Thomas v. Adams

APPEAL FROM CRAWFORD. A bill in chancery should not be dismissed upon motion for want of proper parties, but the necessary persons should be made parties by amendment. The practice to dismiss a bill is confined to cases where there is a want of equity upon the face of the bill, and it is manifest that no amendment can help it, or where there is a want of jurisdiction. A court of chancery will entertain jurisdiction of a bill filed by the equitable holder of judgments against the heirs and administrators of a deceased judgment debtor, to compel a discovery of the assets of the intestate, and to subject them to the payment of the judgments. If it should appear that there are several judgments, each of which was obtained against the intestate jointly with different parties, the co-defendants in all of these judgments should be made parties to the bill, In those cases where the intestate was a surety, the complainant should be required to exhaust his remedy against the principals first; but in cases where the intestate was the principal debtor, and his co-defendants were his sureties, the amount of the judgments should be made out of the estate in the hands of the heirs which came to them by descent or devise.

The record in this cause shows the following facts: The president, directors and company of the Bank of Illinois recovered judgments in the Lawrence Circuit Court, against Josiah R. Wynn and others, as follows : At September term, 1843, against Archibald George, Jackson B. Shaw, and Josiah Wynn, for $246.75, and costs, on which execution was issued on the 11th of September, 1843, on which nothing was. made. On the 10th of June, 1848, a second execution was issued, on which $208.51 was made on the 25th of October, 1848. At September term, 1842, against Josiah R. Wynn, Archibald George, and Griffin Garland, for $132 and costs, on which execution was issued on the 11th of September, 1843, and nothing made. On the 10th of July, 1848, second execution issued, which was levied on several lots of land, and returned without any" sale. At September term, 1842, against Jacob Jeffs, Josiah Rr Wynn, Griffin Garland, and Samuel V. Allison, for $129.60, and costs. Execution issued 11th of September, 1843, and nothing made; second execution issued 13th of February, 1852 ; levied on real estate; not sold for want of bidders. At September term, 1846, against Isaac Allison, Enos Organ, and Josiah R. Wynn, for $75.31, and costs. Execution issued 5th- of February, 1847, on which $35 was paid by Enos Organ. On the 10th of April, 1845, the president, directors, and company of the Bank of Illinois, acting under the provisions of the “ Act supplemental to an act to reduce the public debt $1,000,000, and put the Bank of Illinois into liquidation,” (Acts of 1844-45, p. 246,) assigned, transferred and conveyed to Albert G. Caldwell and E. G. Ryan, as assignees, all the personal estate, rights and credits, notes, bonds, judgments and debts of every kind due to said bank at Shawneetown, and to the branch of said bank at Lawrenceville, to have and to hold, to them and to their survivors, etc.; the judgments were obtained for money payable at the branch of said bank at Lawrenceville. That, acting under a decree of the Circuit Court of the United States, for the State and District of Illinois, the assignees of the bank assigned and conveyed to the complainant as trustee, all and singular the real and personal property, and all judgments, mortgages, bonds, notes and bills, on which anything might remain due to said bank or assignees at the places aforesaid. Subsequent to the date of the judgments aforesaid, the said Josiah E. Wynn departed this life intestate, leaving him surviving, as heirs, William Wynn, Laura Wynn, John Wynn, Homer Wynn, and Monroe Wynn. Letters of administration were granted on his estate by the court having jurisdiction in Crawford- county, to John B. Adams and William C. Adamsi who have administered the personal estate, and allege that they have no assets with which to pay the judgments aforesaid. That said Wynn died seized of real estate sufficient to pay the judgments aforesaid, situated in Crawford county, which has passed to the said heirs, subject to the right of their mother to be endowed of one-tliird thereof for life. The location and description of said real estate is alleged to be unknown. Hiram Johnson, the guardian for said heirs, has the title papers. The administrators and guardian, it is alleged, although often requested, have refused to pay said judgments. The complainant, having the equitable title only to the judgments aforesaid, and having no right to sue in a court of law, comes into this court and asks that defendants may be required to furnish a descriptive list of the real estate of the intestate; and that a decree be entered against the administrators and heirs for the amount due on the judgments aforesaid, payable out of assets in the hands of the administrators, if sufficient there be; if not, then out of the real estate passed to the heirs, or rents or profits thereof, in the hands of the guardian, etc. At the May term, 1862, of the court, the infant defendants, by their guardian, entered a motion to dismiss the hill for want of equity, and also filed an answer denying the allegations of the bill—the filing of which answer, by agreement, not to operate as a waiver of the motion to dismiss. And the court, upon consideration of the cause, in connection with the motion aforesaid, decided pro forma that complainant was not entitled to a decree, and dismissed the bill with costs. The parties then agreed, in order to avoid costs of making copies, etc., that the facts stated in the bill were proven by the exhibits filed and referred to, and that the case might be taken to the Supreme Court by appeal. The errors assigned are— 1. The court erred in deciding that complainant had no right to a decree for the amount due on the judgments of the Lawrence Circuit Court, and in dismissing the bill. 2, The court erred in not rendering a decree in favor of the complainant, according to the prayer of the bill.