Stem v. Cox

Tuck, J., delivered the opinion of this court-. William Swann died seized of land in Charles county, and left children, of whom the appellant, Mrs. Stem, was one. Such proceedings were had in the county court, under the Act of 1820, eh. 191, for the division of his estate, that James Swann, the eldest son, elected to take the land at the valuation of the commissioners, and on the 27th of March 1823, gave bond to the State for the payment to the other heirs of their proportions, with W. Latimer and J. H. Hanson as liis sureties. He died leaving two children, George and James, both of whom are dead; and George, having by the death of his brother James succeeded to his interest in the land, conveyed it to Hugh Cox, on the 15th of December 1842, who conveyed it to Wm.

Holmes, on the 18th of September 1843. Cox and Holmes are also dead. The appellees, S. and W. Cox, are the sons and administrators of the former, and Alexander Holmes is the son and executor of the latter. Latimer, one of the sureties, is dead, and Mrs. Marshall is his executrix.

The present bill was filed by Stem and wife, in behalf of themselves and the other children of Wm. Swann, to enforce payment of the amounts severally due them on the bond of their brother, James. Hanson, the other surety, was not summoned, though made a defendant by the bill; so that the parties now before the court, as defendants, are the administrators of Cox, the executrix of Latimer, and the executor of Holmes, but his heirs or devisees are not parties. The administrators of Hugh Cox demurred to the bill, upon the grounds that it does not disclose a case which would entitle the complainants to relief against them, and because the claim is barred by limitations and lapse of time.

The executrix of Latimer likewise demurred, upon the grounds taken in the demurrer of Cox’s administrators, and upon the further ground, that the remedy of the complainants as against her was (if any existed) purely a legal one, and not, there» ⁵³⁸ fore, cognizable in a court of equity; and the special judge below, by his decree of the 30th of June 1858, adjudged in favor of these appellees, upon both demurrers. The executor of Win. Holmes, the other appellee, filed his answer to the bill, alleging payment; also, denying his liability, and pleading in bar of the complainants’ alleged claim the statute of limitations and lapse of time; and upon final hearing, on the 31st of July 1858, the bill