42 Miss. 417 | Miss. | 1869
delivered the opinion of the court.
This was an action of assumpsit instituted against the plaintiff in error by the defendant in error, upon two promissory notes
It is alleged in the declaration that the defendant in error is the holder and owner of the said notes; it is further alleged therein that the consideration of said notes is a house and lot sold by the Taylors to said Thoinas E. Buckingham, upon which the plaintiff in error was residing at the time of the institution of the suit.' ’
There was a judgment by default against the executrix of the said Thomas E. Buckingham, for the amount of the notes and interest.
To reverse this judgment the executrix has prosecuted this writ of error.
There are four assignments of error. The first and second' assignments we shall consider together, as they are substantially the same, the same questions being raised and presented in each; that the judgment by default against the plaintiff in error, so far as it directs the sheriff to levy upon the real estate' of the decéased — the lot said to be the consideration of the notes — was erroneous, because the heirs of Thomas E.' Buckingham were not made parties to the action at law, and that the proceedings, to sirbject the real estate, should have been in chancery.
On- the death of Thomas E. Buckingham, the real estate mentioned in the declaration as the consideration of the notes sued on, passed to the'heirs-at-law of the deceased.
They certainly could not be divested of that interest by a-proceeding at law against the executrix.
But it is insisted by counsel for the defendant in error, that-“no’property is exempt when the purchase-money forms in-whole or in part the debt on which the judgment is founded” (Revised Code, p. 530, art. 284) ; and therefore the recitation (complained of) in the judgment is correct.
This position is untenable in the case presented by the record.
If the judgment had been against the purchaser, Thomas E. Buckingham, he certainly could not set up the exemption of a homestead from execution, in the property constituting the consideration of the debt upon which this judgment was rendered;
For these reasons we think these assignments of error are well taken.
The third assignment of error is, that the judgmentis erroneous, because it is rendered against the plaintiff in error “ as executrix,” and the words “ that it be levied of the goods and chattels of the said Thomas E. Buckingham in the hands of the said M. A. Buckingham, executrix,” etc.
The judgment is against “ M. A. Buckingham, as executrix of the estate of Thomas E. Buckingham, deceased,” etc.
This judgment cannot be considered a judgment. against the plaintiff in error in her individual capacity; no execution could issue upon it against her personal or individual effects; it could only be levied upon the assets of the estate in her hands, this court having held s.ueh a judgment not to be erroneous. Howcott et al. v. Collins et al., 28 Miss. 398.
This omission of the clerk to make the proper addition to the judgment, even if it were sufficient cause for reversal, can be supplied here by amendment. Hill et al. v. Robeson, 2 S. & M. p. 541.
The fourth assignment of error is disposed of by the disposition of the first and second assignments of error, for the reasons given in our determination of the first and second assignments. The judgment must be reversed, and the proper judgment will be entered in this court against the plaintiff in error,-in her representative capacity, to be levied of the goods and chattels only of the testator, Thomas E. Buckingham, etc.