
    Julius M. Martin, et. al. vs. Robert Latta.
    The lands of an intestate may he sold under an execution obtained against the administrator, without making the heirs parties to the proceedings, notwithstanding there may he sufficient personal assets to" satisfy the debts.
    This was a suit for partition of a tract of land among the demandants, which had been sold by virtue of an execution against the administrators of John Martin deceased, the father of the demandants. The defendant, the purchaser under the sheriff sale, pleaded that he was not a cotenant with the demandants, and that he ivas legally seized and possessed of the land in dispute in his own demesne as of fee. The only question submitted to the decision of the court was whether the lands of the intestate could be sold by the sheriff, under an execution obtained against the administrator, there being sufficient personal assets to pay the debts, without making the heirs parties to the proceedings. His honor judge Waties, who heard the cause at York, was of opinion that the lands were liable to be sold under the execution and non-suited the demandants, who now brought up the question to this court.
    
      Rogers contended that lands could not be sold. No power is given to an administrator over them. He read the 23 Sec. of the act of 1789, Public Laws 494. That act says the growing crop shall pass with the lands. Why protect emblements and not the land itself? The personal property is the primary fund for the payment of debts. 3 Des. Rep. 115. 4 Des. Rep. 329. 2 M^ord’s Ch. 302. The writ of attachment in this case did not mention the lands. But the judgment was entered up against the lands. To permit the lands to be sold, would be putting them entirely within the power of the administrator. The administrator should his interest be different from those of the heir at law, might destroy the rights of the heir, by his own misconduct in not paying the debts.
    The case of Ash vs. Livingston, 2 Bay 80, he thought not exactly like the present case. As to D’Urphey vs. Nelson, 2 Brev. MS. Rep. 23. 
       he thought it as much for him as against him. The MS. case was somewhat different from a-note of the same case by Judge Brevard in his Digest 2 vol. p. 2. The case of Webb vs. Baker, 1 Haywood 45. was a well considered case. As to the rule of court in relation to the plea of plene administra vit, he thought that the necessity of putting in that plea, was (Grimke’s Exors. 451,) founded on the rule of law that the personal assets were to be exhausted before the land should be sold. The administrator has no direct power over the lands. He liable as any other person for a trespass, and yet indirectly he has powerto supersede the rights of the heir.
    Nott, J. — Jf the administrator plead the plea of plene administravit and shews that he has administered all the assets, the plaintiff ir ay allege that there are lands, and it has been the practice to suffer the plaintiff to take judgment against the lands. '
    
      •Rogers — He thought that proceeding very proper, but the heir should have notice He should have the opportunity to investigate the correctness of the plea of pléne administravit. If the rule contended for in this case was sanctioned, the heir may be defrauded in every case; for as he knows nothing - of the suits for and against the administrator, a creditor might take out execution against the administrator, entirely without the knowledge of the heir, and before the heir could possibly know, the sheriff may have sold his freehold and made a title of it to another. The heir cannot be deprived of his rights until he has been made a party to the proceeding. He may be absent from the part of the country where the lands lay or where the administrator resides, and the whole transaction from the beginning of the suit to the sale of the land might be consummated without the knowledge of the heir. It would be committing the lamb to the wolfe. The courts are said to protect the heir. But in this case the administrator had confessed judgment, which was a confession of assets, and this valuable tract of land was put under the hammer to pay the small balance on the judgment.
    
      Wallace Thompson — same side
    Cited Webber vs. Higgins, in Equity.
    
      Williams in reply.
    
      
      
         D’ Urphey vs. Nelson. In the Constitutional Court at Columbia, Nov. 1803 Present all the Judges, except Bay, J.
      This action was brought to try titles to land, and was tried before Grimke, J. in the District Court of Fairfield. The defendant claimed the land in dispute by virtue of a deed of conveyance from the sheriff of Camden District, made pursuant to a sale under an execution sued out upon a judgment obtained by Minor Winn against the administrators of Wm. D’Urphey deceased, the father of the plaintiff, (who claimed as heir at law of the said deceased,) upon a bond given by the deceased who died intestate. The judgment was produced in evidence; and upon looking into the record it appeared the administrators had made default, and the judgment was entered up according to the usual form in such cases.
      It was objected on the part of the plaintiff that the lands of the intestate were not liable to seizure and sale under the judgment and execution against his administrators; particularly as the judgment was taken by default, and there had been no pleadings to render the lands liable upon a deficiency of personal assets, according to the old rule of court which requires a suggestion that there are lands, &c. This objection was held good by Grimke, J. and the sheriff’s deed held void, as founded upon a sale made without legal authority; and in consequence the verdict was for the plaintiff. The defendant appealed.
      The motion in this court was argued by Blanding for the defendant, and Evans for the plaintiff.
      By the Court. At the common law lands were not subject to execution. Goods and chatties might be seized and sold by wrii of fi. fa. and the profits of land could be taken by levari facias.
      The Stat. 13 Ed. 1. 0. 18. Westm. 2. gave the writ of digit, which was the first remedy given against lands in England. The remedy by statutes merchant and staple, and by elegit, way by judgment and execution, or exti nt,{ov satisfaction of debts acknowledged by record, by virtue whereof the lands were deli - vered to the creditor, by process directed to the sheriff, and appreciated by the jury, 2 Woodd. 145.
      At common law, upon the death of the ancestor, his lands des - cended to the heir, and were not liable for the debts of the ancestor, except such as were due by specialty, wherein the heir was named. And if the heir aliened before action brought, the creditor was without remedy. So if the debtor devised away his land, the devisee was not liable for his debts.
      The Stat. 3 and 4 W. and M. c. 14. P. L. 87, makes the heir answerable for the value of the lands descended; and avoids such devises to the prejudice of creditors; and the value of the lands descended is to be ascertained by a jury.
      The Stat. 5 Geo.-2 C. 7. P. L. 250, enacts “Thatlands, ne- “ groes, and other hereditaments and real estates, of persons in- “ debted, shall be liable for their debts, and shall be assets for the “ satisfaction thereof, in like manner as real estates are by the “ law of England liable by specialty, and subject to like remedies. “ &c. for seizing, extending, selling and disposing thereof for such “ debts, in like manner as personal estates in the plantations are seized, extended, sold or disposed of for satisfaction of debts.”
      
      First. Lands of the debtor are made liable for all his debts, and are made assets for satisfying the same, in like manner as real estates are liable in England by specialty, to wit:
      1. The lands are liable from the time of the judgment rendered against the debtor himself, if judgment be recovered in his life lime. 2. They are made liable in the hands of the heir, though he is not named in the contract; and though the contract be simple and not in writing.
      3. They are liable in the hands of the heir from the time that suit is commenced against him.
      4. They are liable, or rather the heir is answerable for their value if aliened by him before suit brought.
      
        5. They are liable, though devised by the debtor.
      Secondly. The lands of the debtor are made subject to like remedies for seizing and disposing thereof for his debts, in like manner as personal estates in the plantations are seized and disposed of for satisfaction .of debts; that is to say, they are made liable to be taken by writ of fi. fa. in all cases where chattels are so liable, and sold &c., or to whatever other remedy chattels are liable in the respective Colonies or States of America.
      Being made liable in like manner as personal estates, the act cannot be construed to make any distinction between lands and personal chattels, but they must be considered as equally liable for satisfaction of debts, and to be assets for that purpose in the hands of the personal representatives of the debtor. And therefore in this case, where the judgment was recovered against the administrators, for the debt of their intestate, after the lands of the intestate had descended (as it has been contended,) to his heir at law, and never came into the hands of the administrators, although upon the principles of the common law the heir should have notice, and an opportunity of defending his estate before he can be divested of it, and it might be reasonable (as it has been argued,) that a sci. fa. should first go to call upon him to show cause why the lands should not be- taken to satisfy the debt, before the execution should issue to seize and sell the land, yet as the act of 5 Geo. 2. makes no distinction between lands and chattels, and contains nothing to show that it was the intention of the act to make the lands liable only in cases where there should be a deficiency of personal estate, the lands of the intestate must be regarded as liable to execution as personal property, and to be taken and sold as such, without discrimination or exception.
      The act of Geo. 2. was certainly intended for the benefit of the creditor. The rule of court which requires executors and administrators to file an account of their administration on oath with their pleas of plene administra vit, was intended for the benefit of the creditor as well as of the heir. But the rule of court which requires that before judgment shall he rendered to make lands of a testator or intestate liable, there shall he a suggestion by way of replication to such plea of plene administravit, filed on oath, that there are lands, &c. certainly cannot repeal, or prevent the operation of the Stat. of Geo. 2. At any rate it cannot affect this case where the administrators did not plead at all, but suffered judgment to go by default. The creditor is not to lose his remedy against the real estate of his debtor, because the personal representatives of the debtor neglect or refuse ,to do their duty. It is their duty to see that the personal assets are first exhausted before the real estates are resorted to. But the extreme anxiety observable in the common law of England to preserve the rights, and favor the claims of the heir at law, has been entirely dismissed from our law. The rights of primogeniture have been abolished, in consequence of which, and of our act of distributions, the heirs of the real estate, in case of intestacy, are the same persons who are entitled to distributive shares of the personal estate; for the estates real and personal undergo a division and transmission exactly alike, so that there cannot be any ground for contention on the score of interest between the heirs of the land, and claimants of the personal estate, for their claims are concurrent, and not adverse; they are in fact the same persons: and therefore there is no reason for giving notice to the heir, • or pr-oeeeding against him by sci. fa. before issuing execution to sell and seize the land.
      In this case, however, it appears the judgment is defective and is now objected to by the plaintiff, for that it is entered up against the administrators by name, without specifying in what manner the debt is to be levied, or naming them as administrators. By adverting to the writ and declaration it is evident the defendants were sued in their representative character, and for a debt of their intestate; but the judgment is defective in omitting to express in what manner the debt should be levied. Yet the sheriff’s deed which cites the execution, shows that the execution authorised the sheriff to seize and sell the lands, &c. of the intestate in the hands of the defendants to he administered. The court will not lay hold of this objection which was not made at the trial, to deprive the defendant of a new trial.’ But it is recommended to the defendant, to apply to the district court to amend the judgment, before the new trial takes place; for sheriff’s sales ought to be favored and supported as far they legally may.
      A new trial was granted, 
      
      Note. In Massachusetts, at an early period of their government, the county courts had jurisdiction in testamentary matters. In the beginning they so far followed the civil law, as to consider real estates as mere bona, and they did not confine themselves to any rules of distribution then in use in England. See Hutchinson’s Hist, of Massach. vol. 1. p. S93.
    
    
      
      
         See Hayw. 43 65 35 92 Baker vs Webb,and Bell vs. Hill. Sep 2 Johnson’s N Y. Term. Rep. 251. Lands liable to payment of debts by Ptat, 5 Geo; 2, c. 2,
    
   Cum a, per

Colcock, J.

The counsel for the appellant has presented some strong arguments against the construction which has been long given to the statute of Charles in this state, and pointed out very clearly the technical difficulty which has resulted from that construction, of selling one mans land under a judgment and execution obtained against another. But even if the objections were greater we could not at this day depart from that construction which the statute has received for 20 or 30 years. For by doing so we should jeopardize one half of the landed estates in the country. Since the construction which was given to the statute by which lands have been considered as equally liable to the debts of the ancestor as chattels, it would not be venturing too far to say that two thirds of the valuable land in the state have passed through different hands. But when we lay aside those distinctions between land and personal property which arise from feudal doctrines, the principal objection to the construction which has prevailed here, is, that it operates to deprive the heir of his land without his knowledge and often times when the personal estate has not been all disposed of.

But upon a little examination we shall find that from the changes which have taken place in our laws of descents, and in the relative value of real and personal property, that these objections have lost much of their force, and that in truth nothing remains but the technical objection; and the force of that is much diminished by the adaptation of the legal process to the construction which has prevailed.

By the act of 1791 there is now no individual who stands in that relation to the executor or administrator that the heir at law did, and consequently there is not that collision of interest which subsisted between them. The land as well as the personal property is distributable among all the children in equal shares. So that in a case of intestacy all the family are interested in the land; and therefore it is not very important which is sold first the land or personalty. And in the case of a devise of land, the 3, and 4 Wm. & Mary, Ch. 14, destroys the old common law notion that the devisee by taking as a purchaser excluded the creditor, and the lands devised are still liable to the debts of the testator. The devisee then may very easily protect his rights by making enquiry into the affairs of the estate, as he would have an undoubted right to do. Where the whole family are interested in the land, it would be often times a great hardship to compel the executor or administrator to sell all the personal estate before the land; for it frequently happens in the present day that the personal is more valuable than the real estate, and it would amount to a serious injury to pursue the old common law doctrine which was intended for the benefit of the heir. The technical objection has in - duced many persons to make tip their proceedings in sucha manner as to show a full administration of the personal-estate and then to suggest that there are lands, but this in fact did not remove the difficulty, for it did not operate as a notice to the heir or devisee. But this practice fell into disuse, for it was said if the land was equally liable with the personalty why say any thing about it in the record, it is enough, to frame the execution in such a manner that the land may be taken by virtue of it and sold. Nothing is said in the proceedings generally against a debtor as to the particular kind of property which he possesses. It was therefore enough to convert the old fi. fa. which it is admitted was a process operating at the common law only against personal property, into an execution against the lands also, and this is now invariably done. So that notwithstanding the true interpretation of the statute of Charles may have been that the land should be made liable by proceedings against the heir or devisee, yet in fact the purpose is sufficiently effected by our mode of proceeding, and the well established doctrines as to the rights of devisees.

Motion Dismissed. 
      
      
         See Hall vs. Hall, 2 M'Cord’s Chancery Reports. 302.
     