Den on demise of the heirs of Williams v. Askew, 6 N.C. 28, 2 Mur. 28 (1811)

July 1811 · Supreme Court of North Carolina

6 N.C. 28, 2 Mur. 28

Den on demise of the heirs of Williams v. Askew.

Appeal from Hertford.

A judgment against the executor or administrator, creates no lien on lands descended or devised : Au'd lands bona fide aliened by the devisee, before scire facias sued out against him, are not liable for his testator’s debts.

Lewis Brown being indebted to John Armstead by bond, binding himself and “ his heirs,” died about the year 1805, having previously published in writing his last will and testament, and therein devised the lands mentioned in the declaration of ejectment, to Anthony Brown. Administration on the estate of Lewis Brown was granted with the will annexed, and suit ,being brought against the administrator upon the aforesaid bond, the administrator pleaded that “he had fully administered,” &c. which plea was found by the Jury to be true, and judgment having been obtained on the said bond in August, 1806, a writ of scire facias was issued against Anthony Brown, the devisee, to shew cause why the Plaintiff should not have judgment of execution against the lands devised to him by Lewis Brown. Judgment was rendered against Anthony Brown upon this scire facias, in August, 1807, upon which a writ of execution was issued, and the lands aforesaid devised to Anthony Brown, were seized by the Sheriff and sold to satisfy the said execution $ at which sale tlje Defendant Askew became the purchaser, and the Sheriff executed to him a deed for the land on tiie 25th November, 1808. Defendant set up title urnlei; this deed.

On the 23d December, 1806, subsequent to the rendering of the judgment against the administrator, but previous to the suing out of the scire facias aforesaid, Anthony Brown, the devisee, conveyed the lands, for a valuable consideration, to Richard Williams, under whom the lessors of the Plaintiff claim title. There was a verdict for the Plaintiff, and a rule for a new trial being granted, and on argument discharged by the Court, the Defendant appealed to this Court. -

Haxi, Judge,

delivered the opinion of the Court:

The only question in this case is, Whether the devisee, having sold the, lands in question to a bona fule purchaser for a valuable consideration, after process had been taken out against the administrator, with the will annexed, but before a sdre facias had issued against him, the devisee, the lands so sold should be subject to the testator’s debts. If any doubts existed on this subject before the act of 1789, oh. 39, that act lias removed them. The third section of that act declares, that “ wherever an heir or devisee shall be liable to pay the debt of his or her ancestor or testator, &c. and shall sell, &c. before action brought, or process sued out against him or her, that such heir or devisee shall be answerable for such debt to the value, of the. land so sold, &c.” It concludes by declaring, “ that the lands, &c. bona fide aliened before the action brought, shall not be liable to such execution.” This act embraces, not only heirs that were bound at common law, to pay off the debt of their-an-ees tors in consequence of lands descending upon them, and in consequence of being named in the obligations of their ancestors, but also heirs and devisees who are made liable by the statute law, to the simple contract debts of their ancestors. As to the first, there can be' no difficulty, because an action brought or process sued out to recover such debts, must be directly, and in tiie first place, brought against them: as to the latter, it is contended by some, that the action and process spoken of by the act, mca-i the commencement of the suit against the executor or administrator. As lias been already observed, whatever doubts may have existed upon this subject, in consequence of the act of 1784, they have been removed by the act of 1789, which speaks of “ actions brought, or process sued out, against him or her,” that is, the heir or devisee, as the case may be. The concluding part of the section exempts “ lands sold bona fide before- action brought,” from execution. When the act is speaking of the heir and devisee, and o" actions, &c. brought against them, it is surely a very forced construction to say, that il means actions brought against the. executors or administrators, when they are not mentioned in the act as connected with this subject. Such a construction has no reason to support it, and were it to prevail, bona fide sales, made by heirs or devisees who were ignorant even of any process being sued out against the. executor or administrator, would be rendered invalid : the process sued out against the executor or administrator, and the judgment rendered thereon, create no lien upon the real estate descended or devised. In the present case, Williams, the purchaser from the devisee, acquired the lands honestly ; his title is therefore good. Judgment must be entered for the Plaintiff, and the rule for a new trial be discharged.