Nelson's heirs v. George

40 Ky. 281, 1 B. Mon. 281, 1841 Ky. LEXIS 32

• Court: Court of Appeals of Kentucky
• Decided: May 13, 1841
• Status: Published

Opinion

Judge Ewing

delivered the Opinion of the Ciurt.

This is an action of ejectment, brought by Nelson’s heirs against George and wife, for 649 acres of land, claiming title under a deed of the Marshall for the State of Kentucky.

Verdict was obtained, under the instructions of the Court, to find for the defendants, and a judgment rendered accordingly, from which Nelson’s heirs have appealed to this Court.

Nelson, in his lifetime, brought suit on an injunction bond, against the heirs and devisees of Joseph Brooks, deceased, and recovered judgment, “to be levied of the estate of the decedent which has descended to the said heirs and devisees.” Execution was sued out thereon, and among,many other tracts, was levied on the tract of land in contest, which had been devised by the decedent to his daughter Polly Pendegrast, who had devised the same to her daughter Mrs. George, one of the defendants, years before the suit on the injunction bond had been commenced. Mrs. George had been joined in this suit, with the proper heir's and immediate devisees-of Joseph Brooks, and sued as one of his heirs and devisees, and judgment rendered against her as such, by default.

Though the language used in the judgment is inappropriate and unclerical, it must be understood as clearly intending to express the idea that not only the land desceroded but that devised was subject to be levied on. Force and effect could not be given to the language used by any •other construction. Lands in the bands -of the -devisee., as such, were intended to be subjected, as well as those in the hands of the heir, or the word devisee need not have been used. And though land could not be properly said to descend to him, it could come to him by devise, and such as came to him as devisee, (which could alone come by devise,) was intended to be subjected.

A devisee of a devisee -cannot be joined in a suit with the h’s and devisees, as def’ts at law— Qu. Gan the devisee of a devisee be sued in any form for the debt of the first testator under our statutes? On a judgment against ‘the heirs and devisees, of J. B. lands devised by a devisee of J. B. and so held, although originally part of fhe estate of the first testator, cannot be sold.

But it was determined by this Court, in the case of Scott’s adm'rs vs King’s heirs, &c. 3 Dana, 470, that a devisee of a devisee could not be joined in a suit with the heirs and devisees of the original devisor, and pretty clearly intimated that our statutes, Stat. Laws, 742, 748, did not authorize an action at law against such a devisee in any form. We still adhere to the opinion then given, and are also inclined to the opinion there intimated. At common law the devisee could not be sued, and our statutes, according to their literal import, only authorize an action against the devisee of the “dead person,” “or the devisee or devisees of the deceased obligor.”

But if an action at law could be maintained against a remote devisee, he should be sued in his proper character, and the estate sought to be subjected, should be embraced by, the terms of the judgment.

Mrs. George was sued as the heir and devisee of Brooks, and not as the devisee of Pendegrast, and the judgment was rendered and execution sued out against her as the heir and deviseé of Brooks. She was apprised by the suit, that the estate devised to her by Brooks, or cast upon her by descent from him, was sought to be subjected, but could scarcely have been apprised that the land in contest, which was devised to her by Pendegrast and not by Brooks, was sought to be made liable, and might therefore, have been well deceived and misled as to the necessity of making defence. Besides, if she could have been apprised that the land held by her, because it had been devised by Brooks to her devisor, was sought to be made liable, the judgment does not embrace in its terms land devised by Pendegrast to her, but land devised by Brooks and such only could be levied on. If she had derived title to the land by deed of bargain and sale from Pendegrast, it could not have been sold under an execution issuing on a judgment, which, by its terms, embraced estate only which descended to or was devised to her by Brooks. Though as devisee or fraudulent purchaser, the estate might be subjected to the payment of the debts of the original devisor, it could certainly not be subjected in either case, in this form of proceeding and under this form of judgment.

Lands devised “/'[he Oianeeidebts of the teshands of any oonsideraIion°lU Robinson and Johnson for plaintiffs: Loughborough for defendants.

She was properly made a a party to the suit as heir, of Brooks, as a remote heir may be joined with an immediate heir, all being heirs of the propositus. • She could not therefore have abated the suit;’ and failing to plead, judgment was properly rendered against her, but could only be levied upon lands descended to her from Brooks or devised to her by him.

The statute of fraudulent conveyances, Stat. Law, supra, declares void devises only as to creditors. They can be avoided by the creditor only, but until they are avoided 'they are valid, and if the'land devised be devised to another, the statute has not provided the remedy to pursue it in the hands of the second devisee at law.

But as land here is made liable for the payment of debts, there can be no doubt that in Chancery it may be pursued in the hands of any holder without consideration, whether he claims by gift or devise: Couchman’s heirs vs O’Bannon, 1 Marshall, 387; Cox’s heirs vs Strode, 2 Bibb, 273; 3 J. J. Marshall, 40, and especially, Buford vs Pawling’s executors, &c. 5 Dana, 277-8.

We are, therefore, of opinion that the instruction of the Circuit Court was proper, and the judgment is affirmed with costs.