#### JAMES J. COLEMAN v. A. H. VANN et al.

(Filed 22 November, 1933.)

1. Judgments It f: Wills F i — Judgment against executor may not be attacked collaterally by him or by devisees in absence of allegations of fraud.

An executor may not collaterally attack a judgment rendered against him in his representative capacity by setting up matters concluded in the judgment in the creditor’s subsequent action in the nature of a creditor’s bill, nor may the devisees of the testator collaterally attack the judgment in such action in the absence of allegations of fraud and collusion.

2. Pleadings I a—

Where defendants’ answer alleges matters in defense which had been determined and precluded by a judgment against them or their privy, a motion to strike out such allegations is properly allowed.

Appeal by defendants from Granm&r, J., at Chambers, in tbe town of Louisburg, N. C., on 23 May, 1933.

Affirmed.

This is an action in tbe nature of a creditor’s bill to compel tbe defendants, executors of S. C. Yann, deceased, to sell tbe lands of their testator, wbicb were devised by bis last will and testament, to their co-defendants, to make assets for tbe payment of a judgment recovered by tbe plaintiff of said executors in tbe Superior Court of Franklin County, for tbe sum of $2,500, with interest and costs.

Tbe action was beard on tbe motion of tbe plaintiff that certain paragraphs of tbe answer filed by tbe defendants to tbe complaint be stricken therefrom, on tbe ground that tbe allegations in said paragraph do not constitute defenses to tbe action, but are sham, irrelevant and frivolous pleading.

*437Tbe motion was allowed, and tbe defendants appealed from tbe order striking tbe said paragraphs from tbe answer.

Simms & Simms and W. L. Lumpkin for plaintiff.

Gr. M. Beam and J. H. Bridgers for defendants.

CoNnoe, J.

Tbe defenses set up in tbe paragraphs of tbe answer, which have been stricken therefrom, are not available to the defendants in this action.

Tbe judgment recovered by tbe plaintiff against tbe defendants, executors of S. C. Yann, deceased, is conclusive upon them, and cannot be attacked by them collaterally, in this action. Tbe executors are precluded by tbe judgment as to all matters alleged in said paragraphs as defenses to this action.

In tbe absence of allegations in their answer to tbe effect that tbe judgment was recovered by tbe plaintiff of tbe executors of S. C. Yann, deceased, by fraud and collusion between them, tbe defendants, devisees of tbe said S. C. Yann, deceased, are also bound by tbe judgment. Tbe said devisees cannot in this action avail themselves as against tbe plaintiff, of tbe defenses set up in said paragraphs, without alleging that tbe judgment was procured by reason of fraudulent collusion between tbe plaintiff and tbe executors. For obvious reasons, tbe answer contains no such allegations. Tbe motion of the defendants first made in this Court that they be allowed to amend their answer is denied. Tbe proposed amendments, if allowed, would not avail tbe defendants in this respect.

In Best v. Best, 161 N. C., 513, 77 S. E., 762, it is said: “It is now very generally understood that on a petition to sell land for assets, tbe heirs, in protection of tbe real estate, may plead tbe statute of limitations whenever such plea would be available to tbe executor or administrator in protection of tbe personalty; but, when the claim is evidenced by a subsisting judgment against tbe executor or administrator, tbe heir is concluded as to its validity, unless tbe judgment can be successfully assailed on tbe ground of fraud and collusion, or collusive fraud, as expressed in some of tbe cases.”

In McNair v. Cooper, 174 N. C., 566, 94 S. E., 98, it is said to be well settled in this State that tbe heirs at law may attack any claim allowed by an administrator, even if reduced to judgment, if it can be shown that tbe judgment was rendered through fraud and collusion between tbe plaintiff and tbe administrator. This principle is applicable in tbe instant case. Tbe order is

Affirmed.