#### Robert Godley *v.*Samuel Taylor & Frederick Haddock, *Ex'r. of*William Haddock.

Executors having a power to sell lands of their testator are personally bound by a covenant, that they “ executors, &c. do forever warrant and defend, &c.”

Where an action was brought upon a covenant of quiet enjoyment, made by a decedent, and the eviction took place more than seven years after his death, it was held, firms, Judge, *dissentiente,*that the action was not barred by the act of 1715, *(Rev. c.*10, a. 7,) requiring claims to be preferred within seven years after the death of a decedent

This was an action for the breach of a covenant of quiet enjoyment, tried before his Honor Judge Norwood, at Pitt, on the last spring circuit. The question made in the cause arose upon the pleas of the general issue, pleaded by both defendants, and the act of. 1715, *(Rev. eh.*10, *sec.*7,) *“*concerning proving wills and granting “ letters of administration, and to prevent fraud in the *“*management of intestates’ estates,” pleaded by the defendant *Haddock,*and upon these pleas a verdict was taken subject to the opinion of the court, upon the following *case:*— James *Taylor*by his will appointed , the defendant *Taylor,*and the testator ®f the defendant *Had**179*dock,*executors, and authoi’ized them to sell his land. They conveyed the land to the plaintiff by deed, in which they were stated to he *“*executors of *James Taylor,”*and in which they “ executors to *James Taylor,*in con-*{i*sidoration, &c. do give, grant, &c. the aforesaid bar-1 gained premises, together with, &c. and do by these *■“*presents forever warrant and defend the aforesaid land *4‘*and premises to the said *Robert Godley,*his heirs, &c.” The deed was dated September l?'th, 1814. The plaintiff took possession under it, and was evicted by paramount title, on the 1st of June, 1828. *William Haddock*•died in December 1820, and the defendant, *Frederick Haddock,*proved his will in September following, and this suit was commenced in February, 1829. Upon these facts his Honor being of opinion for the plaintiff, as to the plea of the defendant *Haddock,*but thinking that neither the defendant Taylor, nor the testator of the defendant *Iladdodi,*were personally bound by the covenant, ■set the verdict aside, and entered a nonsuit, and the plaintiff appealed.

*Pottsv. Lazarus, (?Luy>iiep.*83,) hAIIj j.

*Gaston,*for the plaintiff.

*Hogg, contra.*

Haeii, Judge.

Where an agent wishes to be excused from obligations or covenants into which he enters, he should affix the name of his principal to the deed. *(Wilkes*v. *Back.*2 *East*142). When he does not do so, but only signs his own name as agent, he is personally answerable. For in such case he undertakes for his principal. *(Appleton*v. *Binks,*5 *East*148). He undertake^ as agent, or as surety for his principal, that if the latter will not perform the contract, he will answer for him, in the manner stipulated.

The case of *Potts*v. *Lazarus*(2 *Law Rep.*83) seems to have been decided in part upon the ground, that pub-lie and private agents were stibjectcd to the same liability. Of late however, their obligations are considered to be very different; the ih*st standing upon the principles of policy; the latter left to meet the contract» as the law of the case shall decide.

*180Ni the present case, it is true, the defendants could not ^iave their principal’s name ; but as oilier agents, they could and did sign as agents or as executors ; in whiCh case the rule is equally strong., that they shall be bound as agents to the fulfilment of any contract into which they enter, if this should not be considered to be the case, such contracts or covenants would be mere nul-lities. For the covenantees could have no remedy upon the covenants against *the testator.*

This subject is so fully and satisfactorily examined in *Sumner*v. *Williams*(8 *Mass. Rep.*162) that the best service I can render the subject will be to refer to it.

It was also insisted for the defendant, Haddock, that *he*was protected from the recovery sought by the plaintiff, by the lapse of seven years after the death of his testator, before suit brought against him by the plaintiff; altlio’ the fact is, that the cause of action had not accrued, until within seven years next before the action was brought. The act of *1715 (Rev. c.*10, .§. 7) the protection of which is claimed in this case, is in the following words: *u*That creditors of any person deceased shall make their claim within seven years after the death of such debtor *;*otherwise such creditor shall be forever haired.” To give operation to the act, there must not only be a creditor, but there must be a claim. What is a claim- ? It is defined to be a challenge by a man of the property or ownership of a thing, which he has not in possession, but which is wrongfully detained from him. *(Plow. 359.)*It is either verbal, or it is by an action brought. If relates to lands, or goods and chattels. *(Shep. M.*Claim. *Jacob’s Latv Diet.*Claim.) *Johnson*defines a claim to be “ a demand of any thing due; a title *to*any privilege or possession in the hands of another *;*a demand of any thing that is in the possession of another.” When the legislature say, that creditors shall make their claim within seven years after the death of the testator, they must have had in contemplation such a creditor as had a *claim to*make *;*such a claim as might be enforced *in preesentu.*They did not mean a claim that might arise *in futuro*which could not be enforced until it did arise or accrue-, *181By an equitable construction of-the act, he must make bis claim within seven years after it accrues. To require him to make it before, would be to require of him an impossibility.

■fhe statute of limitation never begins to ranun-a cfmse of ac' üon has accrued, as well as "’’í*1 th.e?’e IS.a tence. *Per*IIai.i, J.

The case úf *Jones*v. *Brodie, ('\¥u,r'*a94i *McLeilan*v. ecl “ *Junes*v-Í¿Tby Haix^j7"

The statutes of limitation generally begin to run after the cause of action has accrued. Chief-Justice *Abbott*, says in *Murray v. The*E. *I Co. (7 Eng. C. L.*66,) that *“*it cannot bo said, that a cause of action exists, -unless . , . therc be also a person m existence, capable of suing.” 'Would not bis Lordship have been equally orthodox, if he had also said, although there is a creditor in exist-once, yet if there is no *clai'in,*or cause of action, the statute of limitation will not run. The Chief-Justice further observed in that case, that the several statutes of limitation, being all *in pari materia,*ought to receive a uniform construction, notwithstanding any slight variations in phraseology — the object and intention being the same.

So in tlio case *of Jones*v. Brodie, (3 *Mur.*594.) it was v *J*held, in regard to the statute of limitation now under consideration, that if there was no creditor who could sue at the death of the debtor, the statute did not begin to run. So I think, altho’ there is a creditor, hut no claim that can he enforced, the statute will not rim until there is such a claim. From the account which is given of *McLettan*v. *Hill,*(Conf. *Rep.*479) in Jones v. *Brodie,*I think it was rightly decided. Butintheprinted report of it, no notice is taken of the fact, that the debtor died before the creditor. Nor does the judgment of the court seem to be baaed upon that circumstance. And so far as the reasoning in that case is adverse to the opinion delivered in *Jones*v. *Brodie,*I do not subscribe to it. One reason given for the; opinion of the court in that case was, that executors and administrators after seven years were obliged to pay over whatever assets remained In their hands to the churchwardens, or to the treasurer of the state, for the benefit of creditors. My answer is, that it ought to appear, that it was paid over. If it was not, it was answerable to creditors. If it was paid over, it should not have prevented creditors from obtaining judgments ; but it might have been a good reason for not fixing the executor with assets.

*182An executor who has paid over university is not subjected to the tor, not barred ky the act of issue of fully administered must be found for him, and the creditor gainsf the^UnT versity.

Certainly much consideration is due to the sanctity of contracts, provided they are within the pale of the law» A man may legally contract, that he and his executors w|h in(iemnify a purchaser in case of *eviction;*which may not happen until many years after his death. He' may contract that a thing may be done after his death. He may give a bond payable in ten years, and die the next day.

The legislatures of the states are enjoined from passing any law impairing the obligation of contracts; and the alarm was taken in this state, when the legislature passed a law postponing the time for the fulfilment of a contract. *(Jones*v. Crittenden, 1 *Law*Rep. 385.) HoW cautious then should eburts be,.in giving judgment upon the construction of an act of Assembly, which will cut them off from fulfilment altogether. I see nothing in policy, which should lead to such a result. For if after seven years, the executors or administrators have paid over the assets to the University, which is now author-lzei*receive them, instead oí the church-wardens and treasurer of the state, they are not to be charged with assets. But the creditor is entitled to a judgment, which will be his passport to a remedy against the tras-tees of the University.

'T'}ie statutes of limitation generally give a specified _ ° , , „ time to sue m. Creditors may avail themselves of it ^ ^ley d° they are barred. In tiie present case no time is given to sue in ; and the contract becomes a mere nullity. The obligation of it is totally impaired.

Rueetn, Judge,

*disseniicnte.*— I retain the opinion on the act of 1715, which I delivered in *Rayner*v. *Watford. (ante*2 *vol*338;) and think the action against the executor of *Haddock*is barred. My reasons are so fully stated there, that I need not now go into the question at length.. I will only observe, that the only term at which the statute makes the time begin to run is *the death*of the debtor. We have no power, I think, to interpolate the words, *“*if the creditor’s action had then accrued,” or " seven years from the time the action shall have accru*183ed, if it shall arise after such debtor’s death” 5 which is the reading the senior members of the court and the case of *Jones*v. *Brodie*give, as being within its equity. Besides the objection of thus making additions to the law, I hayo others to this interpretation. The act has no saving in lavor of infants or others. Now an infant lunatic or *feme covert*is at least as much an object of protection, as an imprudent creditor who trusts another seven years. This want of any saving shows it was intended to make the time a *conclusive*bar in *all*cases. But if the time is to run only against those claimants, who could claim, that is, bring suit, it will expose executors to ruin, by subjecting them to recoveries, after they have delivered over all the assets. For tiiero is nothing in the act to justify the payment of legatees, or to the wardens, until creditors arc satisfied ; since only such money, as may remain after answering those demands, is to be thus paid ; and there is no provision for refunding bonds. Here again it is said, that an equitable interpretation is to be made in favor of the executor, reciprocal to that already made in favor of the creditor; and that the executor may upon the plea of fully administered, show that the assets are not in his hands, but those of the legatees or trustees of the University ; hut that if the executor yet retains them, it is just lie should pay the creditor. I answer first, that there is nothing in the statute authorizing the inquiry into the state of the assets ; secondly, that the act is a protection to the legatee, as well as the executor *;*thirdly, that it is also a protection to the heir, as well as the two formerj and this construction repeals it as to legatees and heirs, because they can deliver over the assets to nobody, but must have them in their hands, unless exhausted by other creditors. Suppose a simple contract debt, or one in which the heir is not specially bound, to fall due eight years after the death of the testator, and that the executor is sued, and the plea of fully administered is found for him upon this ground, that he has delivered over the estate at the end of seven years to the wardens; and then a *scirefacias*to issue upon the judgment for the debt against the heir. Shall he be bound *184before the personal estate is exhausted by creditors ? Yet how is the creditor to get at the personal estate ? He cannot proceed at law against the legatees or wardens. The heir is liable upon such a finding, by the express words of the act of 1784, and in no other case but in that of the insolvency of the executor, according to the act of 1807. Yet he must pay the debt in this case, without the insolvency of the executor, or the creditor’s recovery will he fruitless ; because there is no method of subjecting the personal assets in the hands which now hold them, that is to say the legatees or wardens.

For these reasons, my former opinion has been confirmed by reflectionand I have felt myself bound to express it. But in future, I shall consider myself under an equal obligation to hold for law, what I understand, in confe■rence with my elder brethren, to be their opinions. That is, that if the debt be due at the death of the debtor, claim must be made within seven years from the death, otherwise both the heir and executor are discharged: and that if the action arise after the death of the debtor, suit must be brought within seven years from the time the action accrued, or the heir and executor will in that case also he discharged : and if the suit be brought against the executor within seven years after it arose, but after the expiration of the seven years from the death of the debtor, and the executor hath, at the time of the suit brought, not paid over the assets, he shall answer the demand; but if be hath paid them over, he shall have the plea of fully administered found for him. But how it will be with the heir in this last case, is yet to be determined ; though I take it, he is to be bound, in case there be no personal estate in any body’s hands, provided he be sued by *sci.fa.*within seven years from the falling due of the demand, when that happens after the death of his ancestor; if he be sued within that time in debt on bond, in which he is named, whether there be personal assets or not.

Per Curiam. — Judgment aeeirmeb.