
    Thomas Maydwell, Adm’r., v. Susan M. Maydwell, et als.
    
    Real Estate. Ancestor'. Heir. Alienation. A conveyance of real estate, before suit commenced, by a mother who inherited it from her child to whom it descended from the father, is not an alienation under the Statute; and the land is liable for the father’s debts.
    Code construed: Section 2256.
    EDOM SHELBY;
    Appeal from the decree of the Chancery Court,. May Term, 1868. William: M. Smith, Ch.
    J. M. Gregory, Stovall & Flippin, L. B. McFarland, For Appellants
    Kortrecht & Craft, J. E. Temple, Beecher & Belcher, J. M. Carmack, Ayres & Randolph, For Appellee.
   Deaderick, J.,

delivered the opinion of the Court,

Justice Turney and Chief Justice Nicholson dissenting.

C. C. Maydwell died in September, 1862, leaving an infant child, his only heir at law, and his widow,. Susan M., surviving him. Soon after the death of the father the child died, and the mother inherited: from it real estate which had descended to the child from the father.

Susan M., the widow, on the 30th of March, 1866, conveyed the real estate in trust to Lewis Amis to •secure a debt due from her, and reserving to herself a life estate in the residue of the land, with remainder to her children, who were not the heirs at law of her deceased husband.

In May, 1867, the Administrator of C. C. Mayd-well filed his bill to subject the said real estate to the payment of his intestate’s debts, all the personal •estate having been exhausted.

The question raised upon the foregoing facts is, whether the creditors of the intestate are entitled to have so much of the real estate, descended to said infant child, and from it to its mother, applied to the satisfaction of their debts, as may be necessary for that purpose, or whether, the mother shall hold, discharged of all liabilities for the intestate’s debts.

It is insisted that by. the provision of Sec. 2256 of the Code, the land is discharged from liability for the debts having been aliened by the mother of the heir to the father before action brought, and that the only remedy of the creditor is the personal liability of the widow for the intestate’s debts to the value of the lands aliened. That Section is as follows: “And if an heir or devisee alien the land before action brought or process sued out, he shall 'be answerable for the ancestor’s debts to the value of the land aliened.”

This Section is found in ch. 2, art. 11, under the bead of “Beal Aseets.” Sec. 2252 declares that “every debtor’s property, except such as may be specially exempt by law, is assets for the satisfaction of all just debts.”

Waiving for the present the attempt to reconcile these two apparently conflicting Sections, it is sufficient for the purposes of the present case to hold that See. 2256, does not apply to a case like the present. It is not the heir of the ancestor for whose debts it is sought to make the lands answerable that has aliened them, but the widow who claims title through her child, the child being the heir of the ancestor whose creditors seek to have their defendants paid by the-sale of the land.

To allow the voluntary conveyance, made in this case by the widow to a trustee for her own and her children’s benefit, to defeat the just claims of creditors of the intestate who owned the land at the time of his death, would be to sanction manifest injustice by means of a misinterpretation of the statute. The widow is not the heir or devisee of intestate, and can not, under the Section referred to, be held as such, answerable for his debts to the value of the lands aliened upon the principle that her alienation is valid, and the lands rightfully disposed of. She might be held liable upon other grounds, but her voluntary conveyance can not be held to have placed the land beyond the reach of the creditors of intestate. His lands are assets for the payment of his debts, and not having been aliened after his death by his heir or devisee, they are still answerable in the hands of a voluntary grantee for bis debts. What effect upon the rights of creditors a conveyance before suit commenced by the heir of the intestate would have had, it is unnecessary to determine' in the present case.

The facts in this case do not present the case provided for in Sec. 2256 of the Code.

The Chancellor’s decree will be affirmed, and a decree will be entered here for the sale of so much 'of the land described in the Chancellor’s decree as may be sufficient to pay the debts ascertained to be due from intestate’s estate, and the costs of this cause in this court and the court below.

DISSENTING OPINION.

Opinion delivered by

Justice Turney,

Chief Justice Nicholson concurring.

In September, 1862, C. C. Maydwell died, leaving his widow, Susan M., and an unnamed child, his only heir. Soon after the death of the father the child died, and from it the mother inherited real estate descended from the father.

On the 30th of March, 1866, Susan M., who is lately dead, conveyed the real estate in trust to Lewis Amis, first, to pay to Kortrecht & Craft fees to the amount of twenty-five kwndred dollars ($2,500). Second, to raise a fund sufficient, with the probable rents and income of the balance of the property not sold, to provide for the comfortable and liberal support of herself and children (not of the marriage), and the education' of the children, according to their condition in life, etc.,.for and during her natural life.1 At her death all the remainder and residue of said property and estate, its proceeds, rents, incomes, and profits shall be divided, •titles vesting immediately upon her death, one-half to her son William, one-fourth to her son James Van Hook, and the remainder to her son George Washington.The trustee to be paid fully for his services, care, and trouble in performing the trusts. On the 16th of May, 1867, the administrator of C. C. Maydwell filed his bill seeking to subject the realty to the payment of his intestate’s debts, the personalty being exhausted. This application is resisted upon Sec. 2256 of the Code, which enacts: “And if an heir or devisee alien the land before action brought or process sued out, he shall be answerable for the ancestor’s debts to the value of the land aliened.”

This is substantially the Act of 1789, ch. 39, sec. 3, and which is in the words:

“When any heir at law shall be liable to pay the debts of his or her ancestor, in regard of any lands, tenements, or hereditaments descending to him or her, or where any devisee shall be liable to pay the debt of a testator in regard of lands devised to him or her, and shall sell, alien, or make over the same before action brought or process sued out against him or her, that such heir at law or devisee shall be answerable for such debt or debts to the value of said land so by him or her sold, aliened, or made over, in which cases all creditors shall be preferred as in action against executors or administrators, and execution shall be taken out upon any judgment or decree obtained against such heir or devisee to the value of said lands, as if the same were his or her own proper debts, saving that the lands, tenements, and heredita-ments bona fide aliened before the action brought, shall not be liable to such execution.”

In Smith v. Stump’s heirs, Peck, 278, a case arising under the Act 1789, Judge Haywood says:

“Say that the judgment is to be entered against the lands descended, this description covers the lands descended and aliened before action commenced or process sued out against the heir, and will reach lands, the value of which the heir has paid to the creditors of his ancestor, which became thereby no longer liable to the debts of his ancestor. And moreover, in case of such judgment and writ of execution correspondent to it, the sheriff, in his discretion, would sell whatever other lands, in his opinion under the description of lands, descended, and for every sale would make a law suit, and there is no discr’etion left in the sheriff. Such authority can not be given without great inconvenience, and is not warranted by principle, which rather makes the defendant liable personally, than commit such unreasonable and unnecessary powers to the sheriff when he has no means of trying conclusively any of the facts which render the lands descended not liable to the debts of the ancestor.”

One of the chief objections urged by Judge Haywood lies in this case: part of the realty has been sold since the alienation by the mother.

In book 2, p. 287, Blackstone says: The most usual and universal method of acquiring a title to-real estates is that of alienation, conveyance, or purchase in its limited, sense, under which may be comprised any method wherein estates are voluntarily resigned by one man and accepted by another, whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties.”

In vol. 4, p. 509 of his Commentaries, Chancellor Kent says:

“A purchase, in the ordinary and popular acceptation, is the transmission of property from one person to another by their voluntary act and agreement, founded on a valuable consideration. But in judgment of law it is the acquisition of land by any lawful act of the party in contradistinction to operation of law, and it includes title by deed, title by matter of record, and title by devise.
“The alienation of property is among the earliest suggestions flowing from its existence. The capacity to dispose of it becomes material to the purpose of social life as soon as property is rendered secure and valuable in the progress of nations from a state of turbulance and rudeness to order and refinement. The power of alienation is a necessary consequence of ownership, and it is founded on natural right. In the times of the Anglo-Saxons, lands were alienable either by deed or by will.”

We see from these authorities the term “alien” embraces every mode of disposition exercised by mutual consent, without regard to consideration. It was the intention of the Legislature, in the passage of the Act before us, to use the term in its legal signification, and have it include, as it does, all the other terms used in the Act of 178fi, the younger act being merely a codification, and not a repeal nor abridgment of the scope of the older. In my judgment it can make no difference that Susan M. Maydwell inherited from her child, the heir of C. C. Maydwell. By that inheritance she took all the rights of the heir, amongst them the right of alienation. Just such interest as vested in the child from the father vested in the mother from the child; the descent cast by the death carried the entire estate with all the incidents of the right of alienation.

The Section as to real assets, etc., should be construed so as to be consistent with the one before us, allowing both to stand. I think the decree should 'be reversed, and the bill dismissed, so far as it pertains to the realty conveyed in trust by Susan M. Maydwell,  