#### JOSEPH DOZIER v. PHILIP DOZIER.

June, 1835.

|jp0n a seeking satisfaction of an equitable demand against a deceased debtor, from property in the hands of his donee, it was held, that the administrator of the debtor was a necessary party, and that a decree against him in a former suit establishing the debt, and ascertaining that he had fully administered, was not admissible to prove the case of the plaintiff.

This case came before the Court upon an appeal of the defendant from the decree of the Court of Equity of Camden County.

The transcript showed the case made by the pleadings to be as follows. The plaintiff, as surviving executor of Willoughby Dozier, junior, filed his bill in October, 1828, against the defendant Philip Dozier, and against W. D. Barnard, and charged that said Willoughby, junior, made his will and appointed the plaintiff and one Dennis Dozier the executors, who proved the same after the death of the testator: that said Dennis took into his possession nearly all the assets, which he wasted, and that without accounting for them, he died in 1826, intestate and insolvent, and the said Barnard obtained administration of his estate: that the plaintiff, as surviving executor, had filed his bill in the Court of Equity against Barnard, and thereupon in March, 1828, obtained a decree declaring, that said Dennis was indebted to him in the sum of eighteeen hundred and eight dollars and ninety-nine cents ; but that Barnard had no assets of said Dennis, and had fully administered all that had come to his hands. The bill further charged, that there were other debts or judgments at law, to more than the value of the real estate of said Dennis in the hands of his heir's, and that the plaintiff could not get satisfaction of his said decree. It then charged that the defendant Philip married the daughter of said Dennis, and that upon the marriage he received by way of loan or parol gift several slaves from said Dennis which he retained, and which were of value sufficient to answer the said decree : that Dennis was greatly indebted at the time of the loan or gift, and that the same was fraudulent against his creditors; but that the defendant *97Philip insisted on his title, and refused to surrender the slaves that they might be sold for the plaintiff’s debt. And the bill prayed a discovery and account and satisfaction out of the negroes, and to that end that process might issue against Barnard, and the said Philip.

On this bill process was not issued against Barnard, but against Philip Dozier only, who appeared and put in an answer.

It admitted, that the plaintiff and the said Dennis were joint executors as charged in the bill, and the death of the latter, and the administration of Barnard, and the suit against him, and the decree; but it denied all knowledge of the assets received by Dennis, or of his administration of them, or that he wasted any of them, or was indebted to the plaintiff as surviving executor, or otherwise; and required the plaintiff to prove those allegations., It also denied any knowledge of the assets of Dennis which- Barnard received, or whether the plaintiff’s recovery was just, or whether Barnard had fully administered or not. It stated that Dennis was indebted to the defendant, and also to his wife, as their former guardian, and that in part payment thereof the defendant purchased one of the slaves mentioned in the bill; and that in 1818 the said Dennis gave by parol to the defendant, byway of advancement to his wife, a daughter of said Dennis, certain other slaves, which he took into his immediate possession, and has retained them ever since, claiming them as his own, and adversely to all other persons; and that at that time the said Dennis was not insolvent nor embarrassed with debt. The answer set forth the names of the slaves and their increase, and as if the same were pleaded, relied on the statute of limitations.

Upon a replication to the answer the parties took proofs as to the circumstances of Dennis Dozier, at the time of the defendant’s marriage, and other matters not material to state.

The Court directed a reference to the master to take an account of the slaves, their number, value, and profits; and subsequently to take an account of the profits received by the defendant in the life time of Dennis, of certain real *98estate of the intestate, which he permitted the defendant to occupy, and to take an account of the debts due from said Dennis to the defendant and his wife.

The master reported the present value of the slaves to be two thousand six hundred and seventy-five dollars; their nett profits seven hundred and fifty-nine dollars; profits of land one thousand and eighty dollars; making together four thousand five hundred and fourteen dollars : that Dennis owed the defendant and wife five hundred and ninety two dollars and ninety cents; and that after deducting the same the defendant had funds to the value of three thousand nine hundred and twenty-one dollars and ten cents.

The defendant excepted to the report, because the master charged him with the present value of the negroes, instead of that at the time he received them, and because he was charged with the profits thereof, and because he was charged with the rents of the land, and because he was charged with the hires of the negro sold to him by the intestate.

The last exception his Honor Judge Steange, on the last Fall Circuit, allowed, and overruled the others, and confirmed the report in all other respects, and thereupon decreed, that the defendant should pay to the plaintiff the sum of two thousand two hundred and eighty-five dollars and eighty-five cents, being the principal and interest found due him in the decree mentioned in the bill, and also the costs of this suit. From that decree the defendant appealed to this Court,

There was no evidence in the record that any debt was owing from Dennis Dozier to the plaintiff, except the transcript of the former suit between the plaintiff and Barnard as administrator, and the decree therein made as mentioned in the pleadings in this suit. In the former suit a reference was made by consent at the first term to the master to take the accounts. He reported to the next term the sum due to the plaintiff from the intestate Dennis to be one thousand eight hundred and eight dollars and ninety-nine cents. No account was taken of his assets in the hands of Barnard, his administrator, who had answered *99that he had none, but had fully administered. The cause was set for hearing on bill and answer, and the report confirmed by consent, the plaintiff admitting expressly that Barnard had fully administered. Thereupon a decree was made by consent as expressed, that the plaintiff recover the said sum of one thousand eight hundred and eight dollars and ninety-nine cents, to be levied of the assets of Dennis Dozier, deceased, if any there be, and that the plaintiff should pay the costs.

Kinney, (with whom was Iredell,) for the defendant.—

This bill is analogous to an action at law by creditors against an executor de son tort, and consequently governed by the law upon that subject. The negroes in question were either given or bailed to the defendant. If bailed, this bill cannot be sustained, because there is a rightful administrator, who is fully competent to bring suit, and to whom the negroes belong. As a general rule an action cannot be maintained against a person having the goods of testator or intestate, if there be a rightful executor or administrator. Peake’s N. P. Cases, 87. Turner v. Child, 1 Dev. Rep. 25. Norfleet v. Riddick, 3 Dev. Rep. 222. It may be maintained, when there is a rightful executor, who is bound by his privity with the testator, if the defendant obtained possession in fraud of creditors. To make a gift fraudulent per se, the plaintiff must show the debt to have been in existence at the time of the gift; otherwise it is only evidence among other things to show a fraudulent intent. O’Daniel v. Crawford, 4 Dev. Rep. 197. Iri this case the liability to become indebted was incurred at the time of the gift, but the debt itself did not exist; and the evidence does not justify the presumption of a fraudulent intent. But if, according to the allegations of the plaintiff, the negroes were loaned, the bill cannot be sustained, for the reasons before given.

If, however, it be admitted, that the defendant has incurred the responsibility of an executor de son tort, then it is incumbent on the present plaintiff to make out his case like every other plaintiff. Although the defendant as executor in his own wrong is not a favourite, yet the law solicitously guards the rights of the intestate, and for *100his sake calls upon the plaintiff to prove indebtedness. Being charged as executor, he is entitled to all the privileges of one, so far as the estate of the intestate is concerned. He is not only entitled to all the defences (retainer excepted) of a rightful executor, but is bound to make them. Consequently the indebtedness of the intestate must be shown. The decree against the administrator of Dennis Dozier, is no evidence against the defendant, because there is no privity between them.

The universal rule is, that judgments and decrees are evidence only between parties and privies. 2 Starkie’s Ev. 89, et seq. Case v. Reeves, 14 John. 79. Mason’s Devisees v. Peters, 1 Munf. 437. Osgood v. Manhattan Company, 3 Cowen, 612. Privity, whether in blood, in law or estate, cannot be created, except by reason of an estate obtained from the party in whom the privity is alleged. The defendant in this case has derived nothing from the administrator. In every possible case of privity, the declarations of the party in whom privity is alleged may be given in evidence in relation to the subject-matter. It will not be contended, that the administrator’s declarations can be given in evidence against the defendant in this case. Privity is limited in time to the duration of the estate. Feoffor’s acts are not evidence after he has passed his estate. Note to Arnold v. Bell, 1 Hay. Rep. 396, and cases collected by Mr. Battle in the second edition.

There can no case be found in which an action has been sustained against an executor de son tort upon the basis of a judgmnt against the rightful executor. At common law there is no privity between the executor and administrator de bonis non. Grant v. Chamberlain, 4 Mass. 813.

There is no supposable case in which a judgment can be given in evidence against a stranger, if it subjected the person against whom it was rendered to no inconvenience. This decree is not what the law recog-nises as a decree, because it subjects the administrator to no possible loss or inconvenience. It admits that he has no assets, and does not profess nor ask to bind asssets *101 quando, and consequently cannot bind' such. Miller v. Spencer, 2 Murph. 281.

The proceedings against heirs to subject lands upon a judgment against the administrator, owe their whole force to the act of 1784, {Rev. ch. 226,) and prove that there was no privity at common law. There is no privity between the heir and executor, or devisee and executor. 1 Munf. 437, and 3 Co wen, 612, before cited.

No case can be supposed in which the common law trusts one to bind the rights of another by his acts ancj declarations, unless it has committed to him the care of the subject-matter. In this case the administrator had no interest in the subject-matter.

As a matter of opinion, I should admit, that judgments against the principal were prima facie evidence against sureties, but in this state the law is not so. M‘Sellar v. Bowell, 4 Hawks, 34. Judgment against a sheriff for acts of his deputy is evidence prima facie of the amount of damages, but not of the fact of negligence, unless the deputy has been notified and permitted to defend. See cases referred to in John. Dig. But all these cases stand upon reasons that have no application here.

No single test can be applied, that will admit this decree as evidence. There is no community or privity of interest between the administrator and donee. The latter claims above the former.

The bill must be dismissed for want of parties. The administrator should have been a defendant, because if there be assets, equity will not disturb the gift. And a decree heretofore obtained is not sufficient; if ever necessary, the necessity still continues.

Devereux and Bailey, for the plaintiff.

The decree against the administrator cannot be impeached but for fraud. It was necessary that a debt should be established before a bill was filed for subjecting property in the hands of another. State Bank v. Knox and M‘Marine, ante, 53. The act of 1784, makes that legal, which was before the practice of a Court of Equity. Jeffreys v. Yarbrough, 1 Dev. Eq. Cas. 506. A decree ascertaining a debt in a suit against the administrator, is evidence against all the world, as the administrator is the person whose peculiar *102duty it is, to represent the dead man, and take care of his estate. Gui bono, is the debt to be established at law, unless the judgment is admissible as evidence against others, in whose hands the property is ? Debt will not lie against the defendant in this case, as executor de son tort, because this is an equitable demand.

If the negroes were given, the gift had its operation from the death of the donor, and the debt existed at that time.

As to making the administrator of Dennis Dozier, a a party to this suit, for what purpose is it to. be done? Nothing is alledged in the answer, to avoid the decree. Nothing is sought against him. If he were made a party he might demur.

Iredell, in reply.

The decree against the administrator is inadmissible to charge the defendant, in this case. 1st. On general principles, because he is not a party or privy.

2dly. Because of ambiguity. The bill against the administrator of Dennis Dozier, is in the name of the plaintiff as administrator of William Dozier, sen. and prays also as administrator of William Dozier, jun., and neither the account taken in the cause, nor the decree, states in which capacity he recovered.

3dly. There are evident marks of collision on the face of the decree; and to make it evidence against others, there should be no suspicious circumstances. In actions against executors de son tort, judgments against the administrators, have never been in practice, introduced as evidence.

But if the evidence is admissible, then it is contended that the defendant held the negroes, either by a parol gift or a loan. If by a parol gift, the plaintiff does not show that his debt was then due, and there is no proof of fraud. If by loan, defendant is entitled to hold them till demanded by the administrator, to whom alone he is responsible for them. He cannot be subjected in such case, as executor de son tort, because thereby the order of administration might be subverted.

The administrator of Dennis Dozier, should be a party defendant to this suit; because, in all cases, where the ancillary aid of a Court of Equity is called in, the person against whom the judgment exists, must be made a party, *103for he may show it paid, and also to secure the person who may now be called upon to pay. -

A Pa™5 slaves is void as to the donor, leaving pertysuf-ficieny¡j-debts, and the d°"ee subjected ^^cutor desontoru

Ruffin, Chief Justice,

after stating the case as above, proceeded as follows. — The counsel for the defendant, without entering into the details of the proceedings in the Court of Equity, has insisted here that the decree is erroneous upon two general grounds. The one, that the former decree is not evidence against the defendánt, and the other, that Barnard is not a party to this suit, and that he ought to be a party. Upon both, the Court is of opinion with the defendant^

At law, a fraudulent donee of goods, is, after the death of the donor, liable to creditors for the value. He may be sued as executor, de son tort, and from the necessity of the case, he may be thus sued, wh^©*tteiS^isE%a8ghtfal executor or administrator, becau,^can render the goods assets in his hakds. It may bu'jfiflded, also, that a parol gift of slaves of the donor’s intestacy, is made ®y the act of i80o,pja advancement,is fraudulent, and creditors, if he die without leaving om^pxpperty sujifcient to discharge his debts., and, that in resp&éfof them, the donee would be deemed at law, executor in his own wrong, There seems to be no reason to doubt, that a fraudulent donee, is responsible in equity to an equitable creditor of the donor, who cannot otherwise obtain satisfaction, for this Court must support rights, which are the peculiar creatures or subjects of the jurisdiction of equity. But it does so according to its own course. At law, an executor, in his own wrong, is sued as if he were executor, and may, therefore, be sued separately or jointly, with the rightful executor. But he cannot be sued jointly with an administrator, because the law knows not of an administrator by wrong, nor of any mode of showing an administration, but by the grant of letters by the proper legal authority. So, in equity, an administration can be shown only in the same way, and a liability as executor, can be created only by charging a will, and the appointment of the executor, and his undertaking the burden of executing *104the will. In the case of such fraudulent gift, therefore, the rightful representative must be before the Court, upon genera-l principle, that all persons concerned in interest must be parties in this Court, and the donee may also be made a party, and is chargeable as having a fund which ought in equity to pay the debt, and is followed by equity in his hands. This Court does not know of an executor _ , _ , . , . de son tort, tor the purpose ot a remedy against him as sucjj. But if it did; neither at law, nor in equity, can the 7 , J \ debt of the deceased debtor be proved against him by a judgment against the rightful representative merely, There is no privity between them. 4-t Jaw, where the su*t is against the executor de son tort, he is supposed to be the executor, and it is incongruous to charge him upon the acknowledgment of, or proceedings against another, as being the person invested with the character given in the record to the defendant. It is equally so in this Court. The demand is presented here against the executor, and he is liable in the first instance, if he have assets. The donee may be made a party, for the purpose of making him liable in succession. But each of those parties has a right, and in such a proceeding, the opportunity, of contesting the debt, and it is manifestly just, that each of them should have both the right, and the opportunity. There is no precedent of such a decree as that framed by the parties for themselves in this case. The jurisdiction here is pri- . d 1 manly in personam, and if an executor hath not assets, the Court does not decree for the creditor, but dismisses the . bill., If the executor have assets, the decree is in respect possession of them, that he personally pay the debt in the first instance. But if he have not assets, he is in no degree liable to the plaintiff, is not his debtor, and the bill must be dismissed. If the plaintiffs demand arise upon an account or trust between him and the testator, that account 1X1 ay ta^en> and the report upon it confirmed ; but if the plaintiff will not proceed to take the account of the execu- ^or’s administration so as to fix him with assets, or if he proceed to take the account, and it is found thereon, that ^*as no assets, the plaintiff cannot stand in the Court, but the defendant is entitled to a decree dismissing the *105bill. It is argued that the statutes' giying the remedies at law against heirs, and on refunding bonds, have created a new rule at law, which equity will follow ; by no means. Equity^before gave relief against legatees, in case of the insolvency of the executor, or against heirs, upon a failure of the personal estate, on such debts as the heir was liable for; and that relief was adequate, upon a bill against all those parties. The statutes may have the effect of rendering the legatees liable in equity, upon the ground of the refunding bonds, and the duty of the executor to deliver over the estate, withput an insolvency of the executor, and as if he were insolvent. But as to the modé of proceeding, or the frame of the decree, the rule at law, introduced by the statute, ought not, and cannot affect the rule of this Court. Doubtless, upon discovering the insolvency of the executor, or that there are no personal assets, the plaintiff, in a suit against the executor alone, may by an amendment to his bill, or by supplemental bill, bring in the legatees or the heir, but when they come in; the plaintiff’s demand is open to be contested by them, and must be proved as ah origine against them. But if the plaintiff will bring on his bill to a hearing against the- executor, and have it dismissed as against him, although it be dismissed upon the ground that he has no personal assets, he can never afterwards found upon' that decree against himself, a proceeding to charge other persons separately, and by a distinct suit, with a demand claimed in the former suit. The decree in the case before us, was no doubt drawn up in reference to the proceedings at law,.and the parties hoped to sustain it by an analogy to the legal liabilities. But even at law, the executor, as a necessary party, is kept in Court, until the heir or legatee discharge him by a plea which admits his insolvency or full administration. Here no process was sued against Barnard in this bill, which cannot be connected with the former one, as the scire facias is with the judgment on which it is issued. But the decisive thing here is, that the decree in: the shit against Barnard, is in effect, and substantially, notwithstanding its formal phraseology, a decree to dismiss, and dismissing that bill at the plaintiff’s cost. Besides, there is a marked *106difference between the case of an heir or legatee, and that of a donee. The two former receive their estates after the death of the debtor and as a part of his estate. They are liable to creditors, although the executor receive sufficient assets, provided he is insolvent, or the creditor should otherwise be prevented from getting satisfaction from him. But a donee does not claim the goods as a part of the deceased debtor’s effects. He is liable in respect of the fraud only, and if the donor left sufficient estate, either real or personal, to pay all his debts, there was no fraud, but the goods passed to the donee, not only against the donor and his heir, or executor, but also against the donor’s creditors. The donee, therefore, must have the right of contesting the debt, and is not confined to the allegation, that the judgment or decree was perfraudem, and also the right of showing assets descended to the heir, or come to the executor. Until they are exhausted, the donee is not chargeable, and those persons are necessary parties to an account of those assets. Besides, the executor may get assets in future, out of which the donee should be made whole, for what he would have now to pay, and that he may have direct relief therefor, the executor should be a party to, and concluded by the decree against the donee.

*104ACourtof Equity does not charge a person as executor de ontyTn’r”1 spect of sionofthe fund.

The juris-Courtof Equity be-mg primarily in par-sonam, if an executor has assets, .establishes .the debt, payment^ by him, has fully edThe bill" is dismis-deeree1^-3 certaining andestab-lishing that *105the exfecu-tered, is in one of dis-mission,

*106It is said that the bill is sustainable upon the common equity, on which the Court assists judgment creditors against funds of the debtor in the hands of another. But this plaintiff has been already shown not to be a judgment creditor, or what is equivalent thereto, a creditor by decree of this Court. The decree gave him no relief. It professed to declare one fact in his favour, that he was a creditor of the intestate; but upon his own admission, states on the face of it, that the only defendant to his suit, was not liable to pay that debt; the bill was dismissed against that defendant,, and the plaintiff allowed to have satisfaction out of the assets of the intestate iftherebe any; that is, that the plaintiff might sue any body else, and get his money if he could. But in cases to which the principle of equity alluded to, applies, the debtor must be a party, as well as the possessor of the fund. In such cases, too, the justice of the debt, is not an inquiry for such possessor, the fund is not *107his, but the debtor’s, and he has no' interest in the question. If the possessor claim the effects under a conveyance alleged to be fraudulent, then the existence of the debt is to be proved, as in other cases in -which the question of fraud arises. The plaintiff must show himself a creditor by judgment or decree, eñtitled to take advantage of the statute, 13 Eliz., but is not bound to re-prove the debt as to its origin or amount, unless the possessor allege and show prima facie, that the judgment itself was a fraudulent contrivance to defeat a previous gift. But, as in the case before us, there was no decree which could even affect an heir or legatee; and, if there had been, as this defendant does not stand in privity with the party to that suit, what was done in that suit, does not prove the debt against any person, (unless possibly Barnard himself,) and is not evidence to any purpose against this defendant.

The-plaintiff might have moved before the hearing to bring in Barnard, and thereupon to take an account of the assets ; and it is not usual to dismiss a bill, for the want of parties, in the first instance. If that were the sole ground for reversing the decree, the cause would, upon the reversal, be ordered back, with liberty for the plaintiff to move such proceedings. But the plaintiff brought his cause to hearing, without any proof whatever of his demand, as against this defendant; and without any allegation in his bill, on which he could have offered such proof, the bill relying specifically on the decree as conclusive. He has, therefore, failed to establish any debt of the intestate, Dennis Dozier, and for that reason, the bill ought to have been dismissed on the hearing. For the same reason, the decree must be reversed, and this Court, proceeding to give such decree as the Court of Equity ought to have made, must dismiss the bill, with costs in both Courts to be paid by the plaintiff.

PeR Curiam. Decree reversed.