The lands in Virginia, which descended to Elizabeth and Mary, the heirs of H. Haynes, were subject to the payment of his debts due by specialty, whereby he bound himself and heirs; and the heirs, having sold the lands and received the value of them, are liable to pay the complainants the amount of the money so received, notwithstanding the sale of the lands took place before the commencement of the action. We are therefore of opinion, that the decree as pronounced in the District Court is right, and ought to be carried into execution.
Hamilton v. Heirs & Executors Haynes, 1 N.C. 413, 1 Cam. & Nor. 413 (1802)
June 1802
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North Carolina Court of Conference
1 N.C. 413, 1 Cam. & Nor. 413
Archibald Hamilton & Co. versus The Heirs and Executors of Herbert Haynes.
The complainants filed their bill in the court of Equity for Halifax district, calling on the defendants to discover, what assets had descended and came to their hands and possession, respectively; and to account for the same. The cause was tried by judge Johnston, at October term, 1802, who decreed, “ that the defendants Spruce Macay and Elizabeth his wife, “ and Mary Haynes, the heirs of Herbert “ Haynes, pay to the plaintiffs, the sum of one “ thousand and fifty two pounds three shillings, " current money, being the amount of assets in “ their hands, as heirs to the said Herbert, for “ land situated in Virginia, which descended to “ them, and was sold by their agent."
The above decree was made, subject to the opinion of this court, on the question, whether lands in Virginia, which descended to the defendants Elizabeth and Mary, and were sold by them before the commencement of this suit in Equity, ought to be made liable to the payment of the plaintiffs’ debt: being due on a bond given by the father and ancestor of the said Eliza*414beth and Mary, whereby he bound himself and his heirs for the payment of the said debt.
Brown, for complainants—
If an heir sold lands descended before any action brought, the money was always assets in equity, Com. Dig. Chancery 2 G. 1. 1 P. W. 777. Coleman vs. Winch. And surely the authorities of Chief Baron Comyns and Lord Macclesfield, ought to be decisive 3 Term Report 64.
Even in 1 Vern. 282, the plea was over ruled and it does not appear what afterwards became of the suit. It is like many of Mr. Vernon’s cases, but a loose note hastily taken by a gentleman in the full tide of practice, and indiscreetly published by others after his death. But from the authority of the two distinguished Judges, who after that period presided in the two different Courts of Equity in England, we may safely take it, that the rule was fully settled as first above laid down; and it is, perhaps, owing to that circumstance, as well as to the interference of British statutes, that we meet with to little on the subject in the books.
I take it for granted, that no law of Virginia can be shewn barring a creditor of any remedy which before the settlement of that country, be had in England against lands, either in law or equity.
2. The case stated is, from inadvertency, incomplete, in not stating when the lands descended; but the bill charges that Herbert Haynes died (and of course the lands descended) in *415 1792: this statement is not denied in the answers, arid is, I believe correct, and therefore ought to be considered one of the facts constituting the case; and if so, then an act of the Virginia Legislature passed the 17th day of December, 1789, and printed in the revised code, page 53, decides the question at once, for section 6 is as follows: “ And be it further enacted, that where any heir at law shall be liable to pay the debt of his ancestor in regard of any lands, tenements or hereditaments descending to him, and shall sell, alien or make over the same, before any action brought, or process sued out against him, such heir shall be answerable for such debt or debts, in an action or actions of debt, to the value of the said lands so by him sold, aliened or made over, &c.”
The bill was properly brought whether the money was equitable or legal assets.