Opinion
April Term, 1794
1. MACAY, J. The statute 5 George II., ch. 7, provides for the sale of land for debts, and the making them liable for all just debts in the hands of the heir, but does not alter the distinction between real and personal estate. Real descends to the heirs, personal goes to the executors; the lands in hands of the heirs cannot be affected by a judgment against the executors, no more than the personal estate in the hands of the executors can be affected by a judgment against the heirs. But per ASHE, J. The statute meant to make lands liable to the payment of debts; and as to the payment of debts, are to be proceeded against as personal chattels. They descend to the heir chargeable with all such debts as may be recovered against the executors. WILLIAMS, J., on a previous case expressed an opinion similar to MACAY'S.
2. If a deed be lost and its former existence proved, a copy, and if no copy, parol evidence may be given of its contents.
TRESPASS in ejectment, wherein the plaintiff deduced his title as follows: This land was granted 2 April, 1741, by the Earl Granville (44) to Benjamin McKinnie; by him 17 October, 1745, to William Kinchen; by him 19 October, 1746, to David Hopper; by him 12 September, 1747, to one Carter; on 3 September, 1760, it was conveyed by one Hays to Dewey, which recites a deed from Carter to Hays; by Dewey to Stuart, 14 February, 1765; by Stuart to Joseph Long, 20 July, 1768; and by Long to Blake Baker, the elder, 16 December, 1768; which Blake Baker, the elder, was the father of the lessor of the plaintiff, to whom the plaintiff is heir at law; and the said Blake Baker, the elder, was possessed and died possessed in 1769.
Haywood for plaintiff. (45)
W. R. Davie for defendant. (60)
It was further proven on the part of the plaintiff that Carter was in possession for seven years and upwards, and also that after his possession the said Hays was in possession for a great length of time before he sold to Dewey, and used the land by getting timber off it; that Dewey was possessed two or three years, and that Long was possessed for some time; and that during the time of Hay's possession Carter frequently declared that he had conveyed it to Hays.
The defendant on his part set up a title as follows: That one James McNeil obtained a judgment for debt and costs against the executors of Blake Baker, the elder, and took out execution thereon, tested in April, 1772, which execution commanded the sheriff that he should levy of the goods and chattels, lands and tenements in the hands of the executors, etc. And that by virtue thereof the sheriff sold the lands in question, and executed a deed for the same bearing date 22 February, 1773, to Joseph Montfort who by his will devised that his executors should sell; who sold accordingly to one Wilburn, who sold to J. Webb, who died leaving the defendant his heir at law. The judgment was obtained in April, 1772, and two pleas had been pleaded by the executors, to wit, plene administravit and non assumpsit, and the jury gave their verdict upon the other plea only, and there was a suggestion on record that there were lands, etc. The deed to Montfort, when produced, described the land thus: "Known by the name of Hays, formerly given by James Carter to James Hays."
The whole weight of this labored case seems reducible to this question, What is the true construction of 5 Geo. II., ch. 7? I am of opinion this act meant to provide for two things: the sale of lands for debts, and the making them liable to all just debts in the hands of the heir; and I am of opinion that since the act of Geo. II. the same distinctions between real and personal property is to be kept up as before, and the lands, upon the death of an ancestor, descend to the heir, and personal chattels go to the executor as before; and lands in the hands of an heir are no more to be affected by an action or judgment against the executor than the personal estate in the hands of an executor are to be affected by a judgment against the heir. Their interests are totally distinct and separate.
As to the plaintiff's title, if a deed be lost, and the existence of it be proven, a copy, or if no copy, parol evidence may be given of the contents. If these proofs be satisfactory, they are to be received. The jury have heard some evidence for both these purposes. It is for them to consider of the weight it deserves to have; if satisfactory to them, they will find the plaintiff's title complete.
I am of opinion that 5 Geo. II., ch. 7, meant to make lands liable to the payment of debts, and so far as regards the payment of debts, to have them proceeded against as personal chattels; and that they descend to the heir chargeable with all such just debts as shall be recovered against the executor. Hundreds of tracts of land have been sold since that act upon the supposition that the law was such.
The plaintiff had a verdict and judgment.
NOTE BY REPORTER. — Upon a case circumstanced exactly as this, tried at Halifax three or four terms ago, between Baker and Ashe, WILLIAMS, J., delivered the same opinion, or to the like effect, as MACAY, J., now gave. And the plaintiff recovered upon the same grounds as the (72) plaintiff in this case now recovered. MACAY, J., being then upon the bench, but not giving an express opinion of himself — having now given it, whereby the opinion of a majority of the judges upon this point being obtained, it is supposed it may now be received and cited as law. Accordingly this case, as being of great importance, and affecting perhaps much real property in this country, has been reported here.
See Act of 1714, Rev., ch. 226; 1789, Rev., ch. 311; 1791, Rev., ch. 352; 1806, Rev., ch. 704. And see Spaight v. Wade, 6 N.C. 295, and Temple v. Jones, 7 N.C. 579, which are constructions upon the two first mentioned acts. The design of all these enactments was that after it had been judicially ascertained that the personal representatives had no assets, or not sufficient to satisfy the plaintiff's demand, the heir or devisee should have notice by sci. fa. to come in and contest the fact of lands descended, or might make up a collateral issue with the personal representatives and have the question of assets again inquired into. The heirs or devisees, if they sold the land before action brought or process sued out against them, became personally liable for the value of the lands; but if the lands continued in the hands of the heirs or devisees, or were fraudulently sold, the lands themselves only were liable to the execution. The lands, if bona fide sold before the sci. fa., it seems would not be liable, and in such case the creditor must look to the personal responsibility of the heir or devisee.
See, also, Badger v. Daniel, 79 N.C. 372.
Cited: Tarkington v. Alexander, 19 N.C. 94 Bevers v. Park, 88 N.C. 459; Speer v. James, 94 N.C. 41; Cowles v. Hardin, 91 N.C. 233.