Murchison v. Williams
| Decision Date | 30 June 1874 |
| Citation | 71 N.C. 135 |
| Parties | K. MURCHISON, Guardian, v. JAMES H. and JUNIUS S. WILLIAMS, Executors, and others. |
| Court | North Carolina Supreme Court |
A docketed judgment is a lien upon the lands of the debtor, although it does not divest the estate out of the debtor, nor does it make the land primarily liable for the debt, though the lien exists.
And where the debtor dies, the land descends to the heirs subject to the lien; which lein, however, is subject to the right of the heirs to have the debt paid by the personal property, if there is enough for that purpose; if there is not enough to pay the debt, then the land may be sold for assets by the administrator.
( Jenkins, Adm'r. v. Carter, 70 N. C. Rep. 500, cited and approved.)
CIVIL ACTION, application for relief, in nature of a sci. fa., heard by his Honor, Judge Buxton, at Spring Term, 1874, of HARNETT Superior Court.
The facts as stated by the presiding Judge and transmitted to this Court are:
“The plaintiff had recovered a judgment in Harnett Superior Court against John C. Williams, the testator of the defendants, the executors, in his lifetime, on the 9th August, 1869, which was duly docketed in the office of said Court on the same day. Execution issued 28th February, 1870, returnable to Fall Term, 1870, and was returned, levied on several tracts of land belonging to the defendant in the execution. Date of levy, 10th March, 1870. There was no sale.
John C. Williams died in January, 1873, after making a partial payment upon the judgment, and leaving a last will and testament, which was duly proved, and the defendants, James H. and Junius S. qualified as executors. They, together with the other defendants, are heirs-at-law.
There is still a large balance due on the judgment, to enforce the collection of which these proceedings are instituted; the plaintiff seeking to enforce the lien on the lands, created by docketing the judgment and execution levied in the lifetime of the testator by means of an execution fi. fa. or ven. ex., now to be issued by leave of the Court, after notice to the defendants.
This application the defendants resist on the ground that there are other debts besides that of the plaintiff, to pay which a sale of the land will be necessary, and that the executors have already filed a petition for that purpose, to make lands assets, in the Superior Court, before the Clerk, which proceedings are now pending, and which they insist is the proper course to be pursued under existing laws. The question of lien acquired by the plaintiff is submitted to the decision of the Court.
His Honor was of opinion, after argument, and so decided, that the judgment of the plaintiff docketed in the lifetime of the testator, John C. Williams, and still in force as to the balance due thereon, created a lien upon the lands levied on, which was still subsisting and valid, being a debt against his estate, entilled to the priority secured by law to debts of the fifth class mentioned in Battle's Revisal, chap. 45, sec. 39, p. 403.
His Honor was further of opinion, and so decided, that in view of the provisions of the law, contained in Bat. Rev., chap. 17, sec. 319, (corresponding section of the C. C. P.,) that this lien upon the lands of John C. Williams, affecting the heirs, should be administered and provided for by the executors in the mode which they were adopting, viz: by application to the Superior Court before the Clerk, for the purpose of making the lands assets. See Bat. Rev., chap. 45, sec. 61; and that it would be the duty of the executors to apply the proceeds of the sale of the lands when realized to the payment of the debts of the testator, having due regard to existing liens of the plaintiff and other ante mortem judgment creditors, of which there were several besides the plaintiff.
His Honor was further of opinion, and so decided, that the present proceedings, so far as they affected the lands in the hands of the heirs, were premature, the three years after granting letters testamentary, referred to in Bat....
To continue reading
Request your trial
-
Rigsbee v. Brogden
...Oil & Fertilizer Co. v. Bourne, 205 N.C. 337, 171 S.E. 368; First Security Trust Co. v. Lentz, 196 N.C. 398, 145 S.E. 776; Murchison v. Williams, 71 N.C. 135. aside matters of procedure, we go to a consideration of the questions raised by the appeal: 1. Taxes assessed during the lifetime of......
-
Brown v. Harding
...562; Baruch v. Long, 117 N. C. 509, 23 S. E. 447; Bryan v. Dunn, 120 N. C. 36, 27 S. E. 37; Dail v. Freeman, 92 N. C. 357; Murchison v. Williams, 71 N. C. 135. It would seem therefore necessarily to follow that it was intended, as the legal effect of the instrument, that the land should be ......
-
First Sec. Trust Co. v. Lentz
...court of Catawba county, seems to stand on a parity with them, are entitled to equality of contribution as among themselves. Murchison v. Williams, supra. But the executor is required to adjust the question of contribution as among the devisees in the fourth class and the widow who stands o......
-
Farrow v. Am. Eagle Fire Ins. Co. Of N.Y.
...202, 13 S. E. 790, 26 Am. St. Rep. 562; Baruch v. Long, 117 N. C. 509, 23 S. E. 447; Bryan v. Dunn, 120 N. C. 36, 27 S. E. 37; Murchison v. Williams, 71 N. C. 135. "A judgment creditor has no jus in re nor jus ad rem in the defendant's land, but a mere right to make his general lien effectu......