Muldoon v. Moore

• Decision Date: 08 June 1893
• Parties: MULDOON v. MOORE.
• Court: New Jersey Supreme Court

26 A. 892

55 N.J.L. 410

MULDOON

v. MOORE.

Supreme Court of New Jersey.

June 8, 1893.

(Syllabus by the Court.)

Case certified from circuit court, Union county, for advisory opinion.

Action by Mary Muldoon against John C. Moore. Plaintiff had judgment, and as to priority in the distribution of proceeds from the sale of property on plaintiff's execution, and those of defendant's other judgment creditors, the case was certified to the supreme court on agreed facts.

The other facts fully appear in the following statement by MAGIE, J.:

The state of the case shows that in February, 1890, William Moore died seised of certain lands in Union county, leaving John C. Moore his sole heir at law; that on May 17, 1892, Mary Muldoon recovered a judgment in the Union circuit against John C. Moore, as heir, of William Moore, upon a debt of the latter, and that execution on the judgment was levied on the lands above mentioned; that creditors of John C. Moore had recovered judgments against him, whereon executions had been issued, and levies made upon the same lands, (the earliest of those judgments was entered March 5, 1892, and the latest, May 12, 1892;) and that the lands were sold under all the executions, but did not produce enough to satisfy them. A rule to show cause why the sheriff should not be directed to pay to Mary Muldoon the amount of her judgment in full, and prior to any payment to the judgment creditors of John C. Moore, was allowed. The latter appeared to the rule, and the facts were agreed upon by the respective parties, whereupon the circuit court certified to this court the question whether, upon the facts, the judgment of Mary Muldoon is entitled to priority in payment over the other judgments.

Argued February term, 1893, before the CHIEF JUSTICE and DIXON, REED, and MAGIE, JJ.

Thomas F. McCormick, for plaintiff.

John H. Jackson, W. A. Coddington, and W. R. Coddington, for the judgment creditors of defendant.

MAGIE, J. (after stating the facts.) The question presented requires for its solution a determination as to when and how lands of a deceased debtor may be made to answer for his debts by means of an action against his heir at law to whom the lands have descended. At common law a creditor, by specialty which bound the obligor and his heirs, had a right of action thereon against the heir at law of his deceased debtor. If in such an action the heir admitted assets, i. e. lands held by descent from the debtor, the only judgment permitted was a special one for the recovery of the debt, to be levied out of such lands as the heir had not bona fide aliened before action brought. Upon lands aliened before action brought the creditor gained no right, but his judgment related back to the commencement of the action, and could be executed upon any such lands, though aliened thereafter. If the heir permitted judgment in such an action to pass against him by confession, without showing the assets descended, or by non sum informatus or nil dicit, or falsely pleaded riens per descent. such judgment was a general one, as if upon the debt of the heir. Bac. Abr. tit. "Heir," F; Com. Dig. tit. "Assets," A; Jefferson v. Morton, 2 Saund. 7, note 4; Harbert's Case, 3 Coke, 11; Vin. Abr. tit. "Heir," C; Com. Dig. tit. "Pleader," 2 E 5. Such a general judgment was enforceable by the ordinary processes of execution, including an elegit, under the act of 13 Edw. I. c. 18, whereby the plaintiff had delivered to him a moiety of the lands of the defendant, to be held until he obtained satisfaction of his judgment. But the special judgment was enforced only by an extent, whereby the plaintiff had delivered to him the whole of the lands of his deceased debtor, which had descended to his heir, and which had not been bona fide aliened by the latter before action brought. 2 Rolle, Abr. 71; Bac. Abr. tit. "Heir," H 1; Jefferson v. Morton, 2 Saund. 7, note 4; Tidd's Pr. 853, Append, cxli. § 86. By the provisions of the statute of 3 & 4 Wm. & M. c. 14, a liability to action, precisely similar to that of the heir at common law, was imposed upon the devisee of lands of a deceased debtor. The act further provided that if it appeared, in any action against an heir or devisee, under the pleadings prescribed, that lands descended from or devised by the deceased debtor had been bona fide aliened before action brought, then such heir or devisee was liable, and a judgment should pass against him for the value of the lands so aliened, as if upon his own proper debt. A mode was provided by which the value of such lands was ascertained. The "Act for the relief of creditors against heirs and devisees," passed March 7, 1797, (Pat. Laws, 243,) adopted and re-enacted, with modifications, the provisions of the common law and of the statute 3 Wm. & M. c. 14, on this subject. It extended the remedy to every creditor, whether by simple contract or specialty, and whether heirs are mentioned therein or not. It expressly gave a right of action to such creditors against the heir and devisee of a deceased debtor, and it provided that such an heir or devisee should be liable and chargeable for a false plea in the manner any heir would have been for a false plea pleaded by him in an action of debt upon specialty, or for not, confessing the lands, etc., to him descended. The act further provided that if any heir was liable for a debt of his ancestor, in regard of any lands descended to him, and should alien such lands before action brought, he should be answerable for the debt, to the value of the lands aliened, and execution on a judgment therefor should go for such value, as if for the proper debt of the defendant, but lands bona fide aliened before action brought should not be liable to such execution. Provision was also made for determining in such actions the value of lands so aliened, and it was expressly declared that a judgment against an heir by confession of the action, without confessing assets, or upon demurrer or nihil dicit, should be for the debt and damages, without any writ to inquire of the lands, etc., so descended. The provisions thus made respecting actions against heirs were also extended to actions against devisees. From this review it appears that after the passage of the act of 1797 a creditor of a deceased debtor might recover, in an action against the heir or devisee, either, (1) if defendant pleaded properly, a special judgment, requiring the debt to be made only out of lauds descended or devised to defendant, which had not been by him bona fide aliened before the commencement of the action; or (2) if defendant pleaded falsely or improperly, or failed to plead, a general judgment for the debt, as if it were a debt of defendant; or (3) if it was made to appear in the manner prescribed that such lands had been bona fide aliened before action brought, a like general judgment, but only for the value of those lands. Lands so aliened before action brought were wholly exempt from the judgment and execution of the creditor of the ancestor or testator, but lands aliened after action brought were chargeable therewith. This act remains in force, and unmodified. Revision, p. 476. The judgments permitted by this act were enforced by the processes of execution in use at the time of its passage. The enforcement of judgments by elegit and extent had long been abandoned. By the "Act subjecting real estate in the province of New Jersey to the payments of debts, and directing the sheriff, in his proceedings thereon," passed December 2, 1743, (Allison, Laws, 129,) lands bad been made liable for, and chargeable with, debts, and made chattels for the satisfaction of debts, in like manner as personal estates were. Provision was thereby made that lands might be sold by the sheriff, by fieri facias or similar writ, for the satisfaction of the judgment debt, in case of a deficiency of chattels to make the same. The special judgment entered in the action of a creditor against an heir or devisee for the recovery of the debt from lands descended or...