1. Thе defendants object to any recovery by the plaintiffs, because the debts which they allege against Jоhn Fairley are denied and his administrator is not a party.
When this case was last before us on a demurrer to thе amended complaint, (
As the case is now presented, we think that the administrator of John Fairley is a neсessary party to any determination that the intestate owed the debts alleged in the complaint.
2. A deсision confined to this point would merely remand-the case to be tried over again, and as we think the other • grounds of defence are with the defendants, it would be-mere procrastination to put our judgment on the fоrmer point alone. In November, 18(>9, Wall and Leak, executors, recovered judgment against John Eairley for $357, with interest- and costs, and'at the same term, Gay recovered judgment for $863.78, &c.
Executions on these judgments were lеvied on a piece of' land which one Shortridge, for a consideration paid to him by John Eairley, who wаs then insolvent, had, before the recovery of the judgments, conveyed to Margaret McEachin,. and Henry Fаirley, children of said John-. The land, or rather the estate of John Fairley in the land, was bought by the plaintiffs for $1000, which being applied pro rata to the-judgments left a residue unpaid on each.
As John Eairley never had any estate, legal or equitable,, in the land, the levy and sale were wholly void ; in that, the-purchasers acquired no estate in the land purchased, and no-lien upon it for their debts.
Rhem
v. Tull, 13 Ire. 57;
Frost
v. Reynolds, 4 Ire. Eq. 494. Their judgments were satisfied to the amount of their respective shares of the money bid.
Halcombe
v.
Loudermilk,
We do not propose however to consider the effect of the ¡statute of limitations as a defence in this case.
On 17th November, 1870, John Eairly was adjudicated a bankrupt. On 3rd February, 1871, he formally assigned all 'Jais property to an assignee. On 24th March, 1871, he received his final discharge. At that date, among the debts which he owed, were the $1000 to plaintiffs as aforesaid, and the unpaid residues of their several judgments.
No reason is given to us why all these debts were not discharged, and we think they were. In that case the plaintiffs were not creditors of John Fairley in 1873, when the .¡amended complaint was filеd, and their whole case falls to -the ground. The debts to plaintiffs were provable in the Bankrupt Court. Their right to subjеct the land described in the complaint was not destroyed when John Fairley went •into bankruptcy, and they as сreditors might have exercised that right through his assignee and if necessary, might, by . application to the Court, have compelled him to assert it. "That they did not do so, and that the assignee has permitted the statute of limitatiоns to bar his claim, (if he has •done so, as we assume that he has) is no argument why this 'Court can aid the plaintiffs. If the debt were a fiduciary -one, or if the plaintiffs had acquired any estate in the land which gave them a lien, the cаse might be different. But we have seen that they have not. The debts to them stand -on no different footing from the other debts of the bankrupt ..and were extinguished by his discharge. In fact it cannot be material, whether the judgments were еxtinguished in part by the sale of the supposed estate of John Fairley, or ■/not. Because, even if equity wоuld keep them alive for the benefit of the purchasers, and would substitute them to the eights of the judgment plaintiffs, аs it might perhaps be contended under the case of Scott v. Dunn, 1 D. & B. Eq. 425, *109 that it would, still, by the discharge of the defendant as a-bаnkrupt, the judgment debts have been discharged.
Such we consider to be the law without reference to the-Code of.Procedure, And we.think that that has made no-change. By § 254, docketed judgments are a lien on the reаl property of the defendant which he had at the time of the? docketing, &c.
It has been held that the words “real property ” include-ecpiitable, as well as legal estates of the defendant although, they arе such as cannot be sold under execution, or without-a resort to the extraordinary remedies of the Courts.
McKeithan
v.
Walker,
But these words cannot be construed to cover land in which the defendant never had any estate or right, and as to which, his creditors have only a right in equity to follox a personal fund, which has been converted into the land as- a. gift to his children and in fraud of them. . •
Per CuRiAM. Judgment affirmed.