
    *Piper v. Douglas’ Ex’or.
    January Term, 1847,
    Richmond.
    i. Bond of Ancestor — Liability of Heirs. — A party seeking- to subject lieirs to tbe payment of the bond of their ancestor, must shew that the heirs were bound by the bond.
    a. Same — Bill to Subject Heirs to Payment — Failure to Allege That Heirs Are Bound — Case at Bar. — Bill filed to subject heirs to the payment of the bond of their ancestor, does not allege that the heirs are bound in th e bond ; but makes the bond an exhibit with the bill. The answer does not admit or deny that the heirs are bound in the bond ; and before the cause is heard the bond is lost out of the papers in the cause. There is proof of the existence of the bond, but no proofs on the question whether the heirs were bound by it; nor is that question made in the Court below ; but a decree is made against the heir. Held. That although this Court will reverse the decree for want of the proof that the heir is bound, the cause will be sent back to give the plaintiff an opportunity to amend his bill, and shew that the heir was bound in the bond.
    In 1821, John Douglas filed his bill in the County Court of Albemarle, against the administratrix and heir of James Burnley, in which he alleged, that in 1796, James Burnley sold to Wiley Dickinson a- tract of land,' and executed to him a bond, with said Douglas as one of his sureties, with condition to make Dickinson a good title to the land. That in 1816, the land was sold by a trustee in a deed of trust executed by Burnley, and Carpenter who held by purchase under Dickinson, purchased it at the sale by the trustee, and withheld the amount he was compelled to pay for it, out of the purchase money due to his first vendor. That thereupon, the whole subject had been submitted to arbitration by Douglas, Dickinson, and Carpenter; and the award was that Douglas, as surety for James Burnley in his bond to Dickinson for the title, should pay the amount which Carpenter had been obliged to pay in order to quiet his title. The bill prayed that the defendants might be compelled to repay to the plaintiff the amount he had been compelled to pay as surety for James Burnley. *The bill made the bond an exhibit, but does not charge, nor does it appear upon the proofs, that it bound the heirs of James Burnley; and before the cause came to' a hearing it was lost out of the papers.
    Mrs. Burnley, the administratrix, and Mrs. O’Neale, the daughter and heir of James Burnley, answered the bill, disclaiming all knowledge of the matters therein charged, expressing the belief that they were false, and calling for full proof.
    The cause lingered in the County Court until 1838, when it was removed to the Superior Court of Albemarle; and it was revived in the name of Douglas’ ex’or as plaintiff, and Mrs. Burnley, and Elizabeth Piper, tbe daughter and heiress of Mrs. O’Neale, as defendants. And the cause then coming on to be heard, the Court held that the plaintiff was entitled to satisfaction from the estate of James Burnley ; and directed a commissioner to settle the accounts of the administratrix, and to enquire what real estate was then in the possession of the heirs of James Burnley.
    The commissioner reported that the ad-ministratrix had settled her accounts in 1811, and was a large creditor of the estate; that certain persons named by him had purchased land of the heir of James Burnley, pendente lite; and he stated the amount which each ought to pay. In October 1839, the Court made a decree in conformity with this report. Erom this decree Elizabeth Piper applied to this Court for an appeal, which was allowed.
    Grattan, for the appellant.
    Patton, for the appellee.
    
      
      Debts of Ancestor — Liability of Heirs. — In Alexander v. Byrd, 85 Va. 609, 8 S. E. Rep. 577, Itis said : “At common law an estate taken by descent subjects the heir to pay, to the extent of the value of the land all the debts of the ancestor due by any contract of record («. a., a judgment or recognizance), or any contract of specialty; that is, under seal, which expressly binds the heirs. Piper v. Douglas, 3 Gratt. 371; 2 Minor’s Inst. 451-8." Under the present statute, all the real estate of a decedent is assets for the payment of his debts in the same order as personal estate. Va. Code 1887. §§ 2665-2669; W. Va. Code 1899, ch. 86, §§ 3-7, pp. 731-735.
    
   AEBBN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as there is no proof in the record that the bond executed by James Burnley deceased, to Wiley Dickinson, with condition to make *said Dickinson a title to the land therein mentioned, bound the heirs of said James Burnley; and the fact being neither alleged in the bill or admitted by the answers, it was erroneous, in the absence of any such allegation and admission or proof, to decree against the heirs of said Burnley. But the Court is of opinion, that as the bond appears to have been made an exhibit with, and part of the bill, and has been lost or mislaid since it was filed, and as the omission to allege in the bill directly, that the heirs were so bound, and to admit or deny the fact in the answers, may have proceeded from the circumstance that it appeared on the face of the bond that the heirs were so bound, and no notice of this matter seems to have been taken by the parties in the Court below, it would operate as a surprise upon the appellee to hear and decide the cause finally, upon the proofs now in the record, without affording an opportunity to furnish evidence of the fact necessary to sustain the claim. Therefore reversed with costs, and remanded with instructions to give the plaintiff leave if asked for, to amend his bill, and for further proceedings in order to a final decree.  