6 N.C. 295 | N.C. | 1813
Upon the due return of this process William Wade, Judith Wade, Sally Wade and Polly Wade appeared by their guardian, and pleaded several pleas, but afterwards withdrew them, and judgment was entered against them, as well as Thomas Vining and wife, by default; but upon condition that said William, Judith, Polly and Sally should not be liable for any estate which had come or should come to them, other than such as should be derived by devise or descent from Thomas Wade the elder, or Thomas the younger, or Holden.
Joshua Prout appeared for himself and wife, as devisees of Thomas Wade, the elder, and pleaded, "nothing by devise on the day of the sci. fa.purchased." The plaintiff's testator replied, "that lands were devised to Sarah by Thomas Wade, the elder"; upon which issue was joined by demurrer.
The said Joshua Prout also pleaded as terre tenant, that the lands of which he was in possession, not mentioned in the *213 devise to Sarah, his wife, were never bound by any judgment against Thomas Wade, the devisor; upon which issue was joined by demurrer.
The death of the plaintiff's testator had been suggested, and the plaintiff duly admitted to revive and prosecute. And upon this state of the pleadings and facts the case was submitted to this Court. The proper judgment to be entered against heirs, under Laws 1784, ch. 11, sec. 2, is against the lands descended in the hands of the heirs, although they refuse or omit to point out the lands that have descended. (297) The act directs a sci. fa. to issue against the heirs to show cause why execution should not issue against the real estate of the deceased debtor, and then declares that "if judgment shall pass against the heirs or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs, etc." Laws 1789, ch. 39, sec. 3, declares that "where an heir or devisee shall be liable to pay the debt of an ancestor or testator, and shall sell, alien or make over the land which makes them liable to such debt, before action brought or process sued out against them, such heir or devisee shall be answerable on such debt to the value of such land so sold, etc." Under this act, where it appears that the lands have been bona fide sold by the heir or devisee, before sci. fa. sued out, the debt for which the land would have been otherwise liable becomes their own debt, and judgment must be entered against them, as if sued at common law and they had omitted to point out the lands descended. Under these two acts the lands descended or devised are liable to the demands of creditors, except when bona fide sold, in which case the heir or devisee is liable in propria persona, for the amount of such sales. No mischief can arise from such a construction; all lands will be liable under such judgment that ought of right to go in discharge of an honest debt due by the ancestor or testator. If they have been bona fide sold before the sci. fa. issued, they are not liable; if fraudulently sold, and, in point of fact, not in the hands of the heir or devisee, they are still liable to the demands of creditors. If they have been sold to satisfy another debt of the ancestor under a prior lien, they of course are not liable; nor would they be if bona fide sold to satisfy the debt of the heir or devisee; in which case the heir or devisee, under the spirit of the act of 1789, is as if he himself had aliened them. Such judgments will not affect the rights of third persons not parties to them. When executions issue *214 (298) on them, plaintiffs must, at their peril, sell such lands as are liable to their demands; and all lands which have descended or have been devised are so liable, unless they have legally passed into other hands. The plea states that the defendant had nothing by descent at the time the sci. fa. issued. If he ever had any lands by descent or devise it has not been shown either by him or the plaintiff what has become of them, so as to make it necessary to render judgment accordingly; to give judgment against the heirs, for instance, in case of alienation by him. The plaintiff replies that lands had been devised, which is admitted by the plea; if so, he is entitled to judgment and execution against them.
