Smith, 0. J.,
(after stating the case). The right to bring this action accrued to the plaintiff on his appointment to office, on December 23d, 1880, and the action was begun on December 2d, 1881, less than a year afterwards; so it is not barred by the statute of limitations as against the removed executor, according to the rulings in Lawrence v. Norfleet, 90 N. C., 533, and Worthy v. McIntosh, Ibid., 536.
As, however, this defendant has no property out of which a recovery against him for waste and mismanagement of the trust estate could be satisfied, the recourse to the devised land is the sole remedy open to the creditors. That the law does allow access to the real estate of the deceased debtor under such circumstances, is decided in Badger v. Jones, 66 N. C., 305; Latham, v. Bell, 69 N. C., 135; and Blount v. Pritchard, 88 N. C., 445.
If, however, the statutory bar interposes to obstruct the successful prosecution of these claims, and this defence to the action is open to the devisees and owners of the real estate, then in the absence of any definite ascertained indebtedness requiring a sale of the land, a license to make the sale ought not to be granted to the administrator, at least until the controversy about- the debts shall be settled and decided. [384] The defendants insist that the claims, if otherwise capable of being enforced, are barred by the lapse of time and long delay, and the Judge, concurring in the sufficiency of the defence, rendered judgment against the plaintiff, and he appealed.
1. The first of the disputed claims, that of Eli Bumble, may be left out of view in this inquiry, since it is depending, undetermined and resisted. As it may not be established, it cannot be the basis of a proceeding against the land, at least until it is recovered.
2. The judgment rendered in favor of R. M. Norment, at May Term, 1887, although upon a cause of action accruing on February 15, 1857, and prosecuted first against the executor and then against the administrator, conclusively settles an indebtedness existing before this action was begun, and its validity established after a protracted litigation. This debt must be paid for aught shown in the record, and is entitled to satisfaction out of the real estate. This alone is sufficient to reverse the judgment and dispose of the appeal, and we should pause to proceed further but that the different claims will, under the ruling, have to be decided when the fund is to be distributed, and should be before the sale, in order that the sum to be raised may be definitely ascertained.
3 — 6. The next four, belonging respectively to James A. Phillips, D. F. Edmonds, Augustus Smith and D. Cromartie, were reduced to judgments against the executor in the first two months of the year 1873, and in their demands against the real estate are essentially the same.
The causes of action are merged in the judgments, and hence come under the new statute of limitations, and the seven years elapsing since, before the beginning of the present suit, would effectually obstruct a recovery alone considered, according to the cases already cited. Lawrence v. Norfleet, Worthy v. McIntosh, supra, and Bevers v. Park, 88 N. C., 456.
[385] The last decides that a judgment recovered against an administrator upon a cause of action, which, but for such judgment, would be barred, cannot be maintained against the statutory bar set up by the heirs to a proceeding instituted to sell the descended lands. The ruling is somewhat restricted in the subsequent case of Speer v. James, 94 N. C., 417, so far as it affects the force and effect of the judgment rendered against the personal representative; but it supports the proposition that where the statutory bar would be available to him in protecting the personal, so it will be to the heir in protecting the real estate, against the demand of a creditor. Syme v. Badger, 96 N. C., 197; Andres v. Powell, 97 N. C., 155. Bevers v. Park differs only in this particular, that in it the administration was granted after July 1,1869, while in that before us, the letters testamentary issued before that date, and this brings us to an examination of what is supposed to be conflicting legislation, found in the Code of Civil Procedure and in the Acts subsequently passed regulating the administration and settlement of the estates of deceased persons, which are now associated in The Code, chapter 33, under the title “ Executors and Administrators.”
The first enactment introducing radical changes in the law, and which took effect in July, 1869, was passed and ratified on April 6th preceding, and was followed by an amendment, ratified on March 1st of the next year, confining its operation to estates whereof original administration shall have been granted since July 1st, 1869. It further declares, that “ all estates whereon administration was granted prior to the said first day of July, one thousand eight hundred and sixty-nine, shall be dealt with, administered and settled according to the law as it existed just prior to the said date, and it is hereby declared that such was the true intent and meaning of said act” (the act of 1869), with a proviso, “ that nothing herein contained shall be construed to prevent the application of said act, so far as it relates only to the Courts [386] having jurisdiction of any action or proceeding for the settlement of an administration, or to the practice or procedure therein.” The Code, § 1433.
Again, at the session of 1871-'72, was passed “an act to prescribe the practice and procedure in actions by creditors ■of deceased persons against their personal representatives,” Ch. 213, which, as the title imports, undertakes to regulate the proceeding to be pursued by creditors in bringing about a settlement of the estate and of their claims against it, of which § 29 declares, that the “ act shall apply only to cases where the grant of letters of collection, or of probate, or of administration, shall have issued on or after the first day of July, one thousand eight hundred and sixty-nine.”
An amendment was made to this section by the act of March 3d, 1873, Ch. 179, by adding the words, "except in cases of administration de bonis non upon estates where the former letters of administration or letters testamentary were granted prior to the first day of July, one thousand eight hundred and sixty-nine, in all which cases estates shall be administered, closed up and settled according to the law as it existed just prior to the first of July, one thousand eight hundred and sixty-nine.”
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Smith, 0. J.,
(after stating the case). The right to bring this action accrued to the plaintiff on his appointment to office, on December 23d, 1880, and the action was begun on December 2d, 1881, less than a year afterwards; so it is not barred by the statute of limitations as against the removed executor, according to the rulings in Lawrence v. Norfleet, 90 N. C., 533, and Worthy v. McIntosh, Ibid., 536.
As, however, this defendant has no property out of which a recovery against him for waste and mismanagement of the trust estate could be satisfied, the recourse to the devised land is the sole remedy open to the creditors. That the law does allow access to the real estate of the deceased debtor under such circumstances, is decided in Badger v. Jones, 66 N. C., 305; Latham, v. Bell, 69 N. C., 135; and Blount v. Pritchard, 88 N. C., 445.
If, however, the statutory bar interposes to obstruct the successful prosecution of these claims, and this defence to the action is open to the devisees and owners of the real estate, then in the absence of any definite ascertained indebtedness requiring a sale of the land, a license to make the sale ought not to be granted to the administrator, at least until the controversy about- the debts shall be settled and decided. [384] The defendants insist that the claims, if otherwise capable of being enforced, are barred by the lapse of time and long delay, and the Judge, concurring in the sufficiency of the defence, rendered judgment against the plaintiff, and he appealed.
1. The first of the disputed claims, that of Eli Bumble, may be left out of view in this inquiry, since it is depending, undetermined and resisted. As it may not be established, it cannot be the basis of a proceeding against the land, at least until it is recovered.
2. The judgment rendered in favor of R. M. Norment, at May Term, 1887, although upon a cause of action accruing on February 15, 1857, and prosecuted first against the executor and then against the administrator, conclusively settles an indebtedness existing before this action was begun, and its validity established after a protracted litigation. This debt must be paid for aught shown in the record, and is entitled to satisfaction out of the real estate. This alone is sufficient to reverse the judgment and dispose of the appeal, and we should pause to proceed further but that the different claims will, under the ruling, have to be decided when the fund is to be distributed, and should be before the sale, in order that the sum to be raised may be definitely ascertained.
3 — 6. The next four, belonging respectively to James A. Phillips, D. F. Edmonds, Augustus Smith and D. Cromartie, were reduced to judgments against the executor in the first two months of the year 1873, and in their demands against the real estate are essentially the same.
The causes of action are merged in the judgments, and hence come under the new statute of limitations, and the seven years elapsing since, before the beginning of the present suit, would effectually obstruct a recovery alone considered, according to the cases already cited. Lawrence v. Norfleet, Worthy v. McIntosh, supra, and Bevers v. Park, 88 N. C., 456.
[385] The last decides that a judgment recovered against an administrator upon a cause of action, which, but for such judgment, would be barred, cannot be maintained against the statutory bar set up by the heirs to a proceeding instituted to sell the descended lands. The ruling is somewhat restricted in the subsequent case of Speer v. James, 94 N. C., 417, so far as it affects the force and effect of the judgment rendered against the personal representative; but it supports the proposition that where the statutory bar would be available to him in protecting the personal, so it will be to the heir in protecting the real estate, against the demand of a creditor. Syme v. Badger, 96 N. C., 197; Andres v. Powell, 97 N. C., 155. Bevers v. Park differs only in this particular, that in it the administration was granted after July 1,1869, while in that before us, the letters testamentary issued before that date, and this brings us to an examination of what is supposed to be conflicting legislation, found in the Code of Civil Procedure and in the Acts subsequently passed regulating the administration and settlement of the estates of deceased persons, which are now associated in The Code, chapter 33, under the title “ Executors and Administrators.”
The first enactment introducing radical changes in the law, and which took effect in July, 1869, was passed and ratified on April 6th preceding, and was followed by an amendment, ratified on March 1st of the next year, confining its operation to estates whereof original administration shall have been granted since July 1st, 1869. It further declares, that “ all estates whereon administration was granted prior to the said first day of July, one thousand eight hundred and sixty-nine, shall be dealt with, administered and settled according to the law as it existed just prior to the said date, and it is hereby declared that such was the true intent and meaning of said act” (the act of 1869), with a proviso, “ that nothing herein contained shall be construed to prevent the application of said act, so far as it relates only to the Courts [386] having jurisdiction of any action or proceeding for the settlement of an administration, or to the practice or procedure therein.” The Code, § 1433.
Again, at the session of 1871-'72, was passed “an act to prescribe the practice and procedure in actions by creditors ■of deceased persons against their personal representatives,” Ch. 213, which, as the title imports, undertakes to regulate the proceeding to be pursued by creditors in bringing about a settlement of the estate and of their claims against it, of which § 29 declares, that the “ act shall apply only to cases where the grant of letters of collection, or of probate, or of administration, shall have issued on or after the first day of July, one thousand eight hundred and sixty-nine.”
An amendment was made to this section by the act of March 3d, 1873, Ch. 179, by adding the words, "except in cases of administration de bonis non upon estates where the former letters of administration or letters testamentary were granted prior to the first day of July, one thousand eight hundred and sixty-nine, in all which cases estates shall be administered, closed up and settled according to the law as it existed just prior to the first of July, one thousand eight hundred and sixty-nine.”
These provisions will be found in The Code, §§ 1433 and 1476 and connecting sections. It will be noticed that this new legislation has reference solely to matters connected with the administration and settlement of deceased persons’ estates, and is not inconsistent with the provision in the superseding statute of limitations, which governs only in cases where the right of action accrues subsequent to the specified date, and was intended to harmonize the new legislation with the new practice. It does not profess to interfere with the statute, which discriminates between actions the ■right to bring which existed anterior to the adoption of the 'Code of Procedure, and those that arose afterwards; and to render the enactments consistent with each other, and give [387] effect to both, we must except from the operation of those which relate to the subject of administration so much of that declaring the application of the superseding limitations to the kind of actions mentioned. Such has been the interpretation in cases heretofore adjudged, and such we are constrained to accept as a just exposition of the law, in the absence of any intimation of an intention to interfere with the operation of the act of limitations. Moreover, the time in which creditors are allowed to bring suit does not enter into the mode of administering the estates of deceased property owners by representatives, which it was the purpose of the legislation to regulate by the displacing statutes, the scope and operation of which will be plainly seen in examining their provisions. But while the bar would be in the way if there had been one continuous administration by the same person, it has been broken by the removal of the executor, and interrupted in its course for more than two years, during which the judgment eould.not be enforced by action of the creditor, and in less than one year after the appointment of the plaintiff as administrator this action was brought, and arrests the running of the statute.
It is declared in § 164 of The Code, that “ if a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.”
This clause uses language appropriate to actions against a debtor personally and not barred by the statute at the time of his death, and not verbally to a case where one representative dies, or is removed, and another succeeds to his place and carries on the work of administration left unfinished, yet the analogy is so complete, and the spirit if not the letter of the act, reasonably interpreted, so closely applicable to [388] the present facts, that we feel constrained to bring them under its provisions, so as to embrace them. The year prolonging the period within which the action may be brought, to-wit: from the plaintiff’s appointment on December 23d, 1880, to December 2d, 1881, the time of beginning the suit, had not expired by twenty-one days, and thus these .judgments escaped the bar, and may be enforced against the debtor’s lands in the hands of the heirs, unless alienated in pursuance of section 1442 of The Code, in which case the proceeds of the sale are in place of the land sold.
The same disposition must be made of the several judgments in favor of Mary A. Barnes, Wiley B. Fort and James McHargue.
The judgments recovered by John Smith must be excluded, as they were rendered at August Term, 1870, of the Superior Court of Robeson, and the seven, and even ten years, had passed before this suit, and the shorter period even before the removal of the executorso they are not protected by the proviso mentioned.
■ While the seven years’ limitation is dependent upon a compliance with the condition that due advertisement is made as required by law, this prerequisite must be confined to cases of original administration granted, and cannot apply to administrations de bonis non where the former administrator or executor (as found in this case) has complied with all the requirements of the law then in force, for such administrator de bonis non but takes up the broken thread and carries out an interrupted and incomplete administration. The two constitute a single administration of the estate.
We must therefore overrule the decision in the Court below, and reverse the judgment for the error assigned, to the end that the cause may proceed in the Court below in accordance with this opinion.
Error.