Opinion
(December Term, 1845.)
1. Although a scire facias against the heirs and terre-tenants need not name them, but leave it to the sheriff to summon and return them, yet the judgment is always against particular persons, and the writ of execution must name the same persons.
2. An execution commanding the sheriff to sell the lands of A. B., deceased, "in the hands of his heirs," without naming the heirs, is void, and a sale under it confers no title.
APPEAL from MARTIN Fall Term, 1845; Settle, J.
J. H. Bryan for plaintiff.
No counsel for defendant.
Ejectment. The declaration contains four counts. The first is on the joint demise of Mary Roberson, Jesse Barnes and his wife, Nancy, Joseph E. Blount, Joshua Smithwick, Julius Robbins and his wife, Susan, and Martha Ann Smithwick; the second, on the (91) demise of Mary Roberson; the third, on that of Jesse Barnes and his wife, Nancy, and the fourth, on the joint demise of the other parties named in the first count. Joseph Roberson died seized of the land, leaving the above named parties, together with Martha Cherry, the wife of Alfred Cherry, his heirs at law. Mary Roberson, the tenant for life, is dead. After the death of Joseph Roberson, Mary Roberson administered upon his estate. Two warrants were issued against her, one at the instance of John Hoyt and the other at that of James Slade; and upon their return before the magistrate, judgments were obtained to the amount of the claims of the respective plaintiffs. The defendant, the administratrix, having suggested to the magistrate the want of assets, the cases were by him transferred to the county court, according to the provisions of the act of the General Assembly. There the defendant in each case pleaded that she had fully administered the assets of the intestate which had come to her hands, and that she had none wherewith to satisfy the demands of the respective plaintiffs. The truth of the plea was admitted by the plaintiffs, and upon the suggestion that real estate had descended to the heirs of Joseph Roberson, and, on motion, the court ordered that a scire facias should issue in each case against the heirs. Scire facias accordingly did issue against the heirs, naming them individually, to show cause why executions should not issue to subject the lands descended to the satisfaction of the judgments; and upon their return, executed, judgments were obtained according to the scire facias, and executions ordered to issue. Under this order of the court the process issued which is alleged to be an execution, and under which the land in question was sold by the sheriff, and the defendant became the purchaser and took possession. To these judgments the plaintiff Jesse Barnes, and his wife, are not parties. The process under which the land was sold commanded the sheriff "that of the lands and (92) tenements of the heirs of Joseph Roberson, descended, you cause to be made," etc. The introduction of the executions and deed from the sheriff was opposed by the plaintiff, on the ground that the executions were void, and conferred no authority on the sheriff to sell. The objection was overruled, and under the charge of the presiding judge the jury found a verdict for the defendant on the first, second, and fourth counts, and for the plaintiff on the third.
We think his Honor erred, and that the executions were void, conferring on the sheriff no power to sell, and, of course, that the defendant acquired no title to the land under the sheriff's deed. The title of Joseph Roberson is a common starting point both to the plaintiff and defendant; both parties claim under him, and there is no controversy as to the plaintiffs being his heirs. The defendant claiming under an execution sale must show not only a judgment against the heirs, but also an execution.
Until the act of 1784 there was no law in this State by which the lands of a deceased debtor could be subjected, in the hands of his heirs or devisees to the payment of his simple contract debts. That act directs that when in an action at law an executor or administrator should plead fully administered, no assets, or not sufficient assets to satisfy the plaintiff's demand, and such plea should be found in favor of the defendant, the plaintiff may proceed to ascertain his demand, and sign judgment; but before taking out execution against the real estate of the deceased debtor a writ of scire facias shall issue, summoning the heirs or devisees to show cause why execution shall not issue against the real estate (93) of such debtor for the amount of such judgment, or so much thereof as the personal assets were not sufficient to discharge; and if the judgment should pass against such heirs or devisees, or any of them, execution shall issue against the lands of the deceased debtor in their hands. Hoyt obtained a judgment against the administratrix of Joseph Roberson, but upon her denial of assets, under the provision of the act of the General Assembly, the magistrate returned the proceedings to the county court, when the plaintiff, instead of putting the defendant to the trouble of showing she had no assets, admitted the fact to be so, and suggested that real estate had descended to the heirs of the debtor. It is objected that the state of the assets was not passed on by the jury; that they have not found there were no assets. It is sufficient if the record shows that such proceedings were had in relation to the assets as authorized the court to give judgment against the land, and we think it does. The finding of the state of the assets between the creditor and the administratrix is conclusive only between them. The truth of that finding may be controverted by the heirs, when called in. It is, therefore, a matter of mere form how their state is found, whether by a jury or by the admission of the party.
The court ordered a scire facias to issue to the heirs, which was done, and they failed to make any defense; judgment was taken against them for the amount of the debt, and an execution ordered by the court to issue to sell the descended lands. The record of the suit in the county court is very scant and defective and the scire facias very in artificially drawn; but enough of substance appears in each to warrant the judgment against the heirs and the issuing of an execution. Had the paper produced in this case, and called an execution, been such as the law so regards, the title of the defendant would have been, under the sale and sheriff's deed, good against all the parties to the scire facias; but it is not. An execution is the fruit of the law, fructus et effectus (94) legis. But in order to have that effect it must pursue the judgment. In the case of Hoyt the judgment on the scire facias is against Mary Roberson, Joshua A. Roberson, Alfred S. Cherry and his wife, Martha, Mary Emily Smithwick, Martha Ann Smithwick, Joshua E. Smithwick, and Susan Smithwick, heirs of Joseph Roberson. And against these individuals the court ordered an execution to issue to sell the lands descended to them. The execution does not so issue. It commands the sheriff "that of the lands and tenements of the heirs at law of Joseph Roberson, descended, you cause to be made," etc. Every execution must issue in the name of the plaintiff, and against the defendant by name, otherwise it will not be warranted by the judgment, because the latter is against the defendant as he is named in it. 2 Tidd's Prac., 1121; 2 Saund., 72, i; 1 Lord Ray., 244; Pennoyer v. Brace, and the same case, 1 Sal., 319. It is not, then, sufficient for the execution to issue against the defendants as heirs, or by the name of heirs; they must be named in it; otherwise, it is void, and conveys no authority to the sheriff to sell. Newsom v. Newsom, 26 N.C. 387.
RUFFIN, C. J. The lessors of the plaintiff claim the premises as the five coheirs of Joseph Roberson, who died seized in fee; and the defendant claims by a sheriff's sale under a fieri facias. The facts are these: A creditor of the deceased confessed the plea of plene administravit by the personal representative, and took judgment ascertaining his debt, and sued out a scire facias against certain persons as heirs of the deceased. The persons against whom the writ issued were four only of the heirs, omitting Jesse Barnes and his wife, Nancy, who was one of the heirs; and there was judgment against the lands descended to the four persons named in the process. A writ of fieri facias then issued, commanding the sheriff that "of the lands and tenements of the heirs at law of Joseph Roberson, deceased, you cause to be made the (95) sum, etc., which was lately adjudged by, etc., in a suit in which J. S. was plaintiff and they defendants," etc. The question is whether the sheriff's sale under those proceedings is valid or not.
It is very clear that the sale passed nothing. Of course, we are not to enter into the inquiry whether the proceedings in the suit were regular or the judgment erroneous, for it cannot be questioned collaterally, however erroneous it might be. But the point is whether what was done under the judgment was properly done. Now, although a scire facias against heirs and terre-tenants need not name them, but leave it to the sheriff to summon and return them, yet the judgment is always against particular persons; and it was so in this case. And the writ of execution must name the same persons, first, because it is necessary that it should conform to the judgment in all respects, and, secondly, that the sheriff may know certainly whose property he is to sell. This writ runs against the lands descended "to the heirs of Joseph Roberson," without saying who they are, and thus leaving it to the sheriff to judge thereof, which is often a difficult point, and is one on which there is no opportunity for the person to be heard in court. Moreover, if the general description were sufficient in a judgment and execution, this writ would be void, because it purports to issue on a judgment rendered against "the heirs," who are in fact five in number, whereas the judgment actually was against four persons by their respective Christian and surnames, who were some of the heirs. The fieri facias was, therefore, void, and the plaintiff ought to have recovered the whole premises.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Smith v. Bryan, 34 N.C. 16; Johnson v. Maddera, 44 N.C. 55; Morrison v. McLaughlin, 88 N.C. 255; Frye v. Currie, 91 N.C. 438.
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