#### DOE ex dem. HANNAH WOOD v. JAMES HARRISON.

Land cannot bo sold under a fi.fa. which issues and boars teste, afier the death of the debtor, without bringing in the heirs by scire facias: and this, although the fi.fa. may bo an alias, the original of which issued and bore teste in the lifetime of the debtor.

Ejectment tried at Jones, on the last Circuit, before his Honor Judge Donneee.

The plaintiff’s lessor claimed by descent from her father, Martin Philyan, who, it appeared, died seized of the land mentioned in the declaration, in the month of June, 1813. The .defendant set up title to the same land by purchase at an execution' sale under a judgment obtained against Martin Philyan, at May Term, 1812, of Jones County Court. The judgment was produced, as were also five writs of fi. fa. regularly issued and returned at the successive terms of the Court from August Term, 1812, to, November Term, 1813. On each of these writs of fi. fa. was endorsed “no sale,” and nothing more. Ño writ of fi. fa. from November Term, 1313, returnable to the ensuing February Term, was produced; but evidence wras offered tending to show that such writ did issue, was levied upon the land in dispute, and sold to the person from whom the defendant claimed. His Honor instructed the jury, that as no levy appeared to have been made upon the land in the lifetime of Philyan, and no scire facias to have issued against his heirs, the title of the latter could not have been divested, though the writ of fi. fa. had issued from November Term, 1813, and been regularly levied, and the land sold and conveyed by the sheriff, as contended for by the defendant. Under this instruction, a verdict was returned for the plain!iff; and the' defendant appealed.

W.C. Stanly for the plaintiff.

J. II. 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 *357 sci. fa. It may be admitted that, in England, before an elegit, which is the only execution to subject real estates, can be sued out, a scire facias 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.

Since it is hold here that the judgment, (which in England is the ground of the charge on the terre-tenant,) is no lien, if a /¿. fa. be issued, the court should be more solicitous to preserve the lien of the fi. fa. In this case, the first fi. fa. bearing teste in the life time of the debtor, a lien was thereby created, and the land might have been sold under that. If this be’ true, it has repeatedly been decided that the lien is continued by aliases regularly issued. Yarbrough v. Stale Bank, 2 Dev. Rep. 23. Palmer v. Clark, Ibid. 354-359. “ The security of the creditor is founded on the teste of the execution, and derives no aid from the levy.” Per Taylor, C. J. in Frost et ux v. Etheridge, 1 Dev. Rep. 34. Though he die before the return of the execution, the land may still be sold, &c. Per Hall, J. Same case, 43-296.

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 *358used. 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.