| N.C. | May 5, 1819
At Common Law, if the heir was sued upon the obligation of his ancestor, in order to prevent a general judgment against himself, it was incumbent upon him to confess the action and shew the certainty of the land which he had by descent. If he pleaded "nothing by descent," or judgment was given against him by default or by confession, or upon any other ground whatsoever, without confessing or shewing the certainty of assets, the Plaintiff was entitled to judgment against him, and execution might issue against his other lands, or his goods, or his body, as it might, for his own debt in case he had executed the obligation. Plow. 440. But the Plaintiff was not compellable to take such a judgment; he might suggest that the heir had such and such lands by descent, and pray execution thereof; otherwise he might have been a loser by taking a general judgment, because in that case he would be entitled only to a moiety of the lands of the heir, and it might be that the heir had no other lands except those descended. 3 Bac. Ab. Verbo, heir and ancestor. H. 2 Roll 71, 72.
But the present is a proceeding under Laws 1784, ch. 11, which directs, that when a judgment has been obtained against the executors or administrators, and the plea of "fully administered" has been found for them, before taking out execution against the lands descended, the heirs shall be notified by scire facias, to shew cause why execution should not issue against them; and if judgment shall pass against the heir, execution shall issue against the lands of the deceased debtor in the hands of such heir. It is not contemplated by this act, that any judgment shall be obtained against the heir so that in any respect he shall be personally liable for the debt; the object is to subject the lands of the debtor, which have descended to him. He is personally liable only where he (581) has sold the lands which have descended to him before action brought or process sued out against him; and then, only for the value of the land so sold, and this, by Laws 1789, ch. 39. But that is not the present case. Here, *363 the Defendants admit that lands descended, but they do not shew in certainty, or describe what lands did descend. By not doing so, the Plaintiff would be entitled at Common Law to a judgment against them personally; or agreeably to the authority in Bacon's Abridgment, before mentioned, he might elect to take judgment against the lands descended. But under this act, he cannot take judgment against the heirs personally: he may take judgment against the lands descended, and if those lands have been sold under prior judgments and executions, the Plaintiff will proceed against them at his peril. Purchasers under such executions are not bound by the proceedings in this action, and the plea pleaded by the Defendants, is nothing more than a defence for such purchasers, which they themselves will have an opportunity of making successfully, if they be improperly molested. Besides, there may be other lands descended than those which the Defendants may have proved on the trial were sold under former judgments and executions, which lands, the Plaintiff on the trial knew nothing of; and if the verdict found in favour of the Defendants be final and binding, the Plaintiff is without remedy as to them.
The Defendants have pleaded nothing which their interest as heirs required them to plead. If the plea were proper, they have not set forth in particular what lands have descended and were sold. This, if it appeared at all, could only have been shewn in evidence on the trial, which was not sufficient. The Plaintiff's case is not weakened, because he did not set forth and shew what lands particularly had descended to the Defendant. This was only necessary at Common Law, to enable the Sheriff to enquire what their annual value was before they were delivered over to the Plaintiff. That is not the case here; our act of Assembly does not direct the lands to be valued, but (582) to be sold. The heirs are at liberty to plead many pleas, when the scire facias is served on them, which, if true, would prevent judgment from passing against them. They might plead that the executor or administrator had not fully administered, but had assets; that the judgment against the executor or administrator was obtained by fraud,c.: but the present plea pleaded by them cannot serve them. The Plaintiff is therefore entitled to an execution against the lands descended, as if no plea had been pleaded.
Cited: Speer v. James,