
    Richard Ashe and Cato Ashe, devisees of John Ashe, deceased, against George Drennis.
    
      Charleston District,
    
    1801.
    Aii executor^ refusal or omission to file his plea of ptene aclminh* traroit, with a view of subjecting lands to sale for payment of debts, will not deprive a judgment creditor of selling any part of the lands of the estate which are made chattels for payment of debts in this country, nor will a purchaser’s title be affected by such omission*
    TRESPASS to try title to a lot of land in King-street, in which there was a verdict for defendant.
    Motion for a new trial.
    The case was as follows. Darnel Ward, a creditor of the deceased John Ashe, brought his suit for the recovery of a debt, and obtained judgment against the estate of the deceased, upon which an execution issued, and the lot in question was seized and sold by the sheriff of Charleston district, in satisfaction of this debt, at which sale the defendant was the purchaser, who obtained regular titles from the sheriff, and afterwards built and made considerable improvements on the same.
    The plaintiffs were devisees under the will of John Ashe, the testator, who had devised this lot specifically to them, with other parts of his estate. It was on this specific devise that this suit was founded.
    On the trial of this cause, it was urged, that John Ashe¡ the acting executor, had not filed his plea of plene adminis-travit, in the suit with Ward, by which it would have appeared that there were negroes and personal property enough, and more than sufficient, to have paid off all the debts of the estate, and to have left a considerable overplus, by which means the lands, and in particular this specific devise, would not have been affected by this judgment and execution.
    The judge (Ghimke) who tried this cause, directed the jury to find a verdict for the defendant, on the ground that a bona fide purchaser at sheriff’s sale, had nothing to d® with the conduct or misconduct of an executor of an estate* who suffers a judgment to go against him. That it was his fault not to file a plea, in order to save the real estate from the effects of the execution, and to bring forward chattels or personal effects for that purpose. But whatever that misconduct might have been, a bona fide purchaser at a sheriff’s Sale, who purchases and pays his money, and who builds upon and improves the premises, ought not to be at all affected by the omissions or neglect of the executor. The jury found agreeably to the judge’s charge ; and this was a motion for a new trial, for misdirection, &c.
    Mr. Baily, in support of this motion,
    relied on the old rule of court, requiring executors to file the account of their administration, with their plea of plene administravit annexed, by which it might appear, that all the personal assets of the estate of the deceased were expended, before lands were to be sold for payment of debts, and insisted, that unless this rule was strictly adhered to, heirs and devisees might be defrauded out of their estates devised to them by testators ; and that in the present case, the personal estate of the deceased was large and ample, much more than sufficient to pay off all his debts, as would" appear by the appraisement and return into the ordinary’s office. That unless this rule was observed by executors, the mischiefs might be great and serious, and more especially to minors, who might be ruined by the neglects and omissions of executors, and it was much better that estates should make good all da.’wges which might arise in a case like the present, than that de-visees should be deprived of the benevolent intentions of a testator.
    On the part of the defendant, against the motion, it was urged, that the right of honest creditors, and bona Jide pur-, chasers, under sales made by operation of lato, in pursuance of judgments and executions, were as high and as much deserving the attention of the courts of justice, as the rights of heirs and devisees. That the latter were acts of bounty, but the former acts of justice, and it was an old adage, that a man ought to be just before he is generous ; nay, the former claims stood in a much higher degree than the latter. It was admitted that the old rule of court did require executors and administrators to file their accounts of administration, with their pleas of plene adm.nistravit; but this was intended for the benefit of estates, and those claiming under the testator, and to justify executors, and to shew that they had no effects in their hands to pay debts ; and if the executors or administrators should lie regardless of their own conduct, as well as of the interests of the estate, and those claiming under the bounty of a testator, that was no reason why creditors should be deprived of th ir rights, which were paramount to the rights of heirs or devisees. Neither the rule of court, nor any other regulation of practice, can alter the law of the land, which subjects lands in this country to the payment of debts, whatever the line of conduct of executors may be in the exercise of their duty; for it is clear if an executor will not produce personal estate, any land that can be found must go for the payment of just debts.
   The Judges,

after considering this case, observed, that it is always in the power of an unwilling executor, if he pleases, to beep personal estate out of view, so as to prevent a sheriff from seizing or selling them in satisfaction of an execution. Whereas, that cannot be done with real estates; they are, therefore, a surer pledge for satisfaction of creditors than any kind of chattels j and they are made chattels ir, this country for payment of debts; and it was by no means unfrequent that executors chose to retain negroes, who compose the principal part of the chattels of this country, in preference to. land, as a more productive kind of property ; it would, therefore, be extremely unjust, to keep a creditor out of his money, under these circumstances. The rule of court (as has been very properly observed) was made for the advantage of estates, under an idea that it would be most for the interest of an estate, to exhaust chattels before lands were disposed of, for the benefit of those interested in it; and for the satisfaction of executors, to shew they had no effects in their hands to pay debts. But, if executors were negligent in filing an account of the estate, with their pleas of plene administravit, by which, it might appear, they had exhausted all the chattels of the estate, that was no reason why just creditors should be delayed ; and if heirs or devisees are injured by it, let them look to the executors for any damages which may arise from their misconduct. Bona ■fide purchasers at sheriffs’ sales, were not to be affected by their omissions or neglects.

Rule for new trial discharged.

Present, Geimke, Waties, Bay and Johnson.  