
    NOVEMBER TERM, 1844.
    Samuel Foster v. James W. Sumner and Mary Sumner, Executors of J. H. McKennie, deceased.
    Upon a judgment against an executor, on which an execution has been issued and returned nulla bona, a scire facias cannot be sustained by the creditor against the heir or devisee, to subject the real estate.
    This was a special action of assumpsit 'brought to the December term, 1834, of the Circuit Court of Yalabusha county, by Samuel Foster against John H. McKennie. Before judgment the defendant died, leaving a will,' appointing his wife "Mary executrix, &c. A scire facias issued to revive the suit against the executrix, which was returned — not served. Process was finally, after several terms had passed, served on James W. Sumner, with whom the said Mary had in the mean time intermarried. Judgment was rendered in favor of the plaintiff against James W. Sumner and Mary his wife, as executor and executrix of the said -John H. McKennie, deceased. Upon this judgment, after an execution had been issued and returned nulla bona, the plaintiff sued out a scire facias against the executors, to show cause why the real estate of the testator should not be sold, there being no personal estate out of which he could recover his judgment. The executors demurred to ’ the scire facias. The Court sustained the demurrer ; and from that judgment the plaintiff has brought the case to this Court by writ of error.
    
      A. ,C. B'aine, for plaintiff in error.
    Wherever a third party is to be benefited or charged, a scire facias is necessary' to make him a party. 2 How. Rep. 601, Smith, et al. v." Winston, et al. These legatees there were made parties to the suit as executors, and the judgment is against them in that capacity. The judgment was and is evidence, and binding on them in any character they may be afterwards made to assume in the cause, as heir, legatee, distributee, &c., because they were parties to the suit and judgment. Therefore it binds them, and all in privity of blood or estate with them. See McCoy's Executors v. Nichols, 4 How. Rep. 31. The rule laid down by Justice Trotter, at page 38 of this case, fully sustains our right to recover here ; namely, that there is no privity between the real and personal representatives, save where the heir has been a party to the suit or judgment. Here these legatees were parties to the suit, and of course they were bound by it. There can be no reason given in law, justice, or sense, why any land they are entitled to under McKennie’s will, should not be sold upon a judgment on this sci. fa., that could not be given why we should not sell their own lands on a judgment against them personally, if afterwards we chose to call upon them by scire facias, to show cause why we should not sell their lands under such personal judgment.
    Gholson, for defendants in error.
    The plaintiff in error instituted an action in the Circuit Court of Yalabusha county, against John H. McKennie, who having died before the determination of the suit, it was revived against his personal representatives. In March, 1838, a judgment was rendered in favor of the plaintiff against the personal representatives of McKennie, and on an execution issuing thereon, there was a return of no property. The plaintiff then sued out a scire facias against the devisees of McKennie to subject the lands in their hands to the judgment, to which scire facias there was a general demurrer, which was sustained by the Court, and from that judgment a writ of error has been prosecuted to this Court.
    The judgment in this case having been rendered not against the testator in his lifetime, but against his personal representatives after his death, was clearly no lien on his real estate. A scire facias would not therefore lie, to subject that to the judgment which the judgment never bound. Had the judgment been in his lifetime, it might have been otherwise. In the case cited from 2 How. 601, the judgment was in the lifetime of the intestate and against him.
    At Common Law, it is believed that neither heir or devisee was bound for the debts of the ancestor; they were made liable in England, by statute, to the éxtent of the assets which might come to their hands. We have no such statute, but ,a better remedy is given by a proceeding in the Probate Court. The statute law in Alabama is precisely like ours, and there it has been expressly decided that a scire facias will not lie in a case like the present. Bells, et at. v. Heirs of Robinson, 1 Stewart, 193.
   Mr. Justice Clayton

delivered the opinion of the Court.

The only point presented by this record is, whether upon a judgment against an executor, on which the execution is returned nulla bona, a scire facias can be sustained by the creditor against-the heir or devisee to subject the real estate. By the Common Law it would seem, .in such case, that the scire facias would not lie. Busby v. Roberts, 3 Haywood, 300. The remedy was confined to cases of judgment against the decedent in his lifetime. The statute of George II., which subjected lands in the colonies to sale under execution, and which has been followed by statutes of a similar character in many of our States, has been holden to have produced no change in this respect. 3 Hay. 301. This view has prevailed in Alabama., See Bells, et al. v. Heirs of Robinson, 1 Stewart, 194. It is true, in some of the other States, the lands are sold under execution and against the personal representative, although the heir be no party to the proceedings. 4 Kent, 428, 429.

In the case cited from 2 How. 601, there had been judgment against the ancestor in his life.

By our law, at the death of any one, his whole property becomes liable to the payment of his debts, and is converted into a trust-fund for that purpose. If the estate is insolvent, the statute prescribes a particular mode to be pursued in its administration. If by getting judgment against the executor or administrator, the creditor obtained the right to subject the real estate in any other mode than the one prescribed by the statute, he might in 'that way obtain a preference over other cieditors, when the object of the law is, in such case, to preserve exact equality. As the statute does not authorize this course, we think the Court below did right in sustaining the demurrer.

The judgment is therefore affirmed.  