Tuck v. . Walker
Tuck v. . Walker
Opinion of the Court
after stating the facts: When it becomes necessary to sell the real estate of a decedent to make assets, The Code, § 1446 provides, in explicit terms, that the Court may decree a sale of “all real estate that deceased may have conveyed with intent to defraud his creditors, and all rights of entry and rights of action, and all other rights and interests in lands, tenements or hereditaments, which he might devise, or by law would descend to his heirs,” and the language has been sp construed by this Court. Mannix v. Ihrie, 76 N. C., 299; Heck v. Williams, 79 N. C., 437.
It is well settled that, though there may be unsatisfied judgments constituting a lien upon the land of a debtor, when he dies the judgment creditor is not allowed to sell it under execution, but the administration of the whole estate is placed in the hands of the personal representative, who is required first to apply the personal assets in payment of the debts, and if they prove insufficient, then the statute prescribes how the land may be subjected and sold so as to avoid a needless sacrifice by selling any of it for cash, or a greater quantity at all than is required to discharge the indebtedness. The Code, §§ 1436 to 1446; Sawyers v. Sawyers, 93 N. C., 325; Mauney v. Holmes, 87 N. C., 428; Lee v. Eure, 82 N. C., 428; Williams v. Weaver, 94 N. C., 134.
*289 We conclude, therefore, that this action cannot be maintained except by the personal representative of W. H. Win-stead, or by making him a party, if he refuse to discharge the debt out of the personal assets, or to institute a proceeding to have the land sold to satisfy it. Wilson v. Pearson, 102 N. C., 290.
There is error. Judgment reversed.
Reference
- Full Case Name
- Ida T. Tuck v. Jesse D. Walker.
- Cited By
- 11 cases
- Status
- Published
- Syllabus
- Judgment Creditor — Sale of Land for Assets — Personal Properly— Administrators — Demurrer — The Code — Fraud of Creditors. 1. A judgment was obtained and docketed in 1878 against one W., who afterwards purchased a tract of land, and, being at the time indebted beyond his ability to pay, executed a deed to one C. The assignee, for value of the judgment brought action to declare void the conveyance, and to have the land' sold in discharge thereof. The defendant demurred that only the administrator cf W. could maintain' an action to sell W.’s land: Held, that the demurrer must be sustained. 2. The Code, §1446, provides explicitly for sale of lands for assets which have been conveyed in fraud of creditors. 3. The administrator, and not the judgment creditor, is the proper person to sell lands to pay judgment debts, for it is the duty of the administrator to exhaust the personal property for this purpose before the real estate can be reached.