Bells v. Heirs of Robinson

1 Stew. 193 | Ala. | 1827

The CHIEF JUSTICE

delivered the opinion of the Court.

By the demurrer of the plaintiffs to the pleas, the scire facias which they have, sued out, is brought under our examination. At common law, a judgement against the personal representative does not charge the lands. They descend to the heir, and the personal representative has nothing to do with them. If the ancestor, by his ■ obligation bound his heirs, they could by action of debt be charged to the value of the lands descended. In England, if a judgement had been recovered against the ancestor, the lands which were liable to execution in his life time, may be made liable after his death, by sci. fa« against the heirs and terre tenants. Our statute of 1812, ^a gives to judgements and decrees a iien on lands, tenements, &c. and directs that the clerk shall frame the execution accordingly. But for debts, &c. for which judgement has not been obtained against the ancestor, the lands cannot be made liable to execution by judgement against the personal representative. Our statutes ^b have pointed out another mode for subjecting the lands to the payment of the debts. If the personal estate be insufficient, the administrator or executor shall make his report accordingly, and the land shall be sold by order of the Court. This course does not abridge the rights of creditors, for as the administrator cannot have fully administered, if on a deficiency of personal estate, he fails to make his report as required, so that the lands may be resorted to, the remedy is more ample than at common law. The judgement must be affirmed.

Sse Saund. 7. note 4, 9, note 8. 6 Bac. Abr. 115.

a Laws Ala. 309.

b Laws Ala. 327.