Sawyer v. Jefts

• Decision Date: 27 July 1900
• Citation: 70 N.H. 393,47 A. 416
• Parties: SAWYER v. JEFTS.
• Court: New Hampshire Supreme Court

47 A. 416

70 N.H. 393

SAWYER

v. JEFTS.

Supreme Court of New Hampshire. Hillsboro.

July 27, 1900.

Exceptions from Hillsboro county.

Action by Andrew F. Sawyer against Ira P. Jefts. A nonsuit was ordered, and plaintiff excepts. Exception overruled.

Covenant broken. Trial by the court. The defendant's father conveyed a tract of land to the plaintiff in 1893, by warranty deed in common form, and died in March, 1895. An administrator of his estate was appointed the same month. The plaintiff had been evicted from the premises the preceding February. He presented this claim to the administrator, but made no further effort to enforce it until March, 1899, when he began this action. At the close of the plaintiff's evidence a nonsuit was ordered, subject to exception.

E. S. & H. A. Cutter, for plaintiff.

Joseph B. Parker and Hamblett & Runnells, for defendant.

YOUNG, J. The common law did not charge a person's real estate with the payment of his debts, but permitted him to do so, and when he did it gave such creditors an action to enforce their claims after his death. This action, though nominally against the heir, was a proceeding in rem against real estate the heir had inherited from the covenantor; for, in order to maintain an action, the creditor must show that the heir had such land, and the execution was against that, and not against the heir or his goods. In 1718 a statute which is still in force was passed, charging all the estate of deceased persons with the payment of all their debts, and making it the duty of administrators, whenever the personal estate is insufficient, to sell so much of the real estate of deceased persons as is needed for this purpose. Prov. Laws (Ed. 1725) p. 88; Laws (Ed. 1797) pp. 243, 254; Laws (Ed. 1805) pp. 170, 178; Laws (Ed. 1815) pp. 207, 215; Laws (Ed. 1830) pp. 334, 365; Rev. St. c. 159, § 12; Id. c. 164, § 1; Gen. St. c. 177, § 13; Id. c. 182, § 1; Gen. Laws, c. 196, § 15; Id. c. 201, § 1; Pub. St. c. 189, § 15; Id. c. 194, § 1. This statute, making it the duty of administrators to sell the real estate of deceased persons and apply the proceeds to the payment of all their debts, removed the occasion for giving specialty creditors an action against the heir whenever the covenant was broken in the lifetime of the covenantor; and the provision in regard to administrators applying the proceeds of the land they sell to the payment of all their deceased's debts is inconsistent with the idea that the legislature intended for such creditors to proceed against either the land or the administrator, at their election. If they could, such creditors might appropriate...