
    Beall’s Adm’r v. Taylor’s Adm’r & Heirs.
    January Term, 1846,
    Richmond.
    [44 Am. Dec. 398.]
    (Absent Cabeli,, P. and Brooke, J.)
    i. Foreign Judgments — Merger—Case at Bar. — c. recovers a judgment in Maryland against T., on his covenant 'binding' bis heirs; and then T. dies, leaving no estate in Maryland, but leaving real estate in Virginia. The judgment does not merge the covenant, so as to exonerate the heirs from liability thereon, in respect to real assets descended in Virginia.
    
    2. Chancery Practice — Subjection of Real Assets in Hands of Heirs — Parties.—To a bill filed to subject the real assets in the hands of heirs, to a debt of the ancestor, the administrator of the ancestor is a necessary party, and the personal assets should be first applied to the payment of the debt, lor the relief of the heirs.
    Beall’s administrator and Oliver Cromwell instituted a suit in equity in the Circuit Superior Court for Hampshire county, against the administrator and heirs of Jacob *Taylor; and in their bill they stated that Cromwell had sold to Jacob Taylor a tract of land in the State of Maryland, which sale was evidenced by a covenant binding the heirs of both parties. That Cromwell had brought suit' upon this covenant against Taylor in Maryland, and had recovered a judgment against him for 1000 dollars, and his costs; upon which judgment, an execution of fieri facias had issued, and had been returned no effects. That Taylor had afterwards removed to the county of Hampshire in Virginia, where he acquired land; and had died seized of said land, which had descended to his heirs. That Cromwell had brought suit on said judgment, in the Superior Court of Hampshire county, for the benefit of Beall’s administrator, against the administrator of Taylor, and had recovered a judgment, upon which an execution had issued and had been returned “no effects.” They made Taylor’s administrator, and heirs parties to the suit; and prayed for a decree against the administrator for the amount of any assets in his hands, and that the land descended to the children and heirs of Taylor might be sold for the satisfaction of so much of the debt due the complainants as the personal estate should not pay, and for general relief.
    The administrator, and heirs of Taylor demurred to the bill; and the cause coming on to be heard, the Court sustained the demurrer, and dismissed the bill. 1'rom this decree, Beall’s administrator obtained an appeal to this Court.
    Patton, for the appellant.
    Cooke, for the appellee.
    
      
      Foreign Judgments — Merger.—To the point that a judgment of a court of another state does not merge the original cause of action in ibis state, the principal case is cited in Davis v. Morriss, 76 Va. 27. See further, monographic note on “Judgments” appended to Smith v. Charlton. 7 Gratt. 425.
    
    
      
      Chancery Practice — Parties.—See principal case cited in Stewart v. Jackson, 8 W. Va. 30.
    
   ALLEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the judgment obtained in the State of Maryland, against the intestate of the appellees, not being a judgment of a Court of Record *in this State, did not so merge the original specialty executed by the intestate as to prevent the appellant from proceeding upon said specialty against the representatives of the intestate in Virginia, in respect to real assets in Virginia. The-Court is further of opinion, that the administrator was properly made a defendant to have an account of the assets; and where it is sought to charge the heirs upon the bond of their ancestor, the personal representative is a necessary party for their protection, and in order that the personal assets should be applied for their relief, as far as. they may go towards the extinguishment of the debt. The Court is therefore of opinion, that there was error in the decree of the Circuit Superior Court in sustaining the demurrers to the bill; the said decree is therefore reversed with costs; and this Court proceeding to make such decree as the said Circuit Court ought to have made, it is adjudged, ordered and decreed that said demurrers be overruled; and the appellees ordered to answer; and this cause is remanded for further proceedings, to be had in pursuance of this decree.  