#### MIAMI EXPORTING COMPANY v. HOLLY’S HEIRS.

Lands of deceased debtor — scire facias — judicial sale — heirs—marshalled assets — priority of Jien.

The real estate of the ancestor will not be subjected to a judgment against the ancestor in his lifetime, if it has been sold by the administrator to pay debts.

In such case, the administrator’s sale is a judicial one, and as completely divests the heir of title and the judgment of its lien, as if sold in execution upon the judgment.

If a sale has been made by administrators, but no deed made, the court will noton that account award execution against the land.

The proceeds of such sale are marshalled assets in the hands of the administrator, to be paid to the lien holders according to their priority of lien.

If a sale is averred in a plea, the want of a deed should be averred in a replication, it cannot be noticed on a demurrer.

Courts of law, as well as chancery, have jurisdiction of such matters.

Scire facias, to subject the real estate of Holly, deceased, to satisfy a judgment recovered in his lifetime. The second plea is, that' since ííoily’s death, at the Court of Common Pleas in 1817, the administrator, on petition obtained an order for the sale of the entire real estate to pay debts, and by virtue of the order sold and conveyed to one RufTner, the land sought to be charged, under whom the tenants hold.

To this plea there is a general demurrer.

The cause was submitted to the court on written briefs.

By the Court.

The demurrer admits, that the administrators, under an order of the Court of Probate, sold the estate now sought *to he*subjected to this judgment. The court had power to *make*
      *227such order, and no objection is made to the manner of executing the power. The sale, then, is good, and passes the estate discharged of the lien of the judgment, to the purchaser. If the judgment was a lien, the judgment creditors, under the law had priority in the distribution of the proceeds of the sale. The plaintiff’s remedy is against the administrator if he has distributed without the authority of law, unless by his own laches he has forfeited his right. The land has gone to the purchaser as much discharged of the lien of the judgment, as if it had been sold on execution upon the judgment. The proceeds are in the Court of Probate marshalled assets, and those having priority of right, should there assert their claim: not assert in this court, upon land which has once been sold to satisfy this very' claim. If the sale was legal, that is enough. It was a sale of the title of the intestate. A judicial sale of the very thing the plaintiff now asks this court to order sold over again, and made for the same purpose — to satisfy his debt. Can it be supposed that land so sold, is within reach of the judgment for new sale? If a legal sale has been made, there is nothing left for this judgment creditor to subject to his judgment.

But it is said there is no averment of a deed, in pursuance of the sale, and therefore that the land is still subject to the judgment. If the *sale*be good, this court will not award execution to effect another, merely because a deed has not been made. But if new matter exist, bearing upon the question, it is the office of the replication to set it forth, it cannot be reached on demurrer. These questions are not, as contended, exclusively with a court of chancery. This Court, as a court of law, will never award an execution upon a scire facias, when it appears that if the writ is issued, it will be wholly unavailable to the party obtaining it. An execution should be the end of litigation; but such an one would open the door to new controversies.

The plaintiff asked and obtained leave to withdraw his demurrer’, and reply, on payment of costs.