*1 TARBORO V. PENDER.

Wben tbe work has done been as in tbis intelligently case, we can see at a glance wbat we are exceptions asked on. pass are all at tbe end of tbe They grouped case on and con- numbered. We do not secutively bave to ransack tbe record to tbem. No assignments find of error could be made to possibly afford us any greater belp examining record tban those case.

Horas, J., concurs in tbis opinion.

TOWN OF al. TARBORO et v. JAMES PENDER et al.

(Filed November, 1910.) of Actions. —Liens—Homestead—Limitations In an action tbe administrator and beirs at law to sell assets, brought by tbe homestead of deceased to make the owner judgment Court, Superior appeared of a obtaioel in the it that judgment had not been in ten at the death of the action, or at homesteader the time of the commencement of this excluding suspended by the time the statute was reason of the judgment being allotment of homestead. the lien of the Held, action, in force at the time of the commencement of administrator it out of the priority, of the sale of the homestead in its order of statute was not bar. Docketing. 2. Same —Justice of the Peace — Court — of a of the docketed in the Court, for the of the lien on the lands of the court; becomes of the latter when docketing time from the homestead, of the allotment of the period elapsing added to time since the death bringing of the homesteader does exceed recovery, ten the statute of limitations does not bar judgment. destroy the lien of the Suspension—Process—Summons. 3. Limitations of Actions — When a summons issues at law administrator and heirs pay judgment to make assets to debt of the statute of summons; limitations is from the issuance of the

TABBOBO V. PENDER. creditor is made a to an action of this *2 character, bj’’ court, suspended, order of the statute is as if the issuance him of a summons. Judgments of Actions —Admin- —Homestead—Liens—Limitation Assets—Distribution—Priorities—Estoppel. istrator — creditor sued the administrator of and deceased S., his heirs at judgment creditor, law the homestead to make assets. another party by was made a order the of the court. Held, (1) upon judgment, The action one or an action judgment; charge to foreclose the lien of a and of priorities will direct the in be judgments; (2) one of the creditors is setting up from of liens of other creditors valid which were Piplvim the order of Court. under C., 201, GaVlotvay Bradfield, 114 N.. and distinguished. cited and 5. Homestead —Assets—Administrator—Distribution—Procedure. The administrator is the the homestead of distribution, Revisal, (5), deceased for and order directs the paid. which debts shall be — — — 6. Administrators Death intestate —Priorities Limitation of Actions —Execution. priority among judgment The creditors is determined as exist at the death of the and the liens remain unaffected lapse of time thereafter while the creditor debarred of his to enforce his claim execution. Onion, J., both at the parties April Term, Edgecombe. 1910, was an

This action owner of the by plaintiff, Bruce judgment set out, hereinafter Admr. of B. against Bryan and heirs at law, for the sale of the homestead said Bryan, assets the Bruce judgment; interpleader, Shackleford, and their defendant, Fountain, declared on judgments against Bryan.

The material facts are: Shackleford obtained two judgments before a January, 1883, which were on the same docketed day Superior Court; Bruce ob- tained Court April, was docketed the same and is now day, owner of the TEEM, 1910. N.C.]

Tabbobo v. tbe Fountain same; judgment was obtained and docketed in tbe Court 13 October, 1896. al- Bryan’s lotted under tbe Bruce September, Bryan died August, 1906, and tbe defendant Pender qualified administrator 29- Plaintiff commenced tbis October, action 7 November, on 1908, by order of Court, Shackleford was made a party action; to tbis be filed bis complaint, judgments March, 1909. Tbe court ordered tbe sale of tbe homestead land and directed tbe adminis- trator to pay out (1)

(2) tbe Bruce held plaintiff, tbe Foun- tain judgment. To that part judgment, directing tbe payment of tbe Shackleford judgments, plaintiff excepted appealed. plaintiff pleaded tbe statute of limitations and *3 as to lien, tbe administrator and tbe defendant Fountain tbe same pleaded against both tbe Shackleford and plaintiff’s and de- judgment, fendant Fountain from tbe appealed overruling same.

W. O. Howard and F. Spruill S. for plaintiff. Gilliam, &

Oilliam H. H. for Phillips inter- Shackleford, pleader.

G. M. T. Fountain for defendant Fountain. Clark, C. after J., stating tbe case. Tbe Bruce judgment in force 5 bad been 7 months and 11 years, at tbe days, death of and 9 years, 7 months and days 7 tbe commencement action, excluding time tbe statute was suspended, by reason of tbe allotment of tbe homestead. Tbe lien of tbe judg- ment, being in force at tbe time of tbe commencement of tbis tbe administrator was out of tbe pay of tbe sale tbe liens in tbe order of their priority.

As to tbe Shackleford judgments, virtue of their docket- in became ing Superior Court, they judgments of that court for tbe of lien and execution for ten from tbe date of From tbe docketing. date these judgments were dock- 9 eted, 1888, to tbe January, allotment of tbe homestead, 26

430

TAEBOEO V. PENDER. 19 From the was 8 months and years, days. 7 4 November, 1908, date of Bryan’s death, August, this action when Shackleford was made a party of 9 making months and 24 a total years, days, years, which was being months and less than the days, issues the stat- the lien. When a summons necessary destroy when the court ute is the service is later. So suspended though a and directed notice to be issued to made Shackleford party, as if a had been him, just the statute was summons issued.

This was an action in the nature of a creditor’s bill to com- homestead, assets, pel Hancock judgments. Rieger, C., 548; Oldham v. Wooten, took control of the C., When the court judg- this the lien of Bruce property through proceeding, ment was still in and when the court made Shackleford will valid, his lien was also still and the court party, apply the liens in force. priority neither it an action judgment, This is not an action West, to enforce the lien of a Lilly But here the court will direct the pro- ceeds to be in the order of their virtue of priority. By enforcing was debarred from proceeding, execution, as also Shackleford from date judgment by therefore, he was made a the statute proceeding, Guy, him not run after those dates. Adams did *4 The administrator is among judgment Blythe

land for distribution creditors. v. Pharr, Gash, C., 659; Springs v. N. 191. Re directs the order in which the debts of the dece visal, In class by representative. dent shall be the order paid prescribed: “Judgments is thus court of payment every within State, docketed and in jurisdiction competent are a lien on they extent to which property The priority among judgment death.” credit at his exist, as death to be determined ors is Taeboko v. thereafter,

and tbe liens remain unaffected tbe of time by lapse here, as tbe creditor is debarred of an to en wben, Holmes, claim execution. Mauney v. by ib., 428; 433; Daniel v. McLaughlin, Galloway Bradfield, N. C.,

There is broad distinction between tbe rules tbe governing a sheriff of application by funds raised sale under several executions, one more of which have barred tbe become before sale, Pipkin tbe expiration tbe lien issued, which tbe execution tbe dis- which, tribution of assets personal representative, held in administrator must Galloway Bradfield, supra, tbe to tbe Tbe pay according priorities at date of death of debtor. defendant Fountain is

of tbe liens, were valid wben tbe charge of under tbe administrator, orders of tbe court. Otherwise, resisting mere to sell would make tbe other liens and bis own lien invalid, good. When execution issues and tbe ben tbe judgment before tbe sale this expires is of law by operation and not caused delay resulting from tbe resistance of tbe other party.

Tbe below is

Affirmed. M. T. Fountain. G. T. Fountain & Son for appellant.

G. M. F. S. Spruill

W. 0. Howard and contra. of tbe court in tbe opinion appeal

Pee CueiaM. this action is Town of Tarboro in decisive of tbe Fountain and tbe of tbe Superior defendant Court as also Fountain, to said

Affirmed.