
    Jonathan Hutchinson’s Executor vs. Daniel Hutchinson, Jacob Swallow and others. Same Plaintiff vs. Same Defendants.
    Where lands have descended to heirs, and have been by them sold and conveyed, whether a judgment creditor of the ancestor can, by scire facias, enforce the collection of his judgment of the lands so sold and conveyed. Query.
    If such action can be maintained, it is a good defence for the purchaser, that the judgment was dormant at the time of the purchase, or became dormant subsequently.
    These two cases come into this Court by appeal from the Court of Common Pleas of Hamilton County. They are brought by the surviving executor of Jonathan Hutchinson, deceased, against the heirs- at law of Isaiah Hutchinson, deceased, and Jacob Swallow, the tenant in possession of land descended from said Isaiah to his said heirs, and by them conveyed to said Swallow.
    In Bank.
    Dec. Term, 1846.
    The first is a suit commenced by scire facias, which was issued on the 31st of May, 1838. It is recited in the scire facias, -that the plaintiff, as executor of Jonathan Hutchinson, together with Ezekiel Hutchinson and Asa Hinkle, his co-executors, recovered judgment in the Court of Common Pleas of Hamilton county, on the 29th day of May, 1822, against Isaiah Hutchinson, for the sum of twelve hundred and eight dollars, damages, and eight dollars thirty-six cents costs, in an action of trespass on the case. That the said judgment remains- wholly unsatisfied and in full force. That the said Ezekiel and Asa had been removed from being executors, and were dead. That the said Isaiah Hutchinson was also dead, intestate, and that no administration was taken’ upon his estate. That the- defendants, with the exception of Jacob Swallow, are the heirs at law of the said Isaiah; that he died seized of a certain trac-t of land in Hamilton county, containing sixty acres, which is particularly described, which descended to the defendants, who are heirs at law of said Isaiah. That there is no personal property of said Isaiah, whereof the said judgment can be satisfied; that moro than five years have transpired since the death of the said Isaiah, and that his estate has not been settled up. It is further recited, that Jacob Swallow is a terre-tenant in possession of the land described as aforesaid; that the heirs at law of said Hutchinson have received, upon the sale of lands descended from their ancestor, three thousand dollars or more, which they refuse to apply in satisfaction of the judgment, and are utterly insolvent. In the mandatory part of the writ, the defendants are required to show cause why the plaintiff should not have ■ execution of the judgment aforesaid, against the lands of said Isaiah, so descended to his heirs, and against the other assets and effects -in the hands, of the heirs, &c..
    
      The other'case is similar, with the exception that the original judgment was by scire facias upon a mortgage. The mortgage premises were sold for a sum not sufficient to satisfy the mortgage'debt, and the object'of the suit is to have execution for the sum remaining unpaid.
    The heirs of Isaiah Hutchinson have not appeared in the, case; but the defendant, Jacob Swallow, appeared and filed several pleas, to two of which the plaintiff demurs generally. It is only necessary to recite these two picas.
    The first is, in substance, that the defendant, Swallow, is in possession of the tract of land described in the scire facias, and claims to hold the same in fee, the same having been conveyed to him by deed, &c., the defendant having paid therefor a valuable consideration; and that neither when said purchase was made, or said deed delivered, was there any subsisting judgment, in said Court aforesaid remaining, as set forth in said scire facias, that was in law a lien or incumbrance upon said premises, or by any process to be issued on which said premises could be subjected to the payment thereof, &c.
    The second plea is, that the said Jacob Swallow is in possession of the tract of land described, &c., and claims to hold the same in fee, the same having been conveyed by the said George Hutchinson, David Hutchinson, Eleazor Hutchinson, Ezekiel Hutchinson, Isaiah Hutchinson, Jeremiah Turner and Mary, his wife, John A. Reamer and Elizabeth, his wife, and Francis Hutchinson, co-defendants, by decrees duly executed and acknowledged, being anterior to the commencement of this suit, as will more fully appear by reference thereunto; that he, the said defendant, when the said deeds were delivered to him, paid a full and valuable consideration for said land; and that, neither when the said money was paid, nor when said deeds were delivered to him by said defendants aforesaid, was the said pretended claim of the said plaintiffs in said scire facias set'forth, a subsisting lien or incumbrance upon said premises, nor could the premises, by any process to be issued thereon, be subjected to the payment thereof; and this, &c.
    
      
      N. Wright, for Plaintiff.
    The case presented, is as follows: A judgment debtor dies intestate; no administration is taken out on his estate; five years have elapsed since his death, and his estate has not been settled up; and the question is, can we have a scire facias, against his heirs and terre-tenants, to sell his land for the satisfaction of the judgment, although his heirs, in the mean time, have conveyed it to a third person ?
    I suppose it to be fully settled by this Court, that a scire facias is our proper remedy in this case, and that we are entitled to an award of execution against the land, unless prevented by the sale to Swallow.
    The case of The Miami Exporting Company v. Halley’s Heir's, 7 Ohio Rep. 11, is precisely like the present, so far as the form of proceeding is concerned. There was even a terre tenant in that case, claiming to be a purchaser; but, as he had not acquired a valid deed, the precise question now presented did not arise. Other cases on this subject, are — Bank of Georgetown v. Meigs’ Heirs, fyc., 5 Ohio Rep. 313 ; Piatt v. St. Clair’s Heirs, &fc., 6 Ibid. 237; Douglass v. Waddle, 8 Ibid. 210.
    Referring to these cases, it will be unnecessary for me to repeat the investigation of the statutes, or the general reasoning which they contain.
    The only remaining question is, whether the alledgcd sale to Swallow, by the heirs, will bar our right to proceed against the land of Isaiah Hutchinson, the deceased judgment debtor?
    It will be kept in mind, that I do not claim to hold this land by virtue of an ordinary judgment lien; for that would be defeated by the dormancy of the judgment. I claim to hold it on the principle, that lands of decedents pass to the heirs, subject to the debts of the ancestor; that, on the vesting the title by descent, it always vests subject to this burden. The burden may be called a lien, or by whatever name may be more convenient; but it is a charge on the lands, or, in other words, the lands are bound for the debts. That this is true when the lands first pass to the heir, no one will doubt. Should the heir alien them for full value, in good faith, the day after the death, no one will question that they still remain subject to be sold for the debts of the ancestor. Our law intrusts the administrator, under direction of the Court, with power to sell and pass a clear and absolute title; but to the heir, over whom neither the Court nor the law has any certain control —who may be a resident or a foreigner, a man of property or insolvent, an honest man or a knave — the law commits no such fiduciary tiust. Taking it for granted, then, that the lands when they first descend stand charged with the debts as against all the world, the question is, how long do they remain so charged ? It will be seen at once, that this is a question for legislation, and that nothing but an arbitrary rule can well fix the exact moment at which the lands shall stand exempt from the burden, or, in other words, when the heir shall be at liberty to alien the lands of the ancestor, discharged of his debts.
    Our statute, I suppose, fixes this rule. The act of March 12, 1831, sec. 42, (29 Ohio Laws, 240; 3 Ch. Stat. 1784,) provides, that at the end of five years from the death of any person, if there have been a final settlement, and if not, then so soon thereafter as there shall be a final settlement of the estate, the lien on the real estate of decedents, for the payment of claims, &c., shall cease, and the land may be aliened by the heirs, freed from the incumbrance of such claims. This provision recognizes, unequivocally, the existence of the lien or burden, and at the same time fixes a limit to its duration. The existence of the lien is also established by the laws subjecting lands to execution, authorizing administrators to sell, and various other provisions bearing on this subject, which could not be made effectual, unless the charge adheres to the lands after the descent.
    In the present case, five years had elapsed since the death, and the estate is not settled up; and of course, by the language of the statute, the heirs could not alien the land, freed of our claims. I do not see how this conclusion can be avoided. Independent of this statutory limitation, the charge of the debts on the land must continue till it is terminated by the general statute of limitations, or some other equitable, but more arbitrary rule, to be applied for the sake of peace. Hence the necessity and utility of this express legislation.
    And surely there can be no injustice in such legislation. Lands ought to be subject to the' debts of the owner, as well after as before his death. His heirs ought to take only the residuum, after the debts are paid; and they ought not to have the power of removing or changing the property, so as to impede or endanger the collection of debts. Reasonable diligence should be imposed on the creditor, but his rights are altogether paramount to those of the heir. And. he who purchases from the heir, stands in the same attitude. He traces the title through the inheritance, subject, of course, to the debts of the ancestor; and there is imposed upon him only the ordinary diligence of referring to the records of Court, to ascertain whether the estate is so'settled that the heir can make him a safe title. If he buys before such settlement, he knows he buys a contingency — a mere adventure — and he pays accordingly. The heir has always the power of compelling a settlement, by citation, to the. administrator, or by administering himself; and where a settlement will leave the land clear for his disposal, he will be sure to procure it to be closed; but when it will result in a sale of the whole, of course he will take his chance of selling the contingency before a settlement.
    I find the opposite counsel consider these cases to be reserved on the demurrers only, and therefore I have not furnished the evidence as to the other issues.
    I suppose the plaintiff is clearly entitled to an execution on the judgments; but if I am in error, and the demurrers should be overruled, I ask leave to reply, for I am instructed that the defendant, Swallow, cannot show a valid title to the whole of the land, from all of the heirs of Isaiah Hutchinson.
    
      
      B. Storer, for Defendant Swallow.
    A preliminary question must be settled in this ease, before we proceed to a discussion of the more important ones. Can this suit be maintained, when it is admitted that no administration has been taken out upon the estate of Isaiah Hutchinson ? It is strictly an application to subject the realty to the payment oí a special debt, to the exclusion of all others; and, without a lien preferable in law to any ordinary creditor, it is asked that the whole estate of a decedent may be charged with the burden of a particular claim, before the personalty is legally exhausted or the heirs have been called upon to discharge the claim. Besides, the process in this cause is for another purpose. It is to revive the former judgments; and can it be just to admit such a course to be taken, until some representative, competent to defend the action, is before the Court 1 Can the heirs plead payment, when by law the personalty does not descend to them ? If they could, can they be supposed to have the evidence of the fact ? But an administrator could meet the issue at once, protect the general estate, and avail himseif of every proper defence.
    In Piatt et all. v. Heirs of St. Clair, 7 Ohio Rep. 555, the principle was decided in equity; and in 8 Ohio Rep. 216, Douglass’s Administrator v. Waddle et al., the precise point was adjudicated at law.
    It is fully admitted, if I understand the opposite counsel, that he claims nothing by virtue of the judgments. As such, they are both dormant; and as no levy was ever made, the alienee from the heir for value will be protected, though the heir would not be; and such is but a just conclusion from the repeated decisions of this Court. For if the judgment debtor, after a lien is dormant, should convey for value, and the purchaser will hold the estate, I cannot understand how it is that the same rule does not apply to the purchaser from the heir of the judgment debtor; Norton v. Beaver, 5 Ohio Rep. 181; see also 2 Call, 103. The main proposition to be discussed is, can the property specified in the scire facias be subjected to the payment of the debts merely, which the plaintiff alledges he holds as executor against Hutchinson, the decedent ?
    This involves the propriety of the present process, as well as the right to pursue the estate by it, if it can, in such a case as that now before the Court, be sustained.
    As to the first, the plaintiff’s counsel assume that there is no doubt but that the facias is the proper remedy. He quotes several cases. I will refer to them but briefly. The decision in 7 Ohio Rep. 11, Miami Exporting Company v. Halley’s Heirs, is not in point. There no transfer had been made by the purchaser; the property was still in the heir, and the judgment was a lien upon the property. In 5 Ohio Rep. 313, Bank of Georgetown v. Meigs’ Heirs, the judgment was originally had against the administratrix of Meigs, and the suit was instituted as provided for in the statute. In 6 Ohio Rep. 237, Piatt v. St. Clair’s Heirs, the remedy sought was in Chancery, and that too when the bill was filed for one purpose, and was eventually so amended and extended as to operate upon the whole estate, like a writ of sequestration in the exchequer. In 5 Ohio Rep., Douglass v. Waddle, the action was brought under the act of March 12, 1831, and was brought solely against the heirs.
    There is then, I apprehend, no case like this that the Court have been called on to adjudicate, where the terre-tenant, situated as he is, who' is now sought to be made liable to the extent of his estate, has ever been subjected.
    It is said, however, that the lands of the decedent pass to his heirs charged with the burden of his debts, and, as a general rule, the principle is readily admitted; but how far the charge shall extend, how long it may be deferred, and how it is to be enforced, are questions that must first be understood and decided, before the rule can apply in its broadest sense.
    As lands are never sold in England for the payment of debts, it is not to be supposed that we can be aided, but by remote analogy, by any of the proceedings in the British courts; and how far the illustration furnished by their practice under the writ of elegit, is to aid us, it is difficult to say. Let us admit, however, that the process is properly brought against the heirs, can it operate beyond them; in other words, can their alienee be reached? By the law of 1831, “after five years shall have ■“elapsed from the death of any person, if there have been a ‘ final settlement, and if not, then sd soon as there should be, ‘ the lien on the estate for the payment of claims, ‘ shall cease, ( and the land may be aliened by the heirs freed from the in-. ‘ cumbrance of such claims.’ ” Here, then, we have the limitation of the lien, or whatever term may be applied to convey the meaning of the charge upon the decedent’s estate. No more than fifteen years elapsed from the death of Isaiah Hutchinson, until the conveyance of his heirs to Swallow, the terretenant. The time of the conveyance will be seen in the deeds on file in the cause. It would follow then, prima facie, that the alienee, after such a lapse of time, would be protected in the purchase thus fairly and publicly made; and the fund in the hands of the heir, derived from the sale, should alone be reached for the payment of debts. And I cannot see why the alledgéd fact that there was no settlement made with the Court, can change the relation of the parties. The heirs were not compelled to administer upon their father’s estate; and they could not prevent letters from beirig granted to a creditor, unless they should substitute themselves in his stead. If, then, a creditor who has it in his power to take administration, neglects to avail himself of the right, or to apply to the Court to appoint a suitable person for that purpose, or to require the heirs to show cause why they do not administer, it is not perceived how he can urge the want of the settlement of the estate, as a reason why the heir cannot aliene. Had the creditor administered, or procured some one- to do so, then the estate might have been sold in the usual course of administration, years before the purchase by Swallow, and the innocent buyer would not have been ensnared by the neglect of the plaintiff, or permitted to believe that there was no claim upon the land from the silence of the creditor.
    
      On the ground upqn which the right is placed by the plaintiff, there would be no safety for 1 a purchaserfor if the first alienee in: such a case as this could not be -protected,, no one .could be, however remotely he was placed in the chain'of-title. 'He would be charged with notice of the conveyance from- the • heirs; and no matter how long he had occupied on the faith of his purchase, his whole estate would be taken from him; and if, in the meanwhile, he had erected, valuable improvements, and enhanced th'e .value of the property, he would be compelled .to resort to a Court of-Equity for thé value of. the ameliora-' tions. To say the- least, in a case thus situated, the 'equity of the purchaser is fully equal to that of the creditor, and the' legal,title must, on every just rule,’prevail; ,The. creditor,-by , his delay, has induced the '.purchaser to buy, permitted- him to expend his money, and then seeks to deprive him of the'estate. Against such a contingency we trust we shall-be'protected.- ■
    It might be asked; hoW long-is this- burden to remain on the • land 'of the decedent, should no administration be ever taken ' out,, oi; an account settled ? As there is no limitation stated'.in the argument of the opposite counsel, and none in the statute, except the five years; or what is . equivalent, the settlement of the estate, assuming that an- administrator has been appointed', it is to run through all time, or-the position of-the plaintiff is unsound. Now., a'judgment once, d'prmant, ceases to operate, against a purchaser, but a mere claimant-is allowed the most undefined liberty to sue for and recover whenever he should so please to do. ■ ' - .-'
    - But'by protecting the a|ienee, the creditor is still at liberty to pursue the heir, for'the estate expressly, gave to him the-right to charge the heir with the proceeds in any property that may have come to him by descent; and here, .where there is nú pretence but that the heirs.are solvent, jt cannot be. urged.that the,. creditor hasi a right to select the fund, out of which -he.is to be paid: No purchaser, in a case like-this,.can be bound to see to the application of, the purchase money; having paid a fair price, in good faith, and received the legal title, I ask that he' ■ m'ay be protected in. his estate.
   Hitchcock, J.

The object of the plaintiff in these cases, docs not appear to be merely to revive judgments against the heirs of a deceased judgment creditor, but to revive the judgment, and then have execution against the lands descended, but which are not remaining in the possession of the heirs. Whether this course of proceeding can be sustained, is at least doubtful. Such suits have been brought, and the cases are reported in the Ohio Reports. But I think I am not mistaken in saying, that no one of them has been prosecuted to effect, unless where the property was still in the heir, and bound by the lien of the judgment. Whether the judgments in the cases now under consideration were dormant, at the death of the judgment debtor, does not appear from the pleadings, as the date of his death is not stated. But it is argued by plaintiff’s counsel, that, whether dormant or not, they were still a lien or a charge upon the estate, because, when a person dies, his estate descends to his heirs, subject to all outstanding claims against him. This is unquestionably true; but the estate is no more bound or incumbered' by a judgment, than by any other debt, • with this exception, that the judgment, being a lien upon land, must, if the lands are sold, as they may be, by the personal representative, be paid in preference to other debts.

This remedy is certainly an extraordinary one; and such remedies ought not to be resorted to where provision is made, by statutory enactment, for the payment of a decedent’s debts. The usual, the ordinary course of proceeding, as prescribed by express legislative enactment, should be pursued. There was formerly some difficulty in reaching the lands of a judgment debtor, after his decease, or to subject his lands, where the judgment was recovered against his personal, representatives. But the law now makes ample, provision for the' appropriation of a decedent’s estate, both real and personal, to the payment of debts, through the instrumentality of the probate powers of the Courts of Common Pleas, ‘ The personal property must first be exhausted, and, if this is not-sufficient,.the real estate may be applied.

In the cases now under consideration, the plaintiff complains, that no letters of administration were taken upon decedent’s estate. True, it is the duty, and the privilege, of the near relations of a deceased person to administer upon his estate. But if they neglect the performance of this duty, creditors are not without remedy; for the law expressly provides that, in such case, a creditor may take administration. It would certainly have been better in the present case had this course been pursued.

But admitting, for present purposes, that these suits are well brought, the question arises as to the sufficiency of the pleas of the defendant, Swallow. The first of these pleas is not sufficiently specific in its terms, but to the second, no objection on this account can be made, nor is any made in argument. The question presented by the plea, is not, whether a sale made by heirs, of land descended1 before the settlement of the estate, would so withdraw it from the power of the administrator, that it could not be appropriated for the payment of debts; but whether a purchaser from heirs, the purchase being made at a time when there is no subsisting lien upon the land, can be protected against a suit, brought by a judgment creditor, whose judgment was dormant at the time of the purchase — the object of the suit being, not merely to revive the judgment, but to subject the land to sale for its satisfaction?

In the case of Norton v. Beaver, 5 Ohio Rep. 178, this Court held, that a purchase made while a judgment was dormant, would be protected, and that, although the judgment may be subsequently revived, and when so revived, operates as a lien from the rendition of the original judgment; still, rights acquired in the intermediate time, are not affected by the revival. Although the revival of the judgment revives the lien, which operates retrospectively, still it operates only upon lands remaining in the possession of the judgment debtor — not upon those which have by him been sold and conveyed. To apply the principle to the case under consideration; suppose the land in controversy had been conveyed by Isaiah Hutchinson, in his lifetime, the purchaser would have taken a title unincumbered by any lien. Can it maké any difference, that the conveyance was made by his heirs ? To the Court, it seems not. Whether the conveyance was made within five years after the rendition of' the judgment does not appear, nor is it material. In the case cited, the conveyance was madé within five years ; but the judgment afterwards became dormant, and the Court held the title of the purchaser to be complete. In the cases now before the Court, whether the judgments were dormant or not at the time of the sales, they are how dormant. At the time these suits were instituted, fifteen years had transpired from the rendition of these judgments, and duripg that time no execution had been issued. Without determining whether an administrator duly appointed could, or could not, resort to this land for the payment of the debts of the intestate, the Court are of opinion that the second plea demurred to is a sufficient plea in bar of this form of action.

Leave is given to the plaintiff to withdraw the demurrer and file a replication.  