50 Miss. 194 | Miss. | 1874
delivered the opinion of the court:
In October, 1869, E. H. Hargrove recovered a judgment against Mary E. Baskin, administratrix of I. H. Baskin, deceased, for $1,026.20, upon which execution was issued and returned a nulla bona.” The original and amended bills against the administratrix and heirs of I. H. Baskin, deceased, allege that there is no personal property out of which the judgment can be satisfied ; there
The question is, whether a creditor, who has recovered judgment against the administratrix, and has exhausted the legal means to procure satisfaction out of the personal estate, can proceed directly by bill in chancery,' against the personal representative and heirs, to sell the lands and tenements to pay his own debt, or can such suit be sustained on behalf of himself, and others who may prove their debts, and contribute to the expenses of the suit.
Our statutes have made important changes in the common law, as to the liability of real estate for the debts of a testator, or intestate. Personal assets rested in the personal representative, and were the only fund liable to creditors, except the decedent had bound his heir by specialty. Such was the common law of England, until the statute of William and Mary, 3d and 4th chaps., 14. 47 George III, 1 George IV, and 1 William IV, subjected lands and tenements to the payment of debts generally, preserving, however, the right of'priority to the specialty creditors.
The provision of statute law with us is, “ the lands, tenements and hereditaments of the testator or intestate, shall also stand chargeable for the debts, over and above what the personal estate may be sufficient to pay.” “And maybe subjected to the payment of debts in the manner hereinafter directed.” Code 1871, § 1134. Full directions*for such proceedings are given in sections 1148, 1449. * * When the contingency shall have arisen, that is, the personal estate shall have been ascertained by the executor or administrator to be “ insufficient,” then he shall present a petition to the court for a sale of the land. The heir or devisee must be made a party, and may contest the relief sought, by showing that there are no valid subsisting debts, or that there were once sufficient personal assets which have been wasted by the executor
The theory of our statute is, that the real estate of a decedent shall be chargeable with the debts, in a certain manner. The act which imposes the burden, at the same time defines the mode by which it shall be realized. There never was power in the chancery court, under its equity powers, to reach the real estate of a debtor, except upon the predicate that the creditor had an equity in the form of a charge or incumbrance. If the “ charge ” in equity is created by statute with a mode of procedure clearly defined,-that remedy must be pursued. The creditor, by judgment against the persona] representative, acquires a lien on the assets in his hands, which may be satisfied by final process. As against the real estate, the judgment is no more efficient, conferring no greater privileges, than did the promissory note or bond upon which it may have been founded. Such judgment creditor has not advanced a right to subject the lands better than he had before he sued at law. Nor is he aided by the fact that the final process
When the legislature declares that lands and tenements shall be liable for debts, and lays down the mode of reaching and so applying them, such statutes being in derogation of the common law, should be strictly construed.
The arguments that stand in the way of the complainant are: That it is by virtue of the statute that real estate has been made assets for general creditors, and a specific mode defined by which the title of the heir may be withdrawn, and the land converted into money, and apportionment and distribution made among creditors. Such legislation being an abridgment of the rights of the heir as at common law, should be strictly construed.
The complainant has no specific equity upon the real estate which affects it, more than any simple contract creditor ; and there is no jurisdiction in a court of equity by virtue of its ordinary
The right of the chancery court to entertain a suit to sell lands to pay the creditors of a decedent is purely statutory, and must be invoked by the personal representative, who in the estimation •of the law is the trustee of the creditors, and under an official duty to interpose in their behalf whenever the contingency arises. For any failure or omission of duty in this behalf, he is amenable upon the suggestion of a creditor to the chancery court.
There is no other mode for a creditor, without judgment lien or .a specific equity or incumbrance, to reach the real estate of a decedent, except in the statutory mode appointed for dealing with •them as assets.
The decree is therefore affirmed.