#### GIDEON C. MARCHANT vs. MAXCY SANDERLIN.

June 1843

When a guardian of an infant, under an order of the County Court, sells his ward’s land for payment of the debts of the ancestor, he is bound to serve the same priority in the payment of the debts, as an administrator or executor in applying the personal assets.

The case of Blount v Rieles, 4 Dev. 128. cited and approved.

Appeal from the Superior Court of Law of Camden County, at Fall Term, 1842, his Honor Judge Bailey presiding.

This was a proceeding under the act of Assembly by scire facias against the guardian of the heirs of Edward Saunders, to subject the proceeds of the land of the heirs to the payment of the plaintiff’s judgment. The plaintiff commenced his action against the administrator of Edward Saunders upon an open account, who pleaded that he had fully administered, which plea was admitted to be true by the plaintiff, and thereupon he proceeded to ascertain the amount of his demand and took judgment against the heirs, and issued scire facias against them, and had judgment thereon for the amount set forth in the scire facias. The defendant Sanderlin is guardian to the heirs ol Edward Saunders, and, having notice of debts due from his wards on account of their ancestor, filed his petition in the County Court of Camden, and obtained an order for the sale of the lands descended to his wards from their said ancestor. The lands were sold for a sum more than sufficient to satisfy the plaintiff’s claim, and the funds are now in the hands of the defendant as guardian. To the scire facias, the defendant pleaded that there were other judgments against his wards, obtained upon bonds of the said Edward Saunders, yet un*502paid, and that he had not assets to satisfy them, and also the plaintiff’s demand. To this plea there was a general demurrer, and it was also admitted that the plaintiff’s judgment was obtained, before the judgments upon the bonds mentioned. The defendant insisted that the fund in his hands, arising from the proceeds of the lands, were assets for the benefit of creditors, to be applied, as would be the case of personal assets in the hands of executors or administrators, to the payment of debts of the highest dignity first, His Honor, being of opinion that the defendant must first satisfy the judgments obtained on bonds, gave judgment for the defendant, from which the plaintiff appealed.

Kinney for the plaintiff.

A. Moore for the defendant.

Ruffin, C. J.

We think the judgment must be affirmed. The act of 1789, Rev. Stat. c. 53, s. 11, enacts, that the proceeds of sales made by a guardian of the estates of the wards, under an order of the court, “shall be considered as assets in the hands of the guardian for the benefit of the creditors, in like manner as assets in the hands of an administrator or executor, and the same proceedings may be had against such guardian with respect to the assets aforesaid, as might be had or taken against an executor or administrator in similar cases and we think this provision conclusive upon the question. It is said for the plaintiff, that under the act of 1784, the dignity of the debt does not determine the priority of satisfaction out of the land descended, but that the. creditor, who first gets a judgment, may proceed to an immediate sale; and it is hence inferred, that, when the land is sold by the guardian, the proceeds are to be applied in like manner, as there is no reason for changing the order of payment. But to that it is to be replied, that the act of 1784 in itself establishes no priority among the creditors, as against land descended, but simply renders it liable for all debts in a particular manner; and the priority results, by *503adjudication, from the fact, that the creditor obtains satisfaction by sale, and that the purchaser must be protected. It is not, in truth, the date of the several judgments against the executor or the heir, that determines the preferable right to satisfaction among the creditors ; but he, who gets the first specific lien by execution and a sale under it, entitles himself to the money. Blount v Ricks, 4 Dev. 128. But when the land is turned into money by the guardian, a necessity arises, that, the law should, for his security and to prevent favoritism to creditors, prescribe some order for administering the fund ; and it has seemed good to the Legislature to adopt the common law dignity of debts, as known in the administration of personal assets. If the act does not mean that, we are unable to put any sensible interpretation upon its language ; and we see a necessity for some such provision. But the correctness of this construction is the more probable from a reference to that part of the act, sec. 16, which provides ior the case of a sale by an adult heir or de-visee himself; “in which case all creditors shall be preferred, as in actions against executors and administrators.”— These words, with the rest of the provision as it stood originally, are taken from the statute of fraudulent devises in England. 3 and 4 W. and M., ch. 14, of which it is the settled construction, that the dignity of debts, as due by judgments or specialties, is to be observed. The same meaning must be put on that part of our act, of which the meaning, indeed, cannot bo mistaken, since there can be no other preference, In the like sense we are obliged to understand similar language in another part of the act, providing for the application, among creditors, of the proceeds of land sold by the guardian of an infant heir or devisee.

Per Curiam. Judgment affirmed.