Mitchell v. Williamson

Le Grand, C. J., delivered the opinion of this court. This is an action of debt brought by the appellees as executors of David Williamson, Sen’r, ag-ainst Elizabeth A. Mitchell, executrix of James D. Mitchell, and continued after her death against the appellant, Henry S. Mitchell, as administrator de bonis non cum testamento annexo. The cause of action was a penal bond, dated 17th of August 1833, conditioned for the payment by David Williamson, Jr. — the principal obligor — at any time within two years from the date thereof, to George, Juliana and Adolphus Williamson, executors of David Williamson, Sen’r, of the sum of two thousand dollars Without interest. To the right of recovery of the plaintiffs- nine pleas- were interposed.

To the 2nd, 3rd, 5th, 7th, 8tb and 9th of which, ²¹⁶ there were demurrers; and on the 4th and 6th issue was taken. The 2nd and 8th pleas have been abandoned. The questions now before us are presented by the demurrers to the others, and we concur with the court below in its ruling in regard to each and all of them except the ninth; The 3rd plea is substantially as follows: It avers that the bond was executed by Mitchell as surety for Williamson, to secure the payment of a judgment obtained against him in Harford county court;-that Adolphus Williamson released all his interest in the judgment; and that David Williamson con- , veyed- to the plaintiffs all his interest in a large tract of land, lying in the State of Louisiana, for the purpose of securing the payment of the judgment; and also, that Juliana Williamson- one of the plaintiff’s, by her writing of release, sealed, &c., “did release all her interest and right in the debt due by the said David to-the said plaintiffs aforesaid So far as those portions of the plea which allude to the release of interest in the judgment are involved, we think it clear beyond all question, that they- cannot avail to defeat the recovery of the plaintiffs. This is an action on a bond conditioned for the payment of a certain and ascertained sum of money,, within a specified time, and it is not competent for the obligors, in this action, to go behind the bond for the purpose of showing what was its consideration.

The only reply that can be successfully made to it is, non est factum, payment or release. Any equitable considerations affecting the transactions out of which it originated,, must be availed of in a court of equity. In regard to that part of the plea which declares, that Juliana-Williamson released “all her interest and right in the debt due by the said David to the said plaintiffs aforesaid,” we remark, that it appears-to us-it must be understood as having, reference to- the history of the debt as given in the preceding, portions of the plea, and therefore, equally as applicable to the judgment as to the bond. There is no doubt that prior to the act of Assembly of 1843, ch. 304 — and that act does not affect this case — an executor might sell or raise money on the property of the deceased, or give a release for ²¹⁷ a debt due to the estate of his testator, nor where there was more than one executor, that any one of them could da the same; and, therefore, had the plea simply averred a release of the debt: that is, the debt sued on by Juliana Williamson, we should have held the plea as good in bar to the plaintiff’s right of action.

We do not, however, regard the plea as referring exclusively