decided, that notwithstanding these objections, the bill in equity wiil be —and decreed for the complainant. He raid, it is suiffcieut for the plaintiff that his execution was. returned — -i-nothsng to be found, lie. need make no further, proof. Possibly he might sue the heir open the bond. He imla-iu, perhaps, by proceeding against the repiesentatives of the ■w* sting executor, recover 5 btit he would meet with great difficulties in that way, if not be finally defeated: And why take, that course, when there is one more near and plain than the-one he has taken. There can be no doubt but that this, court han ■jurisdiction over the cause. The will directs the executors to. sell the lauds for the payment of debts; It is a trust in them, and this comí is properly called on to enforce the executioa, tlnueojU
Smith v. Heirs, Devisees & Legatees of Caswell, 3 N.C. 285, 2 Hayw. 285 (1803)
Smith vs. The heirs, devisees and legatees of Richard Caswell.
TTPON the bill, answers and evidence, the case ¡appeared to be — -that the testator by his will, charged his real estate wuh the payment of his debts, and authorised a sale by Lis crecutojc, !b case it should be necessaiy.
Smith obtained judgment at law in this court, in September ierra, 3 792, for about seven hundred pounds, with Ely of execution for six months. At that time the executor bad F.;-'ois to the amount of eight thousand, or nine thousand dollars. Era-fore the six months were expired, other judgments wesc ob-vr.rv A The largest of th^se, to the amount of fee Luacred Cshd! íarty-ore pounds, the executors purchased, UAcer i" rrara *286executions, part of the property w-is sold ; and in 1796, a sa:« was made by the sheriff to satisfy the execution of five hundred r od forty-one pounds. Before the expiration of the six months,, the property was removed into another county, and a sale was' attempted afterwards to satisfy the plaintiff’s execution ; but the' executor and one of the heirs, now a defendant, drove away the bidders, and a sale was postponed, /¿'ter this tjme, the proper-, ty could not be found by the sheriff.
The plaintiff’s counsel insisted that the bill tyas a proper on.^ in niel or the execution j for the lands couli not be come at aj law, since although they were made assets by the will in the-hauds of the executor, they could not be sold by a common ky execution:; neither could they be sold by a sci. fa. to.be issued, upon this judgment: the executor had not pleaded fully administered. v
For the defendant ii was argued,
that the executor was liable.M be proceeded against, as for a der.zstuvrt, and should be resorted, ?.-) before recourse could be had to the lands. Indeed the heirs-,’ cannot be p'-oceed*'! against at all in equity, because the de~ íu.iíTVK.y of ansrtr. v-tza occascioned by the delay of execution which the- cicdisor consented to. It is the loss which took place ft: consequence of this delay, that lias forced the plaintiff to at-tc-icpc a recovery against the heirs. Fart of this, property was. - not sold dll V/9€v 'Fhe plaintiff’s execution boie test before sc--verr.l others under which it was sold. Secondlythe plaintiff tan yet have remedy at law, by an action of debt on the bond, against the heirs, if they were liable to the debt under the circumstances of this case. Thirdly : the plaintiff can have remedy at law, by proceeding against tire exccutois or the representatives of the executor, who it it said, is now dead.