Long v. Oxford

• Decision Date: 21 April 1891
• Citation: 13 S.E. 112,108 N.C. 280
• Parties: Long et al. v. Oxford et al.
• Court: North Carolina Supreme Court

13 S.E. 112

108 N.C. 280

Long et al. v. Oxford et al.

Supreme Court of North Carolina

April 21, 1891

Syllabus by the Court.

1. In a proceeding to sell land to make assets, a judgment previously obtained against the executor is conclusive against the heirs and devisees unless fraud and collusion is alleged and shown and the heir or devisee cannot plead the statute of limitation or other defense which might have been set up in the original action.

2. In such proceedings the realty is liable for costs as well as the balance of the judgment, unless the court which rendered the judgment taxed the costs against the executor or administrator personally or against the plaintiff.

Appeal from superior court, Alexander county; Merrimon, Judge.

This was a special proceeding in the nature of a creditors' bill for the settlement of an estate, and to subject devised lands to the payment of debts. On the hearing before the clerk the plaintiffs demurred to the answers filed, on the ground that they did not allege facts sufficient to constitute a valid defense. The clerk, sustaining the demurrer, gave judgment against the defendants, which judgment was confirmed by the judge in term, and the defendants appealed to the supreme court.

In a proceeding to sell land to pay decedent's debts the realty is liable for the costs of an action against the executor as well as for the debt, unless the judgment taxed the costs against the executor personally, or against the plaintiff.

R. Z Linney and R. B. Burke, for appellants.

A. C McIntosh, for appellees.

Clark J.

The plaintiffs seek to subject the lands of Samuel H. Reid to the payment of a judgment heretofore obtained against the executor. The defendants, who are the executor himself and his wife, (who is the sole devisee of Reid,) attempt in their answers to set up the statute of limitations and other matters of defense which might have been pleaded in the original action. The plaintiffs demurred on the ground that the answers did not set up any defense to the action which could avail the defendants or either of them. The court properly sustained the demurrer. "The heir (or devisee) is bound by the judgment against the administrator, (or executor,) unless he can show that it was obtained by collusion and fraud; and he is barred by it from setting up any statutory limitation or other matter which might have been pleaded by the administrator (or executor) as a...