Ferguson's Heirs v. Crowson

| Miss. | Apr 15, 1853

Mr. Justice Yerger

delivered the opinion of the court.

Although this bill is in artificially drawn, it presents substantially the case of a judgment creditor seeking to subject equitable assets of the debtor in payment of his judgment, after having exhausted all his legal remedies. The facts stated by the bill entitled complainant to the relief sought. It is said he should have sued out scire facias on the judgment against the heirs, and after reviving it, have proceeded to sell the land by execution at law. The bill shows, however, that Elijah Ferguson, the ancestor, never had the legal estate, and, consequently, had nothing which at law could have been sold in his lifetime. After his death, we do not think it was necessary to have.proceeded by scire facias to revive the judgment against the heirs, when the creditor did hot intend to resort to an execution at law, but only sought to reach an equitable interest in lands which had belonged to the ancestor in his lifetime, and descended to them as his heirs.- The scire facias to revive the judgment, is not necessary before proceeding by bill in chancery for this purpose. The heir can show in his defence to the bill every fact which on scire facias would have formed a good defence against reviving the judgment.

The plea of the statute of limitations, interposed by the defendants, was properly overruled by the vice-chancellor.

The twelfth section of the act of 24th February, 1844, (Hutch.. Co. 831,) cannot be made to apply to a case of this kind. ' The-period of time limited therein never begins to run until “ the-qualification of the executor, administrator, or other person-having management or charge of the estate.” In this bill it is charged, that no administration had ever been granted on the estate, and, therefore, the statute could not apply. It is probable, that the legislature, if its attention had been called to the fact, would have provided, that no suit to revive a judgment against the heir at law, or to subject equitable assets of the ancestor in his hands should be brought, after the expiration of four years from the death of the ancestor; but it is very clear, that the law has not been so made by the legislature, and the court have no power to extend a statute to a class of persons not-embraced by the act itself. To do so would be to make, not to declare, the law.

These views would lead us to affirm the decree on the plea of the defendants, if that plea had been for all of the defendants; but one of the defendants is.a minor, who, by the answer of the guardian ad litem, denies the allegations of the bill, andi calls for proof of them. In the record before us, there is no-proof that Moore recovered the judgment, as alleged, or that, any part of it is due, or that it had been assigned to complainant. The decree must, therefore,' be reversed, and the: cause remanded. ,