Den on Demise of Heirs of Williams v. Askew

• Decision Date: 31 July 1811
• Citation: 6 N.C. 28
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF HEIRS OF WILLIAMS v. ASKEW.

6 N.C. 28

DEN ON DEMISE OF HEIRS OF WILLIAMS

v.ASKEW.

SUPREME COURT OF NORTH CAROLINA

JULY TERM, 1811.

From Hertford.

A judgment against the executor or administrator creates no lien on lands descended or devised ; and lands bona fide aliened by the devisee, before scire facias sued out against him, are not liable for his testator's debts.

LEWIS BROWN being indebted to John Armstead by bond, binding himself and "his heirs," died about 1805, having previously published in writing his last will and testament, and therein devised the lands mentioned in the declaration of ejectment to Anthony Brown. Administration on the estate of Lewis Brown was granted with the will annexed, and suit being brought against the administrator upon the aforesaid bond, the administrator pleaded that "he had fully administered," etc., which plea was found by the jury to be true, and judgment having been obtained on the said bond in August, 1806, a writ of scire facias was issued against Anthony Brown, the devisee, to show cause why the plaintiff should not have judgment of execution against the lands devised to him by Lewis Brown. Judgment was rendered against Anthony Brown upon this scire facias, in August, 1807, upon which a writ of execution was issued, and the lands aforesaid devised to Anthony Brown were seized by the sheriff and sold to satisfy the said execution; at which sale the defendant Askew became the purchaser, and the sheriff executed to him a deed for the land on 25 November, 1808. Defendant set up title under this deed.

On 23 December, 1806, subsequent to the rendering of the judgment against the administrator, but previous to the suing out of the scire facias aforesaid, Anthony Brown, the devisee, conveyed the lands, for a valuable consideration, to Richard Williams, under whom the lessors of the plaintiff claim title.

There was a verdict for the plaintiff, and a rule for anew trial being granted, and on argument discharged by the court, the defendant appealed to this Court.

HALL, J. The only question in this case is, Whether the devisee, having sold the lands in question to a bona fide purchaser for a valuable consideration, after process had been taken out against the administrator, with the will annexed, but before a scire facias had issued against him, the devisee, the lands so sold should be subject to the testator's debts. If any doubts existed on this subject before the act of 1789, ch. 39, that act has removed them. The third section of that act declares...