1. Where in a proceeding to sell the real estate of a decedent
for the payment of his debts, the solicitor who presents the
petition for the decree of sale is himself appointed trustee to
make the sale, and himself becomes bound in bonds for the
performance of the duties belonging to such appointment, and
himself makes all the motions and procures all the orders under
which the trustee's liability in the matter arises, he may, if he
is liable for the nonpayment of money which he was ordered by the
court to pay, be sued without formal notice to him. He has notice
in virtue of his professional and personal relations to the
case.
2. Where a trustee in such a case has given bonds with surety in
a penal sum to the state conditioned for the performance of his
duties, children, entitled equally to a share in any surplus
remaining after debts, expenses &c., are paid from the proceeds
of the sale, may, by the practice in the District of Columbia,
after the exact amount of such share has been found by an auditor
whose report is confirmed by the court, bring joint suit against
the surety -- the trustee being dead -- in the name of the state on
the bond for the penal sum, and a judgment for that sum to be
discharged on the payment of the shares or sums certain found as
above said is regular.
Such joint suit, though against the surety of the trustee (the
trustee in his lifetime having had notice of everything), may, in
the District, be at law.
Boteler, of Prince George County, Maryland, died possessed of
considerable real estate and of some personalty, owing to one
Warner a debt which the personalty was not sufficient to pay, and
leaving a widow and minor children. Administration being taken by
his widow upon his estate, a petition was filed by Warner,
February, 1853, in accordance with the laws of Maryland, against
the widow and children, to subject this real estate to the payment
of the debts.
Page 85 U. S. 431
Daniel Digges, Esquire, was the solicitor of the petitioner, and
as such signed the petition praying for a decree of sale. The court
made the decree prayed for, and appointed the said Digges, the
solicitor, trustee to make it. He was required to give bond in
$15,000 for the faithful performance of his duties as such trustee.
This bond he gave with Norah Digges as one of his sureties, the
bond being in the form usual in Maryland -- that is to say, to the
state, for the use of the parties interested in the real estate to
be sold. By the decree ordering a sale, the trustee was ordered to
bring into court the money arising from such sale, and the bonds or
notes taken for the same, all to be disposed of under the direction
of the court. The trustee made sale and reported it to the court,
but never brought into court the money, notes, or bonds.
In June, 1854 -- Digges still maintaining his relations to the
case -- an auditor was appointed to distribute the funds in the
hands of the trustee. The auditor reported that of this fund there
was due to each of the minor children the sum of $704.39 1/4.
Thereupon the court, on the 11th of April, 1860 -- Digges still
acting as solicitor -- confirmed the report and ordered the trustee
to pay over these sums to the parties entitled. The trustee did not
pay over as ordered, and afterwards, in 1860 apparently, or 1861,
died insolvent. His surety being also dead, and J. C. Brent being
his executor, suit was brought at law on the bond against Brent in
the name of the state by the children jointly. The auditor's report
which was in the record did not mention that Daniel Digges, the
solicitor in the case, had appeared before him or had notice of the
report's being made. Nor did the declaration in the case aver or
the evidence show that any service of any order to pay or any
demand of payment had been specifically made on the said Daniel
Digges, the trustee.
The defense was,
1. That the trustee, Daniel Digges, had no sufficient notice of
the auditor's report and its confirmation.
2. That the plaintiffs could not
jointly maintain their
action.
3. That the remedy was in equity alone.
Page 85 U. S. 432
But the court overruled all the defenses and gave judgment for
$15,000, the penalty of the bond, to be discharged upon payment of
a sum specified to each of the plaintiffs therein. Thereupon the
defendant brought the case here.
Page 85 U. S. 433
MR. JUSTICE HUNT delivered the opinion of the Court.
The point chiefly insisted upon in the argument of the counsel
for the plaintiff in error, is this: that Digges, the trustee, had
no notice of the auditor's report and of its confirmation, and that
for the want of such notice, this action cannot be maintained. We
are of the opinion that this point is not well taken. We recognize
the soundness of the decision in
Oyster v. Annan and other
decisions in the State of Maryland, cited to us that before a suit
can be brought against a trustee, he must have had notice of the
duty he is required to perform and must have had an opportunity to
perform it. In the case just named, the court said:
"The trustee, as to the suit, is not in the situation of a
common debtor who knows his liability, and whose business it is
to
Page 85 U. S. 434
look to a compliance with his engagements. . . . This
proceeding, as to the trustee, is
res inter alios acta,
and it is but reasonable that when it terminates, he shall be
notified of the result before any steps are taken against him,
either by attachment or by action on his trustee's bond against him
and his sureties."
These remarks are founded in good sense, and do not conflict
with the authorities cited on the other side, [
Footnote 1] to the effect that where the trustee
is himself an actor in the transaction, and has full knowledge of
his duties, such notice and demand are not required.
Daniel Digges, the principal in the bond sued on, was not only
the trustee, but he was the solicitor or attorney who procured
himself to be appointed trustee, and as such solicitor himself
procured the court to grant and the clerk to enter the orders out
of which the liability arises. Thus, after he had obtained the
orders for the sale of the property, had sold the same and received
the proceeds thereof, he caused an order to be entered in November,
1853, ratifying all that he had done. In June, 1854, he caused an
order to be entered, referring it to an auditor to make
distribution of the trust fund among the creditors and parties
thereto entitled. In the execution of this order, Mr. Hance
reported, in 1859, that there was due and payable to each of the
plaintiffs, the sum of $704.39 1/4. On the 11th of April, 1860, Mr.
Digges causes an order to be entered, finally ratifying the
auditor's report, and ordering that the trustee be directed to pay
all the trust fund to the several parties named in the auditor's
report. Here was a positive direction to the trustee to pay
specific sums to persons named, and without qualification or delay.
He became an absolute debtor to each of them for the amount payable
to each. The order was of his procuring, made and entered through
his agency. That it should be necessary to give a man notice of
what he had himself done, or that a demand of performance should be
required of that which he had himself directed should be done by
himself at once and without condition, would be
Page 85 U. S. 435
quite remarkable. No such necessity exists. The case falls
within the other principle referred to, that notice and demand are
not necessary where the trustee is himself an actor and has full
knowledge of all that is required to be done. He was, in the
language of the court in
Oyster v. Annan, "a common debtor
who knows his liability, and whose business it is to look to a
compliance with his engagements." No case has been cited to support
the views of the plaintiff in error, and we think none can be
found. In
State v. Digges, [
Footnote 2] the court place their dismissal of the suit
upon other grounds, and the circumstance that Mr. Digges was both
the trustee and solicitor in the transaction is not alluded to
either in the argument of counsel or in the opinion of the
court.
The remaining objections, that the bond cannot be sued upon by
the plaintiffs below jointly and that the action cannot be
maintained in a court of law, but that equity must be resorted to,
are not sustained by the authorities. The suit in the present form
in the name of the state, for the use of parties interested, is
according to the practice in Maryland and in the District of
Columbia. [
Footnote 3]
In
Brooks v. Brooke, it was decided that the action
against the sureties upon the bond could properly be brought in a
court of law, and the circumstance that the trustee died before
notice was given to him, where notice was necessary, it was held
would justify the interposition of a court of equity. To the same
purport is the case of
State v. Digges, where it was held
that the death of the trustee without having received notice of the
order and demand of payment, required the action to be brought in a
court of equity. The case is not applicable to an instance like the
present, where notice and demand is not required to be given.
Judgment affirmed.
[
Footnote 1]
See supra, p.
85 U. S.
433.
[
Footnote 2]
21 Md. 24.
[
Footnote 3]
See Oyster v. Annan, cited supra.
