Tuck v. . Walker

11 S.E. 183, 106 N.C. 285

Opinion

Avery, J.

after stating the facts: When it becomes necessary to sell the real estate of a decedent to make assets, The Code, § 1446 provides, in explicit terms, that the Court may decree a sale of “all real estate that deceased may have conveyed with intent to defraud his creditors, and all rights of entry and rights of action, and all other rights and interests in lands, tenements or hereditaments, which he might devise, or by law would descend to his heirs,” and the language has been sp construed by this Court. Mannix v. Ihrie, 76 N. C., 299; Heck v. Williams, 79 N. C., 437.

It is well settled that, though there may be unsatisfied judgments constituting a lien upon the land of a debtor, when he dies the judgment creditor is not allowed to sell it under execution, but the administration of the whole estate is placed in the hands of the personal representative, who is required first to apply the personal assets in payment of the debts, and if they prove insufficient, then the statute prescribes how the land may be subjected and sold so as to avoid a needless sacrifice by selling any of it for cash, or a greater quantity at all than is required to discharge the indebtedness. The Code, §§ 1436 to 1446; Sawyers v. Sawyers, 93 N. C., 325; Mauney v. Holmes, 87 N. C., 428; Lee v. Eure, 82 N. C., 428; Williams v. Weaver, 94 N. C., 134.

We conclude, therefore, that this action cannot be maintained except by the personal representative of W. H. Win-stead, or by making him a party, if he refuse to discharge the debt out of the personal assets, or to institute a proceeding to have the land sold to satisfy it. Wilson v. Pearson, 102 N. C., 290.

There is error. Judgment reversed.