Richardson, Adm'r. v. Peterson

Superior Court of Delaware

Richardson, Adm'r. v. Peterson

2 Del. 366

DecidedJuly 5, 1838

StatusPublished

This text of 2 Del. 366 (Richardson, Adm'r. v. Peterson) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Richardson, Adm'r. v. Peterson, 2 Del. 366 (Del. Ct. App. 1838).

Pincite

Opinion

By the Court:

J. M. Clayton, Chief Justice.

It appears from the record that *368 Thomas Vandever, the executor of John Vandever, deceased, is a party to this suit, and that judgment has been entered against him and two other terre tenants.

R. H. Bayard, for plaintiff. J. A. Bayard, for defendant.

We are of opinion that there is no ground for a legal presumption of payment of the judgment on the part of Peter Vandever from the lapse of time. The executor was the proper person to pay the judgment. The land of the debtor was a fund in his hands for pay. ment of the judgment, and the repeated acknowledgments and partial payments by the executor (to say nothing of the vice comes entered on the record) rebut any legal presumption of satisfaction made by him. Undoubtedly an executor cannot confess a judgment in an ordinary suit for a debt due from his testator, so as to bind the land in the hands of the heir or devisee, for the statute requires an award of referees or the verdict of a jury to create a new lien on the land of the deceased. But in this case the original judgment was a lien in the lifetime of the deceased; and if the executor has wasted the estate by these payments, or wrongfully acknowledged the judgment to be in force, he is answerable for it; but there can be no reason why his acts shall not be held all sufficient to keep alive the debt. Were it otherwise, no executor could by payment of interest or part payment of a judgment, save the estate of his testator from a ruinous sale by the creditor. The creditor could grant no indulgence although applied to by the trustee appointed by law to protect the assets, aided by part payments and promises to discharge the whole debt.

In the present case, therefore, we give judgment for the plaintiff; but we think it not amiss to add, that such a judgment is not necessary to authorize a sale of land in the hands of a devisee or heir. In that case, a judgment against the executor or administrator would be sufficient to justify a sale of all the lands of the deceased for the payment of a debt secured, as this was, by judgment in his lifetime.

Judgment for plaintiff,

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court:

J. M. Clayton, Chief Justice.

It appears from the record that *368 Thomas Vandever, the executor of John Vandever, deceased, is a party to this suit, and that judgment has been entered against him and two other terre tenants.

R. H. Bayard, for plaintiff. J. A. Bayard, for defendant.

We are of opinion that there is no ground for a legal presumption of payment of the judgment on the part of Peter Vandever from the lapse of time. The executor was the proper person to pay the judgment. The land of the debtor was a fund in his hands for pay. ment of the judgment, and the repeated acknowledgments and partial payments by the executor (to say nothing of the vice comes entered on the record) rebut any legal presumption of satisfaction made by him. Undoubtedly an executor cannot confess a judgment in an ordinary suit for a debt due from his testator, so as to bind the land in the hands of the heir or devisee, for the statute requires an award of referees or the verdict of a jury to create a new lien on the land of the deceased. But in this case the original judgment was a lien in the lifetime of the deceased; and if the executor has wasted the estate by these payments, or wrongfully acknowledged the judgment to be in force, he is answerable for it; but there can be no reason why his acts shall not be held all sufficient to keep alive the debt. Were it otherwise, no executor could by payment of interest or part payment of a judgment, save the estate of his testator from a ruinous sale by the creditor. The creditor could grant no indulgence although applied to by the trustee appointed by law to protect the assets, aided by part payments and promises to discharge the whole debt.

In the present case, therefore, we give judgment for the plaintiff; but we think it not amiss to add, that such a judgment is not necessary to authorize a sale of land in the hands of a devisee or heir. In that case, a judgment against the executor or administrator would be sufficient to justify a sale of all the lands of the deceased for the payment of a debt secured, as this was, by judgment in his lifetime.

Judgment for plaintiff,

Cite This Page — Counsel Stack

Bluebook (online)

2 Del. 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-admr-v-peterson-delsuperct-1838.