Supreme Court of North Carolina, 1835

Doe Ex Dem. Wood v. Harrison

Supreme Court of North Carolina · Decided December 5, 1835 · Ruffin

18 N.C. 356

Counsel

W. C. Stanly for the plaintiff. J. H. Bryan for the defendant. — The principal question in this case is, whether, upon a judgment obtained against a decedent in his lifetime, his land can be sold undera fi. fa . after his death, without making the heirs parties by ought to issue; for there the heirs and terre-tenant are bound to contribute rateably; and unless all be warned, the others are not obliged to answer. 2 Saun, Rep. 7, n. 10; and it may be pleaded in abatement, that they are not all made parties. In this state, land is subject in the first instance to the fi. fa . and a fi. fa . having been issued in the lifetime of the judgment debtor, his land was bound by the lien; which lien would be lost, if the creditor were bound to suspend his course of executions, and sue out a sci. fa . The sci. fa . in England, upon a judgment or recognizance, is considered so much in the nature of an action, that he against whom it is issued may avail himself of his nonage by prayer, and the parol will demur. 1 Saun. Rep. 7, n. 4.

Opinion of the Court

Ruffin, Chief Justice.

— The record presents but a single question; which is, whether land can be sold upon a fieri facias, which issues and bears teste after the death of the debtor. Upon that question, the case of Den ex dem. Bowen v. M'Culloch, N. C. Term Rep. 261, is a precise authority in the negative. A point is there left open, whether land is bound by .the judgment, or only by the fieri facias, which has been since so decided as to restrict the lien to the teste of the fieri facias, if that be the process *358 used. Consequently, the sale must be made upon a writ having relation to a day previous to the debtor’s death, or the heir must be brought in by scire facias. The authorities there cited establish the necessity of process against the executor in similar circumstances. If he is not to be concluded without being heard, surely the heir is equally entitled to the defences, that the executor has paid the debt, or that the heir has paid other judgment debts to the value of the land descended, or the like.

Per Curiam. Judgment affirmed.

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