtor, and are esteemed goods in that diocese where the debtor resides at the time of the creditor's death. Bac. Abr., Title Executors, E. 2; Com. Dig., B. 4; 3 Salk., 70, 164; Cro. Eliz., 472. "An administrator appointed in Ireland released a bond debt due to the intestate from a person in Ireland; but the bond being in England at the death of the intestate, an administrator appointed in England maintained an action there on the same bond against the obligor, because the administrator appointed in Ireland had no control of the debt, and no authority to release it." Dyer 305; 11 Mass. 268. Why is this principle not applicable in our country? Why should not a specialty belonging to the intestate be assets in that State where it was at the time of the intestate's death? And why should it not become the property of the administrator duly appointed in that State? It is to be inferred from the statement of this case that the bond which is the subject-matter of this controversy was in South Carolina, in the possession of the intestate, at the time of his decease.

If South Carolina were the place of the intestate's domicil at the period of his death, and the specialty was also there at that time, administration duly granted by competent authority in that State would give the administrator right to take possession of the specialty, and he would acquire good title thereto. Having acquired possession of the bond he could receive payment and give an acquittance, or he could release the debt and discharge the obligor. Doolittle v. Lewis, 7 (80) Johns. Ch., 49. Authority to collect the debt and discharge the obligor certainly implies power to assign the obligation, if it be negotiable. By the principles of universal law he who has the title to property may sell and dispose of it; and he who obtains it from the owner may assert and exercise the rights of ownership.

As the plaintiff claims under the assignment of McLeod, the administrator of the obligee, it is necessary for the plaintiff to show the title of the assignor. To establish this fact the domicil of the obligee and the place where the bond was at the time of his death were subjects of inquiry. The testimony was not full on these points; but the plaintiff may have omitted to introduce more evidence to prove these facts, by discovering that the presiding judge thought the plaintiff's case defective on another and distinct ground.

It was admitted on the trial that McLeod, the assignor, was duly constituted administrator of the deceased obligee, in March, 1825, in Marion District in South Carolina, where the intestate had died in the preceding month of February; and that the bond had been executed in this State in October, 1824, and the assignment was made in September, 1825, but it does not appear at that place. Nor do I think the place where the assignment was made material; if the specialty were negotiable, and the administrator had title thereto, it was assignable by him in either State.

The law of the place where the contract was made is the law of the contract; by which it is to be expounded, and by which its incidents and properties are to be ascertained. Harrison v. Sterry, 5 Cranch, 289, 298, 302. This specialty was executed in our State. By our laws it is negotiable, and all the rights and interests of the obligee can be transferred by endorsement. If, then, the specialty were in South Carolina at the time of the intestate's death, and that was the place of his domicil, and it thus became the property of McLeod, the administrator, and being negotiable by the laws of the place (81) where it was made, like promissory notes, and having been regularly transferred by endorsement to the plaintiff, the property is vested in him.

But it is correctly said that the administrator appointed in South Carolina can not bring an action in his representative character in our Courts. Administration granted in another State gives no authority to sue here. Morrell v. Dickey, 1 Johns. Ch., 156; Anon. 2 N.C. 355; Butts v.Price, 1 N.C. 289; 1 Cranch, 259; 3 P. Wms., 369. Hence it is contended, that although the specialty rightfully came to the hands of the assignor, was his property, was negotiable, and was duly transferred to the plaintiff, yet the assignee claiming under the assignment could claim no other right or interest than that enjoyed by the assignor; that the assignee sits in the seat of the assignor. From which it is insisted, as the assignor could not sue in this State in his representative capacity on a grant of administration made in South Carolina that the plaintiff, his assignee, can not sue here. But questions of property, rules of distributions and rights of succession are the points involved in this case, and not the ability of a foreign administrator to maintain actions in our courts.

The plaintiff labors under no disability to sue in our courts; they are open to him. If, then, he acquire title to the specialty, he has both a right of property and a right of action. A union of these rights will certainly enable him to stand erect in our courts. Why should he be deprived of a remedy to enforce the payment of the money secured by the specialty? It is not pretended that he is subjected to any personal disability which closes our courts of law against him; nor is there anything in the subject-matter of the controversy of which our courts have not jurisdiction; neither can it be transferred by the administrator. Although it be admitted that the plaintiff might acquire the right of (82) property from the administrator, yet it is averred that the plaintiff could not acquire from the administrator a right of action. But it is replied, if the plaintiff acquire the right of property by the act of parties, the right of action attaches by operation of law.

Let it be conceded that the right of property was transferred to the assignee, still it is contended that the assignor having no right to sue here on the specialty, his assignee can not have any remedy. It is asked if an assignee can do that which his assignor can not. The act of Congress, ratified 24 September, 1789, prescribing the jurisdiction of the Circuit Courts of the United States, gives them cognizance of all suits of a civil nature when the matter in dispute exceeds the sum of $500, and the suit is between a citizen of the State, where the action is brought, and a citizen of another State. Under this act of legislation, unrestricted, it was supposed if two citizens of the same State should enter into a contract, and one should give the other a negotiable promissory note for a sum exceeding $500, that the payer could assign that note to a citizen of another State, and thereby give to the Courts of the United States cognizance of the matter, and thus deprive the maker of the note of the privilege of having any dispute growing out of the transaction adjudicated by the tribunals of his own State. This exposition was given to the statute by a Congress composed of enlightened statesmen and able lawyers; and to prevent the apprehended evil they exprssly [expressly] limited the jurisdiction of the Circuit Courts, in cases of suits on promissory notes in favor of an assignee, to those notes only on which actions could have been sustained in such courts by the assignor before the assignment was made. Had it not been for this restrictive provision which is added to the statute the assignee, after the endorsement of the note, could have maintained an action on the note in a court in which the assignor could have sued. But the evil was guarded against by sagacious legislators. (83) The payee transferred by endorsement the right of property to the endorsee; and had it not been for this restrictive provision in the statute the endorsee would have had by law a right of action which was not possessed by the endorser. This appears to be a parallel case; the same principle applies in each case, and must lead to a like conclusion.

The defendant pleaded "payment, set-off," and a special plea, which the presiding judge considered in substance "as denying the validity of the assignment." There was a general replication to each plea, on each of which issue was joined. The judge instructed the jury that "the administrator appointed in South Carolina Could not make a legal assignment of the bond, so as to enable the assignee to bring suit and recover the money in North Carolina." The plaintiff then submitted to a nonsuit. In Doolittle v. Lewis, 7 Johns. Ch. 49, the cancellor held that a bond being in the State of Vermont at the time of the death of the intestate, and where he resided, and he being the obligee, an administrator, being duly appointed in that State, became in law the owner of the bond, although the obligor resided in New York, and that the administrator so appointed could receive payment in New York of the bond from the obligor, where the administrator could not sue in his representative capacity, and such payment would be valid, and would discharge the obligation; and that such administrator could sell the land in New York which had been mortgaged to secure the payment of the debt, and that such sale could be made under the power given in the mortgage to the mortgagee and his executor or administrator. That the administrator could receive payment and give an acquittance, or release the obligor and discharge the debt, and that such acts might be done in a State where the administrator could not sue in his representative capacity. This specialty having been executed in North Carolina, and being negotiable by our law, if it were in South (84) Carolina at the time of the intestate's decease, and he had his domicil there, it became the property of the administrator appointedthere; and it is believed he could legally assign it.

When a suit is brought by an administrator in his representative character on a contract made by his intestate he makes a profert of his letters of administration. If the defendant intend to contest the plaintiff's right to sue in his representative capacity, it must be done by plea in abatement, and can not be done by evidence under the general issue, or any other plea in bar; for such a plea puts in issue the cause of action, and not the character in which the plaintiff sues. Moore v.Suttrill, 2 N.C. 16; Ex'rs. v. Oldham, 166; Butts v. Price, 1 N.C. 69; 1 Saund., 273, n. 3; 1 Salk. 285; 7 Mod. 141; 2 Ld. Raym. 824.

If the administrator appointed in South Carolina had brought suit on the bond in his representative capacity in our courts he would have made profert of his letters of administration; and if defendant had pleaded in bar, he could not have objected to the character in which the plaintiff sued. The defendant in this action has pleaded in bar. If, then, he contends so zealously that the assignment casts all the disabilities of the assignor upon the assignee, it is but fair to concede that it transfers all the rights and privileges of the assignor. Can the right of the assignor to sue in our courts be inquired into in the present state of the pleadings? The cause of action is put in issue, and not the character in which the plaintiff sues, or his assignor might sue. The true inquiry is, has the specialty been assigned by a person having authority to make the assignment? We have nothing to do with the ability of the assignor to sue in his representative capacity in our Courts. If the administrator of a payee of a negotiable promissory note endorse it the endorsee, in an action on the note against the maker thereof, never makes profert of the letters of administration; nor (85) is he required to do so, because he has not the same in his power or custody. Stone v. Rawlinson, Willes, 559; 3 Wils., 1.

If the proof satisfy the jury that the specialty was in law, the property of the administrator appointed in South Carolina, that it was negotiable, and was so assigned as to pass the title to the plaintiff, then the issue should be found for him. And it did not involve the inquiry as to the disability of the administrator to sue in his representative character in our courts, but only his ability to transfer the title by assignment. The judge considered the special plea of the defendant as denying in substance the validity of the assignment; and so I have viewed it, for the purpose of meeting the merits of the case, however defective and insufficient that plea may be found, on further examination.

The rule of law which prevents an administrator appointed in another state from maintaining actions in his representative capacity in our courts is founded in reason, justice and good policy. It is also founded on reasons of a technical character; but the great object of the rule is to prevent the assets being drawn out of our State, to the injury and inconvenience of domestic creditors, our own citizens, who may have contracted with the intestate on the faith of those assets. It is said that if the expedient of assigning the specialty will answer the purpose, and will enable the assignee to sue, when the assignor could not, that much inconvenience will arise; and that which could not be done directly will be done indirectly. This mischief it is in the power of the Legislature to prevent. They can adopt the provision which has been inserted in the act of Congress of 1789, or they may obviate the inconvenience in some other way. This court is to expound, not to make laws. But the evil can not be alarming; it can arise only in this class of debts, and, generally speaking, they form a small portion of the assets of an intestate's estate. And it is believed that a creditor — one of our own citizens, using due diligence, and applying (86) in due season to a Court of Equity — may prevent the removal of assets of this kind to his injury. He may at least prevent any combination of the administrator with another person to withdraw the assets. Confederating for this purpose, or any other like contrivance, to defeat the operation of the law, and to injure creditors, would be fraudulent.

The bond was the evidence of the debt; it was in the hands of the administrator appointed in South Carolina. No administrator here could, under such circumstances, enforce payment of the debt.

I think the nonsuit should be set aside, and a new trial granted.

HALL, J. I think the plaintiff is entitled to recover on the bond on which this suit was brought.

It does not appear that the intestate was a citizen of any one State or country; but that previous to his death he sometimes lived in North Carolina and sometimes in South Carolina, and that he died in the latter State. That circumstance must be considered as a substitute for a prior domicil or citizenship. The letters of administration on his estate were therefore properly issued in South Carolina, and the administrator had a right to assign over the bond on which this suit was brought.

It is necessary to take out letters of administration in this State to enable him to sue, but not to enable his assignee to do so.

PER CURIAM. Reversed.

Cited: Lee v. Gause, 24 N.C. 447; Grace v. Hannah, 51 N.C. 95;Moorefield v. Harris, 126 N.C. 627; Hartness v. Pharr, 133 N.C. 573;Holshouser v. Copper Co., 138 N.C. 258; Hall v. Railroad, 146 N.C. 346,349.

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