1880. Septem'r from the appeal bonds, is entitled to reimbursement for whatever he has overpaid on said decree. And so Term. he and the other appellants are bound for the five thousand dollars ($5,000) in the proceedings mentioned Harnsberger as arranged to be paid, but which has not in fact been paid. These matters should be adjusted in the decrees among the parties. Fifth. That the question in controversy between the said W. B. Yancey on the one side, and his subvendees, Bernard P. Teel and Charles M. Price and their respective sureties, Henry E. Sipe and William S. Miller, on the other, are not properly before this court on the present appeal, not having been adjudicated by the decree of said circuit court appealed from, but expressly reserved by that court for future determination; and therefore this court expresses no opinion upon said questions. Sixth. That the decree aforesaid, pronounced by the said circuit court on the 29th day of November, 1878, is in conflict with the opinion of this court hereinbefore expressed, and is erroneous. Therefore, it is decreed and ordered, that the said decree of the 29th day of November, 1878, be reversed and annulled, and that the appellants recover against the appellees, W. A. Yancey and James M. Weaver, their costs by them expended in prosecution of the appeal aforesaid here, and this cause is remanded to the said circuit court, with directions to that court to order such accounts and take such further proceedings in the cause as may be necessary and proper in order to final decree, in conformity with the opinion and principles hereinbefore expressed and declared. All of which is ordered to be certified to the said circuit court of Rockingham county. DECREE REversed. & als. V. Yancey & als. 1880. Septem'r Term. Staunton. EWING's adm'r & als. v. FERGUSON's adm'r & als. October 2. 1. Parties having obtained decrees against their debtor M in a suit pending in the county court, and he having become bankrupt, may bring another suit in the circuit court against the administrator and heirs of his surety E, to subject the real estate of the surety to satisfy their debts. 2. Though the bill in such case only sets up their claims, and seeks payment of them, and does not purport to be a creditor's bill, it is to be so treated, and other creditors of E may come in by petition and be made parties plaintiffs in the cause, and there may be a decree for account of debts in the case. 3. The bill having been dismissed on demurrer, but leave given to file an amended bill, the amended bill is not a departure from the original bill, because some of the original plaintiffs do not unite in it. 4. The amended bill being filed in the name of some of the original parties and of the creditors who had come in by petition, and only setting out more fully the nature of their claims and the character of the bill as a creditor's bill, is not a departure from the original bill, but is a valid amended bill. 5. One of the debts set up by one of the petitioning creditors was evidenced by a negotiable note and to this debt the statute of limitations was pleaded. HELD: The statute of limitations ceased to run against all debts of the debtor from the date of the decree for an account; and the note not having been barred at that date, the statute does not apply to it. 6. The heirs of E being infants, though their guardian was a party and answered, they were entitled to be defended by a guardian ad litem, and although one was appointed for them, and there 1880. was a paper purporting to be an answer found among the papers of the cause, yet as it did not appear that it had been filed, it Septem'r was error to decree the sale of the infant's land, without an answer filed by guardian ad litem. Term. Ewing's adm'r & als. V. son's adm'r & als. 7. The real estate of E had been purchased by him from M, the principal debtor in the claims set up against E's estate, and there were some grounds for supposing that at the time of the Fergusale and conveyance to E, M had other unencumbered land which he afterwards sold. It was error to decree the sale of E's land to pay the debts of M, until a full enquiry was had whether there was not real estate held by M at the time of his sale to E which was primarily liable to pay these debts for which E was liable as M's surety. In a cause depending in the circuit court of Botetourt, brought by Kyle's guardian v. Kyle's heirs, for the division of the estate of Robert Kyle, deceased, Fletcher H. Mays was appointed a commissioner to sell a house and lot and collect the purchase money; and the sureties on his bond given under this decree requiring him to give other security for their relief, Daniel P. Ewing became his surety in the new bond executed by him. Mays sold the house and lot, and paid over the first and second instalments of the purchase money, to the parties entitled to it; but failed to pay over the third instalment; and on the 8th of November, 1866, the court made a decree directing Mays to pay to each of the heirs of Robert Kyle, deceased, the specific sum which a commissioner had reported as due to each of them. Of these there were ten, and the amounts coming to each ranged from $20.46 to $163.67. In February, 1873, Lucy Ferguson, Isabella Rowland, Elgeane St. Clair, Joseph F. Robinson, Lucian B. Robinson and Elizabeth Robinson, some of the said heirs of Robert Kyle, deceased, instituted their suit in equity in the county court of Botetourt against F. H. Mays, James M. Figgatt, assignee in bankruptcy of adm'r & V. Ferguson's adm'r & als. 1880. said F. H. Mays, Mollie J. Bayne (who was formerly Septem'r Term. Mollie J. Ewing,) widow of Ewing, deceased, in her own right and as the former administratrix of said Ewing's Daniel P. Ewing, deceased, Henry C. Douthat, late als. sheriff of Botetourt, and as such administrator de bonis non of said Daniel P. Ewing, Cora Bell Ewing, Anna James Ewing, the last two infant children of Daniel P. Ewing, Charles Bayne, guardian for the said infant children, and the other heirs of Robert Kyle, deceased. In their bill they set out the fact of Mays' appointment as commissioner, and Daniel Ewing's suretyship; Mays' failure to pay over the third instalment of the purchase money of the house and lot, and the decree against Mays, in favor of the plaintiffs; and they charge that they had received no portion of the said money, but that the whole of the several amounts so decreed to be paid to the plaintiffs by said Mays remained unpaid. They set out the suretyship of Daniel P. Ewing; and that since the said decree of the 8th of November, 1866, Mays had been declared a bankrupt, and James II. Figgatt had been appointed his assignee. That Daniel P. Ewing died in 1862, and that his widow qualified as his administratrix; that in 1868 she settled her administration account, from which it appeared the whole personal estate had been administered; that she had married Charles Bayne, by which her authority as administratrix had terminated, and the estate was committed to Henry C. Douthat the sheriff of Botetourt, but that he had received no assets. They further state, that Daniel P. Ewing died in the possession of a large and valuable estate, known as "Oakland," in the county of Botetourt, which he had purchased but a short time before his death from F. H. Mays, for $10,000, the whole of the purchase money for which was fully paid-the larger part by Ewing in his lifetime, and the remainder by his administratrix; that the deed was not made for the said real estate 1880. until after his death, and bears date the 7th of May, Term. Septem'r 1863, by which Mays and wife conveyed the land to Cora Bell Ewing and Anna James Ewing, infant heirs of said Daniel P. Ewing. Ewing's adm'r & als. V. son's adm'r & als. The prayer of the bill is, that the court will grant Ferguthe plaintiff's a decree against the estate of Daniel P. Ewing for their respective debts, as appears of record against the said F. H. Mays, for whom the said Daniel P. Ewing was security as aforesaid; and if the personal estate has been exhausted in the payment of debts, that the said real estate, or a portion of it, may be sold or rented, and that the proceeds arising from such sale or renting may be applied to the plaintiff's debts. On the 12th of May, 1873, Mollie J. Bayne, as late administratrix of Daniel P. Ewing, and Charles Bayne, in his own right and as guardian of Cora Bell Ewing and Anna J. Ewing, appeared and filed their demurrer and answer to the bill. They set out several causes of demurrer, 1st. To the jurisdiction of the court to try and decide this cause; 2d. That the case was in the circuit court of Botetourt, where all the rights of the parties had been passed upon; 3d. That the plaintiffs have a clear legal remedy in the law court, &c., &c. The answer need not be stated. It was sworn to by Charles Bayne on the 8th of May, 1873. On the 12th of May, the same day on which the answer was filed, Ellett & Drewry and H. & I. Guggenheimer presented their petitions to the court, claiming to be créditors of Daniel P. Ewing, and asking to be made parties plaintiffs in the cause, and that they might be allowed to participate in the results that may be secured therein on the usual terms; and that proper enquiry may be made of all outstanding unsatisfied debts of the said estate, &c. And the petitions were allowed to be filed. |