#### H. G. PARISH vs. JOSIAH TURNER & AL.

An execution from a justice of the peace issued against a defendant in his lifetime. After his death, andheiore the retumday ofthe execution,'it was, for want of chattels, levied on his lands, the levy returned to the County Court, and, after due notice to the heirs, the court ordered the lands to be sold, and that a venditioni issue for that purpose; Held that the levy was good, the proceedings under it regular, and that, when the sale took place, it should have relation back to the levy, and the proceeds should be applied to that execution in preference to executions subsequently issued from a court of record on a judgment against the heirs upon a sd.fa.

Where a party1 is dead at the time of the levy on lands under a justice’s execution, notice to his heirs is as effectual, as if given to the party himself, when living.

The cases of Bowen v. McCullough, N. C. Term, Rep. 263, Wood v, Harrison, 1 Dev. & Bat. 356, Samuel v. Zachery, 4Ired. 377, Lash v. Gibson, 1 Murp. 266, Ellars v. Ray, 2 Hawks. 568, McCarson v. Richardson, 1 Dev. & Bat. 561, and Ricks v. Blount, 4 Dev. 128, cited and approved.

Appeal from the Superior Court of Law of Orange County, at the Fall Term, 1844, his Honor Judge Pearson presiding.

This was a motion to the County Court to direct the application of $ ,- which Was raised from the sale of the real estate of Thomas D. Crain, dec’d. and paid into the office ofthe clerk of the County Court.

Thomas D. Crain died in April, 1842. At the time of his death, justices’ executions in favor of H. G. Parish and others, the present plaintiffs, against the said Crain were in the hands of one E. G. Mangum, a constable, all being tested the 16th or 17th of March 1842. The personal property of the said Crain having been all seized by the Sheriff of Orange, by virtue of an execution issuing from the February Term preceding of the County Court, the said Mangum, on the first day of June 1842, levied the justices’ executions in his hands on a store house in Hillsborough, belonging to the estate of the said Crain, and returned them with the levies en*280dorsed to August Term of the County Court of Orange, when they were placed on the docket. On the, last day of that term, on motion of the counsel of the administrator of Qrajn¡ the Q0urt directed all the said execution cases to be dismissed. At November term following, on affidavit filed, the Court directed the cases to be re-instated on the docket, nunc pro tunc, and ordered notice to issue to the heirs at law of the said Crain of the levies aforesaid. The causes were continued on the docket untilMayTerml843,when,notices having been served,orders were made in three of the cases that writs of Yen. Exp. issue. In the other two cases, for want of the papers, which should accompany the executions, orders were not made, but the cases continued until August Term, when, the papers being filed, orders were made in these also. Writs of Vend. Exp. issued in all these cases from August to November Term, when the property was sold.

The defendants obtained judgments at February Term, 1843, against the administrator of Crain, the plea of fully administered being found in his favor ; and they severally issued writs oí sci.fa. to the heirs at law to shew cause why the real estate should not be sold to satisfy their recoveries. These having been returned served to May Term following, judgments were entered according to the sci.fas. From August Term following, executions against the real estate of Crain were issued on these judgments to the sheriff, and he sold the house and lot levied on under all the process in his hands, and brought the money into court. It was ordered by the County Court that the moneys raised by the sale should be applied in the first place to the satisfaction of the justices’ executions of the plaintiffs’ pro rata, and, if there should be a surplus, theh. to the satisfaction of the executions of the defendants in like manner. From this order the defendants appealed to the Superior Court.

On the appeal coming up to the Superior Court, his Honor declared his opinion to be that the levy of the justices’ executions, the order of sale and the sale were invalid. At common law, lands of a deceased debtor were not subject to the pay*281ment of his debts in the hands of the heir, unless the heir was specially bound. The act of 1784 provides, that sci.fa. to subject the lands may issue after a judgment against the ad. ® ® ministrator. The act of 1794 authorizes justices’ executions to be levied upon land, and returned to court for an order of sale; and the act of 1828 requires that notice shall be served upon the defendant in the execution, before the order of sale is made. The proceeding in this case does not conform to the provision of either act. The act of1784 is out ofthe question. The act of 1794 directs a levy upon the land of the defendant in the execution. The act of 1828 directs notice to the defendant in the execution. There is no provision for a levy upon land in the hands ofthe heir, or for notice to the heir. This proceeding would be validas to personal property ; but there are many distinctions between them. Personal property, when levied on¿ may be sold even after the execution was out, without an order of sale. As to real property, there must be an order of sale. Personal property Was the appropriate fund for the payment of debts at the common law, and the common law provides modes to subject it. Real property was not liable, except by statute, and the mode to subject it must be provided by statute. A court has no authority to adopt, in reference to real property, a mode applicable at common law to personal property.

The court, therefore, adjudged that the order of the County Court be reversed; and that the sheriff be directed to apply the money to the satisfaction of the executions of the defendants, pro rata; the excess,if any, to be paid-over to the heirs at law.

From this judgment the plaintiffs appealed to the Supreme Court.

J H. Bryan for the plaintiffs.

A. W, Venable for the defendants.

The statute provides no way by which heirs can be made parties to a justice’s execution, issued during the lifetime ofthe debtor, but executed af*282ter his death. The only way that such judgments can be ma<^e to su^ject ^ie land to bring a warrant on the judgments against the administrator, and, on a plea of plene ad-minis(ravi¿ found there, then to proceed against the heirs. The judgments of the appellees were regularly obtained against the heirs after the plea of plene administravit found in favor of the administrator. The courts of this State have discountenanced all irregularity in proceedings on executions against the lands of deceased debtors, which will fully appear by reference to Wood v. Harrison, 1 Dev. & Bat. 356, and Den on the demise of Bowen v. McCullough, N. C. Term Reports, 261.

Daniel, J.

The plaintiffs’ justices’ executions were issued in the life time of Crain, and they were levied on the land after his death, but before the return days of the said executions. Were the said levies by the constable good in law ? If a sheriff have in his hands aJi.fa. issued from a court of record, tested before the death of the defendant in it, he may both levy and sell the land, after the death of the defendant, if he do it before the return day. Bowen v. McCullough, N. C. Term, Rep. 261. Wood v. Harrison, 1 Dev. & Bat. 356. But if the sheriff levies on land, and does not sell it before the return term, and the defendant dies, then a venditioni cannot issue to sell it before the heirs are made parties by scire facias. Samuel v. Zachery, 4 Ired. 377. But it is said, that under a justice’s execution, the land is bound only from the time of levy by the constable. That is true. Lash v. Gibson, 1 Mur. 266. Ellars v. Ray, 2 Hawks, 568. But by the act of Assembly, (Rev. Stat. c. 268, s. 16,) the personal property of the defendant, in a justice’s execution, is bound only from the levy. Yet this court has decided, (McCarson v. Richardson, 1 Dev. & Bat. 561,) that if the defendant die after the teste of such execution, and before the levy, his administrator is bound thereby, and the goods in his hands may be levied upon and sold, without a scire facias to revive the *283judgment. The court furthermore said, that the act of 1828 was passed only for the protection of purchasers from the defendant in the execution. In this State, the rule of the common law, as to the lien of a fi.fa. upon chattels, has been extended to land, when sought to be subjected by that writ. Ricks v. Blount, 4 Dev. 128. But in favor of purchasers from the defendant in the execution, and also in favor of other execution creditors, who may first levy on it, the land is not bound until the levy is actually made by the officer, under a justice’s execution. If the defendant in a justice’s execution die after the issuing thereof, and before the return day, then his heir at law cannot stand in a better situation, to resist the constable’s right to levy on the land, (which was the defendant’s at the teste of the execution) than the administrator can since the act of 1828, as to the chattels. When in such cases the land is levied on, and the proceedings are returned into court for an order of sale, as the act of assembly of 1828 requires the officer to serve the defendant with notice in writing, at least five days before the term to which the execution is returnable, although the act has not in so many words declared, that if the defendant in the execution should die, that the said notice should then be served on the heir or devisee; still, we think it is so clearly within the meaning of the Legislature, that the heir should be notified, .that we must construe it, as if such words were actually inserted in the act, in order to carry out the evident meaning of the Legislature. The notice to the heirs was in the nature of a scire facias, and perhaps, on the return of it into court, they might have shewn that there was personal property, which the constable knew of and might have levied on, sufficient to satisfy the debt; or, they, as heirs, might have shown that they had a right to retain their own debt against the land, or any other proper matter to induce the court to stay the order of sale. In England, by the statute of Frauds, 29 Car. 2, it is enacted, that no writ of fie-ri facias, or other writ of execution, shall bind the property of the goods of the party against whom such writ of execu*284tion issued forth) but from the time that such writ shall be delivered to the sheriff. But, notwithstanding, the courts of that country decided that the statute was passed solely to protect purchasers, and that the goods are bound as against the defendant and his representatives, as they were at the common law from the teste ; and, therefore, goods of a testator in the hands of his executor, may be taken on a fi. fa. against his testator bearing teste before his death. Bragner v. Langmead, 7 T. R. 20. Wagborne v. Langmead, 1 Bos. & Pul. 571. Watson on Sheriffs, 176, 177.

We have seen that, in this State, the general rule as to the lien under a fieri facias upon chattels and lands, stands upon the same footing. Then as the act of 1828 binds personal property only from the levy, in favor of purchasers, and not in favor of the executor or administrator, so we must now declare that the decisions, which have heretofore been made in this State, that the constable’s levy on land under a justice’s execution, bound the land only from the levy, were made only to protect purchasers from the defendant in the execution, and also such execution creditors, as had made a prior levy, although under a junior execution. The heir must stand, as his ancestor, the defendant in the execution, did, with the exception of the privilege of pleading a retainer, &c. on the return into court of the notice to him to shew cause why the order of sale should not be made. The argument for the defendant is founded on the omission in our statutes to give a scire facias against heirs, except upon a judgment first had against the administrator, and on the further circumstance that at common law an action of debt would not lie against the heir on a justice’s judgment. But the inference does not follow, that therefore there is no direct remedy against the lands ofthe deceased debtor, but only through the circuitous route of a suit on the judgment against the administrator. Why should the administrator be sued? It is only for the protection ofthe heir by having the personal estate applied first to the satisfaction of the debt. Now, the very levy by the constable implies and affirms that there is no personal estate; and, being mad® *285in the life time of the ancestor, either actually, or, in legal contemplation, by relation, that fact is established against the heir, because it was established against the ancestor. But suppose the return of the constable not tobe conclusive on that point, and that it is open to the heir to shew that there are personal assets in the hands of the administrator — a point not now necessary to be decided, and on which we express no opinion — ■ it does not follow, that the administrator must be sued in the first place; but only that the heir may plead that there are personal assets, and, if it be so found, that the creditor cannot have execution of the lands. It is true that in such case he could not have execution against the administrator, as provided by the statute upon a verdict on the issue taken by the heir upon the point of assets, because the administrator would not be a party in any way to the proceeding. To proceed in this way against the heir would, therefore, be at a risk to the creditor of paying cost; whereas, if he brought in the administrator, and then the heir, according to our statute, he must have execution against the administrator or the land descended, for both debt and costs. Then, no possible injury can be sustained by the heir by such a proceeding; for either he may avail himself of the prior liability of the personal estate, or, if not, it is only because his ancestor was concluded on that point. Therefore, the creditor by judgment against the ancestor ought not to be compelled to go through all the forms of an origina^ writ, before he can touch the debtor’s land. And although our acts do not give any original action against the heir, and at the common law he is only liable in debt upon the ancestor’s obligation, in which he bound theheir, and not on a judgment, yet the creditor is not remediless upon such judgment against the heir and all others, the terre-tenants, to subject the lands to execution. Sir William Hobart's case, 3 Rep. 12, 2 Saund. Rep. 7, Note 4. For the law will not deprive the creditor of the benefit of his lien on the land by the death of the debtor. Such would be the case, if the judgment were in a court of record. Within the same reason is the lien created *286by the levy of a justice’s execution in the ancestor’s life time. Suppose, for exampie, that this levy had in fact been made and returned before Crain died, and that notice had been given to bim, what reason, founded in justice or law, can be assigned for putting a full stop to that suit, annulling the levy and lien on the land, and turning the creditor back to anexv suit against the administrator, and leaving him no better off than a simple contract creditor ? It stands precisely on the principle on which the common law gives the scieri facias on a judgment against the terre-tenants; and the creditor is entitled to have satisfaction out of the lands levied on, as a fund specially appropriated, as against the ancestor and the heir, to that purpose. It is not material whether the heirs could have pleaded personal assets or not. If they could, they did not; and judgment was taken against them to sell the land levied on, and the execution refers to and enforces that levy; and it is not for another creditor to dispute its propriety, who comes in afterwards.

We are of opinion that the judgment of the Superior Court should be reversed, and that the judgment of the County Court should be affirmed.

Pek Curiam, Judgment accordingly.