Spaight v. Heirs of Wade

6 N.C. 295

Opinion

Haii, Judge,

delivered the opinion of the Court:

The proper judgment to be entered against heirs, under the -ct of 1784, eh. 11, sec. 2, is against the lands descended in the hands of the heirs, although they re fuse or omit to point out the lands that have descended. The act directs a sci. fa. to issue against the heirs, to shew cause why execution should not issue against the real estate of the deceased debtor, and then declares, that “if judgment shall pass against, the heirs or devi-sees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs, &c.” The act of 1789, ch. 39, sec. 3, declares, that “ where an heir or devisee shall be liable to pay the debt of an ancestor or testator, and shall sell, alien, or make over the land which makes them liable to such debt, before action brought or process sued out against them, such heir or devisee shall be answerable or such debt to the value of suchland so sold, &c.” Under this act, where it appears that the lands have been bona fide sold by the heir or devisee, before sd.fia. sued out, the debt for which the land would have been otherwise liable, becomes their own debt, and judgment must be entered against them, as if sued at common law, and they had omitted to point out the lands descended. Un.dci‘ these two acts, the lands descended or devised, are liable to the demands of creditors, except when bona fide sold, in which case, the hdr or devisee is liable in propria persona, for the amount of such sales. No mischief can arise from such a construction : all lands will be liable under such judgment, that ought of right to go in discharge of an honest debt, due by the ancestor or testator. If they have been bonafide sold before the sci. fa. issued, they are not liable $ if fraudulently sold, and in point ol fact, not in the hands of the heir or devisee, they are stil; liable to the demands of Creditors. If they have been sold to satisfy another debt of the ancestor under a prior lien, they of course are not liable $ nor would they be if bonafide sold to satisfy the debt of the heir or devisee ; in which case the heir or devisee, under the spirit of the act of 1789, is as if he himself liad aliened them. Such judgments will not affect the rights of third persons not par- tics to them. When executions issue on them, Plaintiffs must, at their peril, sell such lands a.° are liable to their demands ; and all lands which have descended, or have, been devised, are so liable, unless they have legally passed into other hands. The plea states, that the Defendant had nothing’ by descent at the time the sci. fa. issued. If he ever had any lands by descent or devise, it has not, been shewn either by him or the Plaintiff what has become of them, so as to make it necessary to render judgment accordingly j to give judgment against the heirs, for instance, in case of alienation by him. The Plaintiff replies, that lands had been devised, which is admitted by the plea ; if so, he is entitled to judgment and execution against them.