#### Richard Singleton *v.*John J. Moore et al.

The testator, *Matthew Singleton,*being indebted by bond, dated 26 *November,*1783, to one *Charles Pinckney,*in the sum of £1000, afterwards, by his will, devised the whole of his estate to be equally divided between his son, *John Singleton,*and his daughter, the wife of *Isham*Moore, or the said *Isham Moore,*and constituted his said son, *John Singleton,*and his son-in-law, the said *Isham Moore,*his executors. The executors divided the estate between them, and *that*being amply sufficient, agreed that each should pay a *moiety*of the debts. *Isham Moore*died in 1803, the debt to *Pinckney*remaining unpaid; an action was brought against *John Singleton,*surviving executor of *Matthew Singleton,*in 1806, for the debt to Pinck-ney, and a judgment recovered against him; *John*Singleton paid more than a *moiety*of the debt in his lifetime, and died in 1820, having made a will and appointed complainant his executor. In June, 1826, an action was brought by the administrator of Pinckney, on the former judgment, against the complainant as executor of John Singleton, and a second judgment recovered, in 1830, for the principal sum remaining due, with interest, which the complainant had paid. *Isham Moore,*before his death, made a will disposing of his estate among his children and legatees, which estate was settled and distributed according to the will, in 1804, without providing for the payment of *Isham Moore’s*moiety of the debt of *Matthew*Singleton to Pinckney. Held, that complainant was entitled, notwithstanding the lapse of time and the distribution of the estate of *Isham Moore,*to call upon the devisees and legatees of his estate, to pay *their*moiety of the debt to Pinckney, which complainant and his testator, *John*Singleton, had paid over and above their own share of the debt.

In general, an equity may be barred by the lapse of twenty years; but the bar of the statute of limitations will not be applied in' equity, to a cause of action of a purely *equitable*nature.

The true cause of action in this case, arose, it seems, upon the payment of the money on the *last*judgment recovered against the complainant, by the administrator of Pinckney, and that having been within four years before the filing of the bill, the statute of limitations had not run out.

It is well settled, that in the case of an executors insolvency, a creditor has a right to follow the assets of the estate in the hands of the legatees ; so if a deficiency is created, by debts which did not appear until after payment of a legacy, the legatee is liable to refund.

Though an executor who has notice of a debt, and pays over the estáte to the legatees, without paying the debt, or providing for it, is liable to the creditor, when solvent, as having paid over the estate in his own wrong; *111yet where neither the creditor or executor is in default, there is the same equity to follow the assets, as in the case of the executors insolvency.

*Before HARPER, Chancellor, at Charleston, Jan’y, Term,*1838.

This case came up on an appeal from the decree of Chancellor Harper, pronounced at Charleston, January term, 1838. In order to a more full understanding of the case, the bill of complainant and the answers of John J. Moore one of the defendants, are given at full length. The bill was as follows:

“ Humbly complaining, your orator, Richard Singleton, executor of the last will and testament of John Singleton, sheweth to your honors: That Matthew Singleton, late of St. Mark’s Parish, in the State aforesaid, planter, being possessed of a considerable estate, real and personal, by his last will and testament gave and devised all his estate to his son and daughter, John Singleton and Ann Moore, wife of Isham Moore, or to his said son and son-in-law, to be equally divided between them, and appointed them his executors; and some time in the year ] 784, departed this life, leaving the said will in full force ; and the said John Singleton and Isham Moore, proved the said will in the county court of Clarendon county; as in and by the said will, if the same were in your orators power to produce, would more fully appear. But the said will being deposited in the registry of the said county court, was afterwards removed, on the abolition of the said court, to the clerk’s office of Sumter district, and was there destroyed with all the records of the court, by the burning of the clerk’s office, in the year 1805; and your orator has no copy of the said will, and does not know whether there is any copy in existence; though the contents, as your orator hopes to prove, are well known to the defendants hereinafter named, by the information of the family. That the said John Singleton and Isham Moore, divided the estate of the said Matthew Singleton between them ; and as the same far exceeded the amount of his debts, they agreed that each should pay his equal part or moiety of the said debts. That the testator, at the time of his death, was indebted to Charles Pinckney, on bond, bearing date the 26th day of November, 1783, conditioned for the payment of £1000, on the first day of May following, on which a *112small sum only had been paid by the testator in his life time, leaving the whole of the principal unsatisfied: and also to divers other persons in considerable sums. That during the life time of the said Isham Moore, the said John Singleton and Isham Moore paid all the testator’s debts, except the said bond, on which partial payments were made from time to time, as well with assets of the testator, which were paid on joint account, as with their proper funds on their respective accounts. That out of his own money, the said John Singleton paid, on the 31st day of January, 1795, £200 ; and the said Isham Moore, on the 31st day of March, in the same year, paid *on his account £50 on the said bond.*

That the said Isham Moore, being possessed of a very considerable estate, some time in the year 1804, departed this life, leaving his last will and testament, wherein and whereby he devised real and personal estate in various bequests to his children, Richard Moore, Matthew S. Moore, Tabitha Polk, wife of James Polk, Anne J. M. Butler, wife of Anthony Butler, Alice Moore, Sarah Moore and John J. Moore; and gave all the rest and residue of his estate to be divided between them, with a limitation of the whole to the survivors,-in case any one of them should die without lawful issue, surviving the age of twenty-one years. Of which will he appointed his sons, the said Richard Moore and Matthew *S. Moore,*executors; who proved the same, and undertook the burthen and execution thereof. That Alice Moore, one of the daughters of the testator, married with Merry Bracy, now of the State of Mississippi, and has lately died, leaving issue, and leaving the said Bra-cy surviving her. That Sarah Moore, another of testator’s daughters, died without issue, whereby her interest in the real and personal estate devised to her, ceased, and vested in her surviving brothers. That the said Richard Moore and Matthew S. Moore, had notice of the bond of Matthew Singleton to Charles Pinckney, and knew that the same was to be settled between them and the said John Singleton. But without paying any part of the said bond, they assented to the legacies and divided the estate of their testator; but at what time or in what way, or whether they took any obligation or security- to refund, your orator does not know. Your orator further shows to your honors, that after *the*death *oí*
      *113the said Isham Moore, the bond before mentioned, of Matthew Singleton, was sued at law in the name of the obligee ; that long before that time, the same had been transferred to some other person ; and in the court of common pleas for Charleston district, at June term, in the year 1806, judgment was had against the said John Singleton, as surviving executor of Matthew Singleton, for $8,332 31, being the amount then due thereon. That on the 19th day of August following, the said John Singleton paid the sum of £900, or $3,923 10, (three thousand nine hundred and twenty-three 10-100 dollars,) on account of said bond, to the plaintiff’s attorneys: which same, with the sum of £200 before paid by him, as above mentioned, exceeded the amount of his half of the said debt, by the sum of £72,10s., or $310 92; and having satisfied his part of the said bond, he, the said John Singleton, waited for the representatives of Isham Moore to discharge their part. But the right to the money due on said bond was then in dispute, the same having been repeatedly transferred from one hand to another; and even the attorneys in whose possession the said bond was, were in doubt respecting the ownership of it; and no call was made on the said John Singleton for many years ; and as the executors of Isham Moore were willing to let the debt remain, he declined to volunteer a payment for the purpose of compelling them to a settlement against their convenience. And in fact, the said John Singleton. did not understand the great difference at law which his surviving Isham Moore, and being a party defendant to the judgment aforesaid, had made in his situation. That in the year 1820, the said John Singleton departed this life, leaving your orator one of his executors, who proved his last will and testament alone.

Your orator further shows to your honors, that about the 5th day of September, which was in the year 1821, Richard Moore rendered your orator a statement of unsettled demands between the said Isham Moore and your orator’s father, growing out of debts of Matthew Singleton, paid by the said Isham Moore, as well as out of transactions between them in their own right, and requested your orator to come to an account and settlement between the said estates. That to this demand of a settlement, your orator assented, and preparations were made for that purpose, *114which were several years in progress. That in the meantime, to wit, about the 18th day of February, 1822, an action in the name of Charles Pinckney, was commenced against your orator, on the judgment aforesaid; and the said action having abated by the death of Mr. Pinckney, was renewed in the name of David Ramsay, his executor; and having again abated by his death, was renewed in the name of Thomas O. Elliott, administrator with the will annexed of the said Charles Pinckney. That of the proceedings at law, the said Richard Moore and Matthew S. Moore, had notice; and after a long time had been taken to prepare for a final settlement between the estates of Isham Moore and John Singleton, a day was fixed for the purpose, and according to appointment, your orator met the said Richard Moore and Matthew S. Moore in Manchester: and all the accounts, books, and vouchers of the parties were examined: and an account stated by Jeptha Dyson, on the part of your orator, and John Mayrant, on the part of the said Richard Moore and Matthew S. Moore. That upon this accounting, it was found that your orator’s father had over-paid his part of the bond, as herein before mentioned; and that upon an adjustment of all demands, arising from debts paid, and monies received, on account of the estate of Matthew Singleton, by the' said Isham Moore and John Singleton respectively, as well as from *other*sources, there was due by the estate of the said Isham Moore, to the estate of John Singleton, the sum of $1,608 40; and that the residue of the bond heretofore mentioned, was payable by said Isham Moore’s representatives. That the said Richard Moore and Matthew S. Moore, being satisfied with the said account, gave their bond to your orator for the said sum of $1,608 40, and signed the following acknowledgment, to wit: “Received, June 19th, 1826, of Richard Singleton, executor of John Singleton, deceased, one dollar, in full of all demands against the said estate; it being understood that the amount due on the bond to Pinckney, and the payments thereon, is left open for further settlement.” That the said Richard Moore expressed ar hope or belief, that evidence of further payments by his father might be found, and therefore no final conclusion was made as to that part of Matthew Singleton’s bond, which appeared to be unsatisfied; but no such evidence was *115produced, nor, as your orator believes, is there any ground to believe that any other payments were in fact made by the said Isham Moore ; and a judgment was rendered against your orator at term, in the year , in the court of common pleas for Charleston district, for $4,492 51, with interest on $4,285 70, from the 19th day of August, in the year 1806.

That pending the said action at law, your orator filed a bill to enjoin *the*plaintiff from proceeding at law; and the plaintiff filed a bill against your orator and the representatives of Isham Moore, to compel payment of his debt, out of the assets of Matthew Singleton, or Isham Moore. But the said bills were afterwards, about February term, in the year 1833, dismissed' for want of equity: on the ground, that the plaintiff had either received his debt, or had plain and adequate remedy at law to recover the same from your orator; and your orator has, in fact, paid and satisfied the said judgment in full.

Your orator further shows to your honors, that pending the said action in the court of common pleas, Matthew S. Moore died, leaving a will, and the same was proved by John J. Moore ; and that Richard Moore afterwards died intestate, and administration of the estate was committed to the same John J. Moore.

That the said John J. Moore has in his hands assets of the said Matthew S. Moore and Richard Moore; and. is also in possession of real and personal estate, which Isham Moore took either as de-visee, legatee, or executor, under the will of Matthew Singleton; particularly a plantation called Cane Savannah Mills. And your orator believes, that the other representatives of Isham Moore, also have in their hands real and personal estate which belonged to Matthew Singleton, and was liable to his debts. And your orator insists that the said Isham Moore, being liable as executor, to account for the assets which came to his hands, and liable also as legatee, to refund for the payment of debts; his executors, the said Richard Moore and Matthew S. Moore, were bound to pay off the account which your orator has been compelled to pay, as herein before mentioned, on the bond of the said Matthew Singleton. ' And that the said John J. Moore should pay and refund the said sum to your orator out of the assets of the said Matthew S. *116Moore and Richard Moore; or that all the legatees of the said Isham Moore should refund for the payment of the said sum.

And your orator had well hoped, that the said John J. Moore, Thomas J. Polk, Sarah Polk, Merry Bracey, Anthony Butler, and Anne J. M. Butler, would refund to your orator the money which he has been compelled to pay to the relief of the estate of Isham Moore. But now, so it is, may it please your honors, that the said John J. Moore, Thomas J. Polk, Sarah Polk, Merry Bracey, Anthony Butler, and Anné J. M. Butler, combining and confederating with divers persons to your orator unknown, (whose names, when discovered, he prays may be inserted in this bill, with proper and apt words to charge them,) to wrong and injure your orator, refuse to come to any account, alleging various excuses for withholding remuneration from the estate of Isham Moore in their hands, which are all equally insufficient, or groundless in fact. In tender consideration whereof, and for as much as your orator is remediless at law, and can receive relief only from this honorable court, where matters of this sort are peculiarly cognizable, to the end, therefore, that the said John J. Moore, Thos. J. Polk, Sarah Polk, Merry Bracey, Anthony Butler and Anne J. M. Butler, may full, true, and perfect answer make to the premises, as fully as if the same were here again repeated and interrogated ; and not only according to their own knowledge, but according to their information and belief, and particularly, that the said John J. Moore may set forth whether he is in possession of the Cane Savannah Mills, devised to him by his father ? And of some other estate, real or personal, which belonged to Matthew Singleton ? And in whose hands, according to the best, of his belief and information, the real and personal estate which his father derived from the said Matthew Singleton is *1*And how and when the estate of Isham Moore was divided and distributed between his devisees and legatees ? And whether the said Richard Moore and Matthew S. Moore took any security from the legatees, to refund in case of debts afterwards appearing against the estate, and particularly the bond of Matthew Singleton to Charles Pinck-ney? And whether he does not know that the said Richard Moore and Matthew S. Moore, as executors of Isham Moore, *117gave your orator their bond, dated the 19th June, as hereinbefore mentioned, including in said sum of $1698 60, the sum of $310 92, which the said John Singleton had already paid over and above his moiety of the bond of Matthew Singleton to Charles Pinckney ? And that he should set forth and discover out of what funds the said bonds of Richard Moore and Matthew S. Moore was paid? And whether the same was paid by the said Richard Moore and Matthew S. Moore alone, or whether they, or either of them, received any contribution from the other legatees and devisees, of Isham Moore, for the payment of the same ? And by what means the said contribution was obtained *1*And the said defendants may either admit assets of Isham Moore in their hands to contribute to the payment of Isham Moore’s just part of the said debt of Matthew Singleton to Charles- Pinckney, or account for what they have severally received under the will of Isham Moore. And that the money which your orator has been compelled to pay, as executor of John Singleton, surviving executor of Matthew Singleton, may be refunded him; either out of the estates of Richard Moore and Matthew S. Moore, executors of Isham Moore, by whom the same ought to have been paid, or by a general contribution among the legatees of the said Isham Moore. And that your orator may receive, such other and further relief as the nature of the case may require, and to your honors may seem meet. May it please your honors to grant unto your orator a writ of subpmna, to be directed to the said John J. Moore, Thomas J. Polk, Sarah Polk, Merry Bracey, Anthony Butler and Anne J. M. Butler, commanding them, at a certain day and under a certain pain therein to be inserted, personally to be and appear in this honorable court, then and there to answer to the premises, and to stand to and abide by such order and decree in the premises, as to your honors may seem agreeable to equity and good conscience. And your orator .will ever pray, &c. &c. &c.”

The following order was entered in this case, at February Term, 1835:

“ It appearing to the satisfaction of the court, that Merry Bracey and Anthony Butler, two of the defendants, reside without the limits of this State: It is ordered, that they do appear and plead, *118answer or demur, to the bill filed in this case, on or before the first day of August next; and on failure to do so, this bill be taken *pro confesso,*as to them. Provided, that this order be published in the Columbia Telescope, weekly, for three months, in the mean time.”

The answer of John J. Moore to the complainant’s bill was as follows:

“ *The State of South-Carolina:*

The answer of John J. Moore, one of the children of Isham Moore, to the bill of complaint, Richard Singleton, executor of John Singleton. This defendant now, and all times hereafter, saving and reserving unto himself all benefit and advantage of exception which can, or may be had or taken to the many .errors, uncertainties and other imperfections in the said complainant’s said bill of complaint contained, for answer thereunto, or unto so much and such parts thereof as this defendant is advised, is or are material or necessary for him to make answer unto, this defendant, answering, saith: That he is wholly ignorant of the allegations in the bill relative to the pretended' will of' Matthew Singleton, and cannot admit or deny that, such a will ever existed, what were its provisions, who were the executors, or whether the same was ever proved or recorded, or whether his father, Isham Moore, ever qualified as executor, or acted as such, but requires that all the allegations be strictly proved, especially as he knows of no evidence that he was ever sued as executor, or the contrary; he has heard that suits against the estate appear to have been instituted against John Singleton. This defendant does not admit the equal division of the estate of the said Matthew Singleton ; and as more than half a century has elapsed since his death, he does not hope to find any very satisfactory evidence on the point. He has heard that the court house or clerk’s office of Sumter was burned in or about 1805, but that a will of Matthew Singleton was there, he does not know, and cannot admit. Neither does he admit that the contents of the will, if any, of Matthew Singleton, are known to him, although he has heard that his mother, as one of the children of Matthew Singleton, received a part of his estate, but he knows nothing so much in detail as to be equivalent to a copy of the will; he therefore requires the proof both of the existence and loss of *119said will, and its contents. This defendant does not know, and does not admit, that John Singleton and Isham Moore divided the estate of Matthew Singleton equally between them, or that they agreed that each should pay his equal part of the debts thereof. If any agreement was made, it ought to have been in writing, that the particulars might be known; and if made, it must have been made more than thirty years ago; and all stipulations then made, must, by lapse of time, be presumed to have been fulfilled. This defendant was not born, when the bond, alleged to be due to one Charles Pinckney, is stated to have been dated; and he does not know, and does not admit, that it was unpaid at the death of Matthew Singleton.' He does not know, and does not admit, that all the debts of the said Matthew were paid, except said bond ; and he has no paper or document proving the same ; and he does not know, and cannot admit, that Isham Moore made any payment on said bond. This defendant admits that Isham Moore died in 1804, and that his estate was partitioned and divided among his children about that time; and this defendant has continued to hold his said estate, so derived in his own right, for about thirty years, without any trust or condition, but absolutely; and he insists that he is not now in any manner bound for any contracts or liabilities of the former owner, or of the executors of his will. This defendant presumes, but does not know, that John Singleton was sued, as stated, if the record so states ; and as he did not then take any steps to claim a contribution, he also presumes he was satisfied of his own liability to pay the debt. This defendant is personally ignorant of the principal allegation of the bill, and cannot admit them. He-has had peaceable and undisputed possession of his estate for thirty years, without any claim or demand relative to the bond now set up, and accordingly pleads in bar of the complainant’s action, the lapse of time, and that by the law of the land he is not liable to be disturbed in his possession by any claim so stale. In relation to the interrogatory specially put to this defendant, he says that he is in possession of the plantation called Cane Savannah Mills ; that he has heard that a small and valueless part of said tract was once the property of his grandfather Matthew Singleton ; that the title by which he claims said estate, is a grant *120dated , and under which he has had quiet and peaceable possession for more than twenty years; and he submits that his title cannot now be called in question. This defendant has no sufficient information to enable him to say in whose possession the estate, real and personal, derived by his father from Matthew Singleton, now is; neither can he now say particularly how the estate of Isham Moore was divided, as that event took place thirty years ago; and all his children having peaceable possession of their estates, have long since forgotten the particulars of the division, which took place in 1804. Neither Richard Moore nor Matthew S. Moore took any securities from this defendant; nor did they ever hint that there was any claim on the part of John Singleton, for any contribution of the pretended debt due Pinckney. He admits that a bond was given by Richard Moore and Matthew S. Moore, as charged, but what were the circumstances attending it, he is wholly ignorant. The said bond was paid, as any other debt of the obligor would be, out of their own estates, and from no contributions known to this defendant, who utterly denies any right of the complainant to contributions ; and he pleads all and every statute, by whatever name known to the law, intended to quiet the estates of the good people of this State, against a claim so stale, and unsupported by facts or principles. Without that there is any matter or thing in the said complainant’s said bill of complaint contained, material or necessary for this defendant to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed, and avoided, or denied, is true, to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, maintain, and prove, as this honorable court shall direct; and humbly prays to be hence dismissed with his reasonable costs and charges, in this behalf, most wrongfully sustained.”

The further answer of John J. Moore, as executor of Matthew Moore and adm’r of Richard Moore, was as follows:

“ This defendant now, and at all times hereafter, saving and reserving to himself all benefit and advantage of exception which can, or may be had or taken to the many errors or uncertainties, and other imperfections, in the complainant’s said bill of complaint *121contained, for answer thereunto, or unto so much and such parts thereof, as this defendant is advised is, or are necessary or material for him to make answer unto, this defendant answering, saith :— That he admits that Isham Moore died some time in 1804, and that Richard Moore and Matthew S. Moore were his executors; but he is totally unacquainted with the settlement of the estate of Isham Moore, which took place more than thirty years ago; and cannot admit or deny any allegations relative thereunto. He does not know, and does not admit, that either of them had any notice of the claims of Charles Pinckney upon the estate of their testator, Isham Moore, or that they ever recognized the same, as a valid claim on his estate. This defendant is not aware of the pretended settlement of the estate of Isham Moore with John Singleton: but presumes, if any was made,-and the claim of Pinck-ney’s bond was excluded, it was because it was not admitted to be due; and from the time which has elapsed, he infers that no valid claim did exist; and he is advised, that having called in all demands against their testator thirty years' ago, they are not bound to recognize a demand now presented, after, as he avers, they had disbursed and divided the estate of said Isham Moore so long since; and he expressly denies that any fund of the said Isham Moore was reserved to pay the pretended claim, or that the same has for a quarter of a century been admitted as a valid demand against Isham Moore, or his representatives. This defendant-claims, that the said executors of Isham Moore have never admitted the validity of the demand, or that they have had any funds to meet it; and relying on the fact that John Singleton, surviving executor of Matthew Singleton, by his pleadings admitted assets to pay the said debts, that it is quite too late, now after the death of all the parties, to make a claim for contribution from Isham Moore’s estate. This defendant denies any recognitions by his deceased testator and intestate, of the validity of this demand, and hopes that the complainant has made his last objection to the distribution of the estate of Matthew S. Moore and Richard Moore. He denies all and every allegation in the bill, which charges that either of the deceased- had any notice that a suit was pending, in any way affecting their rights, or implicating the estate *122of Isham Moore ; or that any demand, or notice of such claims, was ever made, until the filing of the bill of the administrator of Charles Pinckney, which was dismissed ; and he is advised, that he is in duty bound to plead the statute of limitations, to all and every demand o.f the complainant. Without this that there is any other matter, cause, or thing, in the complainant’s said bill of complaint contained, material or necessary for this defendant to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed, and avoided, or denied, is true, to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, maintain, and prove, as this honorable court shall direct: and humbly' prays to be hence dismissed with his reasonable costs and charges, in this behalf most wrongfully sustained.”

The following orders in the case were subsequently entered:

“ It appearing to the satisfaction of the court, that Merry Bracey and Anthony Butler, two of the defendants, reside without the limits of this State: It is ordered, that they do appear and plead, answer or demur, to the bill filed in this case, on or before the first day of August next; and on failure so to do, this bill be taken *pro confesso,*against them. Provided, that this order be published in the Columbia Telescope, weekly, for three months, in the mean time. By order oe the court.

*Sumterville, 20ih February,*1835.”

“ Satisfactory evidence having been produced to me, that the order of February Term, 1835, Minutes Book C., p. 10, has been duly published as required, no appearance having been entered, plea filed, answer or demurrer, by Merry Bracey or Anthony Butler : It is ordered, that the said bill be taken *pro confesso*against them, 21st August, 1835.

(Signed) John B. Miller, Commissioner.”

“ It is ordered that this bill be taken *pro confesso*against Thos. J. Polk, Sarah, and Anne J. M. Butler, this 21st August,-1835.

(Signed) John B. Miller, Commissioner.”

*123The case made upon the bill, and answer of John J. Moore, came on to be heard before Harper, Chancellor, at Charleston, January Term, Í828. The decree of his honor, the chancellor, embodies a statement of the case as made by the evidence, and is as follows: .

“ On the 26th November, 1783, Matthew Singleton, of St.Mark’s Parish, entered into a bond to Charles Pinckney, conditioned for the payment of £1000. The bill charges, that Matthew Singleton, being possessed of a considerable real and personal estate,'executed his last will, by which he devised and bequeathed his whole estate to be equally divided between his son John Singleton, and his daughter Ann Moore, the wife of Isham Moore, or her husband, the said Isham Moore, and appointed the said John Singleton and Isham Moore, his executors. The bill alleges that complainant has no copy of the will, the original having been destroyed, and claims a discovery and admission of its contents. It charges that John Singleton and Isham Moore, divided the estate between them, and as the same far exceeded the amount of testator’s debts, agreed between themselves that each should pay a moiety of the debts. That the other debts of the testator were paid in pursuance of the agreement, but that the debt to Pinckney remained unpaid at the death of Isham Moore, in 1803.

In 1806, an action at lawgwas brought in the name of Charles Pinckney, against John Singleton, and a judgment recovered for the amount of $8,332 36 besides costs. It appears that John Singleton paid something more than a moiety of the debt in his life time, and died in 1820, having made his will, and appointed the complainant his executor. On the 9th of June, 1826, an action was brought in the name of Thomas O. Elliott, administrator *de bonis non*of Charles Pinckney, against the complainant as executor of John Singleton, on the former judgment; and a second judgment recovered in 1830, for the principal sum of -$3,800, with interest from the 14th April, 1807.

Isham Moore, by his will executed previously to his death, gave specific legacies to his children, Richard Moore, Matthew S. Moore, Tabitha Polk, wife of James Polk, Ann J. M. Butler, wife of Anthony Butler, Alice Moore, Sarah Moore, and John J. *124Moore, and directed the residue of his estate to be equally divided between them, with a limitation to survivors, ih the event of the death of either, leaving no issue: of which will he appointed Richard Moore and Matthew S. Moore executors, who proved the will and qualified. Alice Moore, one of the testator’s daughters, married Merry Bracey, now of the State of Mississippi, and died leaving issue and her husband surviving. Sarah Moore, another of the daughters, married Thomas S. Polk, and Tabitha Polk died leaving no issue, whereby her interest in the estate bequeathed to her, has accrued to her surviving brothers and sisters. All the surviving children of Isham Moore are made parties to the bill, with the husbands of the daughters, including Merry Bracey, the former husband of the deceased daughter. Richard Moore and Matthew S. Moore, the executors of Isham Moore, are both dead, and the, defendant John J. Moore is the administrator of the former and the executor of the latter. The bill charges that the complainant has paid off the judgment obtained against him by the administrator *de bonis non*oí Pinckney, and claims to be reimbursed that amount, either out of the assets of Isham Moore, which came into the hands of his executors, Richard and Matthew S. Moore, and which may now be in the hands of their personal representative, the defendant John J. Moore, or out of the estate of Isham Moore, which came into the hands of his children and legatees. .

The defendant John J. Moore has answered the bill, as administrator of Richard Moore and executor of Matthew S. Moore, and as one of the children and legatees of Isham Moore, and it has been taken, *pro confesso,*against the other defendants. The answers do not admit the existence or contents of Matthew Singleton’s will, or that Isham Moore was one of the executors of it, or that the estate of Matthew Singleton was equally divided between the said Isham Mooré and John Singleton, or the agreement charged by the bill with respect to the payment of debts, but as to these facts call for proof. They allege that the estate of Isham Moore was distributed between his children and legatees,.in 1804, and that they have been in peaceable possession of the portions of the estate assigned to them ever since, and defendant prays that they *125may be protected, by the lapse of time and the statute of limitations.

I think there is sufficient proof that there existed a will of Matthew Singleton, of which John Singleton and Isham Moore were executors. The transcript of a record was produced, of an action brought in Camden district, against Isham Moore and John Singleton, as executors of Matthew Singleton,' to which they pleaded jointly as executors, and judgment recovered in 1793; as also, certified abstracts of five similar records. Receipts were also produced, given to debtors, of the estate of Matthew Singleton; an account of payments made to Isham Moore and signed by him as executor. •

I think, too, that I must hold the loss to be sufficiently established; the evidence is, that all the wills of Clarendon county, (in which the testator died,) up to 1799, were in the clerk’s office of the county court. In 1799 the county courts were abolished, and all the wills and records transferred to the office of the district court. It is a matter of notoriety, that all the papers and records of Clarendon and Claremont counties, were consumed when the clerk’s office was burnt in 1805. The witness (Col. Blanding,) thought that before 1785, wills were deposited in the ordinary’s office of Camden district; and by the act of 1799, were directed to be transferred to the clerk’s office of Kershaw district; the witness has examined the office for the will of. Matthew Singleton, but did not find it.

There was no direct evidence of the contents of Matthew Singleton’s will, or of the division of his estate. The only evidence from which these facts are to be inferred, as well as the alleged agreement, or understanding, with respect to the payment of his debts, is what must be regarded as the admissions of his executors Richard Moore and Matthew S. Moore. A letter from Richard Moore to complainant, of the date 5th of September, 1821, was produced, in which it is said that he incloses an account found on his father’s books, against his (complainant’s) father, and he adds, *“*there is a balance paid by my father, on Matthew Singleton’s bond, to S. Brailsford, *.over his proportion” “*and also the amount of about £200, on John Winn and Matthew Singleton’s bond, to *126Felix Long, which your father will have to account for; my father having paid the whole, or nearly, of this bond.” In consequence, I suppose, of this, negotiations were entered into for settling the accounts between- the parties. The principal witness examined, (Jeptha Dyson,) Stated that he was employed by complainant, as early as 1824, to settle the accounts of his father’s estate, with that of Isham Moore,-but no settlement was effected until the 19th of June, 1826; at that time there were present together, the complainant, Richard Moore, Matthew S. Moore, the witness in behalf of complainant, and John Mayrant, on behalf of the Messrs. Moore, when a settlement was made, and the Moores were found indebted to the complainant in $1608 40, and gave their bond conditioned for the payment of that sum. Among the items which went to make up .that amount, was the sum of £72 11, which was claimed by complainant for so much paid by his testator, over and above his moiety of the bond to Pinckney. Various papers were produced, and marked by me, “proved,” and numbered from “1” to “15,” inclusively, which the witness stated were present at the time, and were the data on which the settlement was made, the correctness of which was acquiesced in and admitted. No. 1, is a statement of the amount due by complainant’s intestate, on Pinck-ney’s bond, charging him with one-half, (£500,) calculating interest, crediting the payments made by him, and showing the overpayment mentioned, £72 11.

The witness stated, that complainant was desirous of taking a bond to secure the payment of the balance due on the bond to Pinckney. But Mr. Richard Moore thought his father had made other payments, which were not credited, and required time to examine, to which complainant assented. At the same time, the Moores executed to complainant the following acquittance: “Received, June 19th, 1826, of Richard Singleton, executor of John Singleton, deceased, one dollar, in full of all demands against the said estate. It being understood that the amount due on the bond to Pinckney, ¿nd the. payments thereon, is left open for future settlement.” I do not think this at all inconsistent with the evidence of the witness, John Mayrant, which was taken in writing. He states, that “ the Mr. Moores had instructed the witness not to *127admit the Pinckney bond, as they supposed it was paid.” After stating further to the same effect, the witness adds, that “ in malting the settlement, all the debts due to and by Matthew Singleton, were credited and charged equally to the two estates of Isham Moore and John Singleton.” This, certainly, was an admission that each estate had a right so to charge, and was liable to be so charged. Complainant then had no right to claim of them money due on Pinckney’s judgment, which he had not paid, and which it was supposed he might never be compelled to pay. The including of the £72 11, in the bond, was an express admission of their liability to refund what John Singleton had paid beyond the moiety. Several of the papers produced and numbered, were used to show that the whole statement was based on the assumption, that each estate was entitled to receive and liable to pay, equally, any thing that was due to or by the estate; for instance, the witness stated that the last item in “No. 3,” being a statement of the claims made by complainant against the estate of Isham Moore, was for the difference which Isham Moore had received over and above his share of a bond given by one Williams to Matthew Singleton. “ No. 6,” is a statement of the same bond, deducting what John Singleton had received on it from that which Isham Moore had received, and charging the latter with half of the balance. The witness states, that the papers and items were fully examined by the parties, and the correctness of the account, as made up, admitted. All this, certainly, was an admission on the part of the executors of Isham Moore, of the liability of their testator’s estate, for one-half of the debts of Matthew Singleton, which liability could only have arisen out of some such understanding, or agreement as that charged by the bill, founded on that which is a natural and probable supposition, that the estate of Matthew Singleton had been equally divided between his children. These admissions were certainly evidence. They might not be conclusive, if there were any ground to suppose that they had been mistakenly made. But they seem to have been made very advisedly, or rather the mutual liability to have been taken for granted, on the familiar knowledge of the parties of the course of transactions between their testators. I must regard the respective liability of both estates, for the debts of Matthew Singleton, as being established.

*128Then we are to consider the effect of lapse of time, or of the statute of limitations ; the general rule of course is, that the statute of limitations cannot begin to run so as to bar an action, until a cause of action has arisen. The cause of action now relied on is the payment of the, money on the last judgment recovered against complainant, by the administrator of Pinckney. This payment, I understand to have been made just before the filing of the bill. It may be observed that a statement of these payments was to have been furnished me, which was not done. I did not, however, understand the fact to be disputed. If there is any error in this respect, it may be corrected, or made the subject of reference. It was urged, however, that complainant, or his testator, had another cause of action; that complainant’s testator, so soon as he had paid off his portion of the bond to Pinckney, might have filed his bill to compel Isham Moore to pay his moiety. This, I suppose, was 'in analogy to the cáse of a surety, who has a right, when the account is due, to come into this court to compel the principal to pay. But I have not found any authority for this, nor do I know that the analogy will hold. In the case of principal and surety, both are liable at law. The surety does not only come to compel the principal to pay, but, as explained by Chancellor Kent, in King v. Baldwin, 2 Johns. C. C. 562, to compel the creditor to collect his debt. But the creditor here had no claim against the estate of Isham Moore. A bill brought by him against the representatives of that estate, I understand to have been dismissed on the ground, that he had adequate remedy against the complainant at law. But, supposing that complainant’s testator had such a cause of action, it was of a purely equitable nature, and I cannot apply to it the bar of the *statutes of limitations,*in analogy to the case of legal demands. In general, an equity may be barred by the lapse of twenty years. But without entering into the question, whether complainant’s equity could have been barred so long as the judgment was of force against him ; at all events, unless it had been kept of force by some act or admission of his, I must consider any presumption from the lapse of time, rebutted by the negotiations between the parties, and |he transactions between the 19th June, 1826. The lapse of time, with respect to a bond, is computed from the date of the last payments, for *129on the 19th of June, 1826, the representatives of Isham Moore made a payment to complainant on account of what his testator had paid beyond his moiety of the debt to Pinckney, and the acquittance, then executed, seems a plain reservation of all the matters and questions which might arise with respect to payment on that debt. ,

Besides, as I have said, allowing that there was such an equitable cause of action, that is not the cause of action now relied on, and upon which I am to decide. That arises out of the payment of the money, and is in the nature of a legal demand for money paid, to which I suppose the bar. of the statute would apply, if complainant had allowed four years to elapse between the time of payment and the commencing of his action.

It was urged, that the children and devisees of Isham Moore have, been in possession of the property assigned to them, since the distribution of his estate, in 1804, and that with respect to this propertj^, they must be protected by the statute, as in the case of Screven v.. Joyner, 1 Hill, Ch. R. 252, where the purchaser of mortgaged lands from the mortgagor was decreed to hold it under the statute against the claim of the mortgagee, or as is said in Alexander v. Williams, 1 Hill, 524, that a purchase of property of an estate in payment of the executor’s own debt, may be protected by the statute, against creditors of the estate ; but it is hardly ne-; cessary to say, that in these cases, the cause of action had arisen before the statute began to run. In the former, not only the mortgage was forfeited, but a decree had been obtained for the sale of the land, and it was the gross laches of the mortgagee not to enforce it during all the time required for the statute to run. I , doubt whether the complainant’s cause of action, against the lega- *f*tees, could be .said to have arisen until he had established his de-j mand against the executor, and he *had*either proved insolvent, or/ shown that he had distributed the estate before notice of the demand.’

If there were such an agreement as I have supposed, then upon complainant’s paying off the judgment against .him, a debt was created, due to him from the estate of Isham Moore, which any part of Isham Moore’s estate was liable to pay. I do not *130perceive any evidence, that the executors of Isham Moore received any notice of this demand, before distributing the testator’s estate, or that they were bound to retain, or did in fact retain, assets, to meet it, or that their estates can be made liable as for their debt. It is well settled, however, as said in the case of Fripp v. Talbird, 1 Hill, Ch. 144, that in the case of an executor’s *insolvency,*a creditor has a right to follow assets of the estate in the hands of legatees ; so it is said that a legatee must refund, if deficiency is created by debts which did not appear till after payment of the legacy. Cox’s note to Noel v. Robinson, 1 Vern., 94, referring to Nalthrop'v. Hill, 1 Chan. Ca. 136. A question might perhaps be started, whether a different rule should not obtain in this State, where the act of the legislature requires creditors to render in their demands within a year after the death. But, though if they fail to do so, the executor certainly would be justified in paying over the estate to legatees ; yet I have not heard it suggested nor does the act say, that the neglect shall involve a forfeiture of the debt. But in this case, there was no debt until after the alleged distribution of Isham Moore’s estate. Complainant’s testator, by his payment in 1806, created a debt to the extent of his payment above his moiety. That debt has been paid.— The debt, now claimed, only arose upon complainant’s making payment of the judgment against him. The remedy is against the executor when he is solvent, because, having notice of the debt, he has paid over the estate', in his own wrong. But, where neither the creditor, or executor, is in default, there is just the same equity to follow the assets as in the case of the executor’s insolvency.

On the part of complainant, a decree is claimed against all the defendants, children and devisees, and legatees, of Isham Moore, and the husbands of the females, for the amount of his claim, to the extent of the assets, or estate, which they have received. Any part of Isham Moore’s estate, in the hands of his legatees, is certainly liable to his demand. But if he should recover of one more than his due proportion, that one would be entitled to resort to the rest for contribution ; and on' a well known principle of equity, as suggested in Fripp v. Talbird, in order to do complete justice, and *131prevent circuity of remedy, all parties, liable to the burden, should be brought before the court; and I think the proper decree, in the first instance, would be that each should pay in proportion to what he had received. In the case of M’Mullen v. Brown, 2 Hill, Ch. 457, it was, I think, decided that a creditor was not bound to pursue property in the hands of a legatee, without the State, but might resort to that which remained within the State ; so, if one legatee, within the State, were insolvent, he would be entitled to satisfaction out of the property in the hands of those who were solvent. In this case there is no suggestion, of the insolvency of any of the defendants. Some of them are said to live without the State; but complainant has thought proper to proceed against them; has made them parties to this bill, and asks for a decree against them. I must suppose that they may perform the decree. I think the proper course will be to decree that each of the defendants shall refund in proportion to what he has received, leaving the complainant at liberty to make a future application to the court, if he should be unable to enforce his decree against any of the parties, on account of insolvency, or any other cause. As I have said, the proof of the payments made by complainant was not regularly made. This, I suppose, was a casual omission, and it may be included in the order of reference.

It is therefore ordered and decreed, that it be referred to the proper officer of this court, to take an account of the payments made by complainant on the judgment obtained against him, as executor, by Thomas 0. Elliott, administrator *de bonis non,*of Charles Pinckney; and that he also take an account of the amount of the assets and estate of Isham Moore, deceased, received by each of the defendants, respectively, under the will of the said Isham Moore, and that the said defendants refund, and pay the complainant the amount so paid by him on the judgment aforesaid, each contributing to the said payment in proportion to the amount respectively received by them, from the said estate.”

The case was carried up to the court of appeals on the motion of the defendant, to reverse the decree of the chancellor, and after argument in that court, the following opinion was delivered :

*132
      *B. F. Hunt,*for the motion.

Cukia, per Harper, Chancellor.

The court perceives no reason to dissent from the conclusions of the chancellor, his decree is therefore affirmed.

David Johnson, Chancellor, concurred.

Chancellor Dunkin gave no opinion, having been of counsel in the cause.