Note.-The statute of 5th Geo. 2, c, 7, makes lands in this State liable to thefi.fa. execution, and the case of Bragner v. Langmead, 7 T.R. 20, shews, that if a Defendant dies after the commencement of a term, a judgment obtained on any day of that term, will relate back to the fii4t moment of the term, and an execution may issue upon the judgment, and be levied upon the property of the deceased without making his representatives parties : a fortiori, a judgment and execution before the death, will be proper without a sci. fa. to the representatives-Vide Ben on dem. of Baker v. Webb, post 43. Bell v. Hill, post 72. Jones & others v. Edmonds, 3 Murphey 43.
Baker v. Long, 2 N.C. 2, 1 Hayw. 2 (1790)
Oct. 1790
·
North Carolina Superior Court
2 N.C. 2, 1 Hayw. 2
HALIFAX
OCTOBER TERM, 1790
Baker v Long.
Where there is judgment and execution against the ancestor in his" lifetime, no sci. fa. is necessary against heirs or devisees. — The demurring of the parol does not hold in this State.
The lands were devised after payment of debts to the Plaintiff, and there was judgment against the ancestor in his lifetime. It was adjudged no sci.fa. was necessary in order to affect the lands in the hands of the heir or devisee after the, death of the ancestor or devisor, because the lands never descended; and if they had, it was cum onere of the judgment, and the sci. fa. is only necessary where a new party is to be charged ; but in this case, execution was taken out in the lifetime of the ancestor, and the Court said, that attached upon the land and went with it to whoever it came. Also, per Wn> xiams & SpeNcer, the demurring of the parol had its origin in feudal principles, and does not apply here.