
    Green vs. Shaver.
    1. An attachment is a proceeding to enforce the appearance of the debtor. It is not a proceeding in rem, and where the debtor died after the levy of an attachment and before judgment, no judgment could be rendered till his personal representative was made a party.
    2. Green levied his attachment on the real estate of Hickman, a non-resident. Hickman died, and Green obtained judgment guando accidcrint against the administrator; and thereupon moved the court for an order for the sale of the estate levied on: Held, that the laud descended to the heirs of Hickman at his death, notwithstanding the levy; and that said heirs having the right to enforce the application of the personal estate to the satisfaction of the judgment, no order of sale could be rendered till they were regularly made parties to the suit.
    Hickman, a resident oí* the State of Virginia, owed Green, a resident of Sullivan county, Tennessee, three hundred and twenty-six dollars and fifty cents. Hickman had land lying in Sullivan county. On the 20th day of January, 1840, Green appeared before a justice of the peace for the county of Sullivan, and having filed an affidavit alledging the non-residence of Hickman, and stating the amount of his debt, and having given a bond in accordance with the provisions of the act of 1794, ch. 1, procured an attachment against the estate of Hickman. This process came to the hands of the sheriff of Sullivan, who made return thereupon to the circuit court, that no personal estate of the defendant having been found in his county, he had levied it on a tract of land, of 822 acres, belonging to defendant and lying in Sullivan county. At the March term, 1840, the plaintiff filed his declaration against Hickman. At the same term an order was made, that the proceedings, being against a non-resident, should be stayed eight months, that the defendant “may have time to appear, replevy the property attached and plead.” Sec. 25 of act of 1794, ch. 2.
    At the November term, the death of the defendant was suggested. David Shaver administered on the estate of the deceased, and on motion of the plaintiff’s attorney, a scire facias issued against Shaver as administrator. Shaver was duly notified on 30th January, 1841. At the March term ensuing, the plaintiff moved the court for judgment by default. This was refused by the court on the ground that the defendant was dead, and that the suit had not been renewed against him.
    
      Al a subsequent day in the same term, the suit was renewed against Shaver the administrator, and the plaintiff thereupon moved the court for judgment against Shaver. The record recites, that “David Shaver being personally present in court, and refusing to replevy the property attached in this case, and waving his right to make any defence to the suit, and it being-admitted by the plaintiff’s counsel, that no assets of Peter Hickman have ever come into the hands of said defendant to be administered. It is, therefore, considered by the court that the plaintiff recover from the defendant the sum of $318 85 with interest, and to be levied of the goods and chattels, &c. &c. of said Peter Hickman deceased, which may hereafter come to the hands of said defendant to be administered.”
    At the same term, the plaintiff moved the court “to render judgment against the land attached, and to award an order of sale of said land in satisfaction of said judgment.” This the court refused.
    The case was brought up by appeal in the nature of a writ of error.
    
      Luchj, for the plaintiff.
    
      T. Nelson, for the defendant.
   Gkeen, J.

delivered .the opinion of the court.

On the 20th January, 1840, an attachment issued at the suit of the plaintiff, Green, against Peter Hickman, a resident of Virginia, for $326 51, and was levied on a tract of land, belonging to Hickman, lying in Sullivan county. At November term, of the Sullivan circuit court, the death of Hickman was suggested. At March term, 1841, the plaintiff moved for a judgment by default, but the court refused to render said judgment, because the death of Hickman had been suggested, and the suit had not been revived.

David Shaver administered on the estate of Hickman, and a scire facias having been served on him, the suit was revived. No plea was put in by the administrator, and judgment, was rendered againt him for $318 85, to be levied of the goods of Hickman, which might, thereafter, come into the hands of the administrator: the plaintiff admitting that no assets of the estate of Peter Hickman had ever come to said administrator’s hands.

The plaintiff then moved the court to render judgment against the lands attached, and to award an order of sale of said lands, for the satisfaction of said judgment, which the court refused to do. It is now insisted that the court below erred in refusing to render judgment against the land, before the suit was revived against the administrator, and that it also erred in refusing an order of sale of said lands, after the suit had been revived and the administrator failed to replevy.

The proceeding by attachment, is not a proceeding in rem as the counsel for the plaintiff in error insists so as to authorise a judgment, condemning the property levied on, without any judgment against the party indebted. True, the property is in the custody of the law, and will be held for the satisfaction of the debt, if the party indebted does not appear and replevy. But the suit is against the debtor; and the attachment is a means adopted for the security of the creditor, and for enforcing the appearance of the debtor. The declaration is filed against the debtor, and judgment must be rendered against him, before the property can be condemned to. be sold.

After Hickman died, therefore, there was no person against whom a judgment could be rendered until Shaver administered, and the suit was revived against him; and had a judgment been rendered, when there was no party before the court against whom to pronounce it, no rights could have been acquired under it. Such judgment would have been void.

After the death of Hickman, his land descended to his heirs, and the title to the tract this attachment was levied on vested in them, notwithstanding the lien created by the levy of the attachment. No judgment could be rendered condemning the land, until the heirs were before the court. Notwithstanding the attachment had been levied on the land, they would have a right to require that the judgment of the plaintiff should be satisfied out of the personal estate in the hands of the administrator, if there were any; and having this right, they must be brought regularly before the court, that they may see that the personal assets have been regularly and fully Administered. There was, therefore, no error in the court refusing to order a sale of the land, after the cause was revived 'against the administrator. Let the judgment be affirmed.

NOTE —In reference to the lien of attachments, see Cook 25*1: 2 Ten. 273: 2 Hnmp. In reference to proceedings against heirs for subjection of real estate, see act of 1784, ch. 11: 2 Hay. 299: 5 Hay. 152, 240: 2 Yerg. 12: 4 Yerg. 10: 1 Yerg. 285: 5 Hay. 9: 4 Yerg. 218: 5 Yerg. 197: Cook, 60: Mar. & Yerg. 353.  