after stating tbe case. Tbe Bruce judgment bad been in force 7 years, 5 months and 11 days, at tbe death of Bryan, and 9 years, 7 months and 7 days at tbe commencement of tbis action, excluding tbe time tbe statute was suspended, by reason of tbe allotment of tbe homestead. Tbe lien of tbe judgment, being in force at tbe time of tbe commencement of tbis action, tbe administrator was properly directed to pay out of tbe proceeds of tbe sale tbe liens in tbe order of their priority.
As to tbe Shackleford judgments, by virtue of their docketing in tbe Superior Court, they became judgments of that court for tbe purposes of lien and execution for ten years from tbe date of docketing. From tbe date these judgments were docketed, 9 January, 1888, to tbe allotment of tbe homestead, 26 *430September, 1895, was 7 years, 8 months and 19 days. From the date of Bryan’s death, 11 August, 1906, to 4 November, 1908, when Shackleford was made a party to this action by the court was 2 years, 2 months and 24 days, making a total of 9 years, 11 months and 13 days, being less than the 10 years, which was necessary to destroy the lien. When a summons issues the statute is suspended though the service is later. So when the court made Shackleford a party, and directed notice to be issued to him, the statute was suspended just as if a summons had been issued.
This was an action in the nature of a creditor’s bill to compel the administrator to sell the homestead, to make assets, to pay judgments. Oldham v. Rieger, 148 N. C., 548; Hancock v. Wooten, 107 N. C., 19. When the court took control of the property through this proceeding, the lien of the Bruce judgment was still in force, and when the court made Shackleford a party, his lien was also still valid, and the court will apply the proceeds in the order of the priority of the liens in force. This is not an action upon a judgment, neither is it an action to enforce the lien of a judgment, as in Lilly v. West, 97 N. C., 276. But here the court having taken charge of the res, the homestead land, and ordered it to be sold, will direct the proceeds to be applied in the order of their priority. By virtue of this proceeding, the plaintiff was debarred from enforcing his judgment by execution, as was also Shackleford from the date he was made a party to the proceeding, therefore, the statute did not run against him after those dates. Adams v. Guy, 106 N. C., 275.
The administrator is the proper party to sell the homestead land for distribution among judgment creditors. Blythe v. Gash, 114 N. C., 659; Springs v. Pharr, 131 N. C., 191. Revisal, 87 (5) directs the order in which the debts of the decedent shall be paid by his representative. In class 5, the order of payment is thus prescribed: “Judgments of every court of competent jurisdiction within this State, docketed and in force, to the extent to which they are a lien on the property of the deceased, at his death.” The priority among judgment creditors is to be determined as they exist, at the death of the debtor, *431and tbe liens remain unaffected by tbe lapse of time thereafter, wben, as here, tbe creditor is debarred of an opportunity to enforce bis claim by execution. Mauney v. Holmes, 87 N. C., 428; Daniel v. McLaughlin, ib., 433; Galloway v. Bradfield, 86 N. C., 163.
G. M. T. Fountain & Son for appellant.
W. 0. Howard and F. S. Spruill contra.
There is a broad distinction between tbe rules governing tbe application by a sheriff of funds raised by sale under several executions, one or more of which have become barred before tbe sale, Pipkin v. Adams, 114 N. C., 201, by tbe expiration of tbe judgment lien upon which tbe execution issued, and tbe distribution of assets by a personal representative, which, as was held in Galloway v. Bradfield, supra, tbe administrator must pay according to tbe priorities at date of death of debtor. Tbe defendant Fountain is estopped from setting up tbe expiration of tbe liens, which were valid wben tbe property was taken charge of by tbe administrator, under tbe orders of tbe court. Otherwise, bis mere resisting tbe judgment to sell would make tbe other liens invalid, and bis own lien good. When execution issues and tbe ben of tbe judgment expires before tbe sale this is by operation of law and not caused by tbe delay resulting from tbe resistance of tbe other party.
Tbe judgment below is
Affirmed.
Appeal by G. M. T. Fountain.
Tbe opinion of tbe court in tbe appeal of tbe Town of Tarboro in this action is decisive of tbe appeal of tbe defendant Fountain and tbe judgment of tbe Superior Court as to said Fountain, is also
Affirmed.