#### BETSEY NEWSOM & AL. *vs.*LARY NEWSOM & AL.

An execution in the name of “ William Barnes, Guardian” is not supported by a judgment in the name of '■ Charity, Penelope and Sarah Newsom, their Guardian William Barnes,” and is therefore void.

A suit and judgment, in which the same person is both plaintiff and defendant, or one of the plaintiffs and one of the defendants, is an absurdity, and can llave no legal efficacy.

Thus where a father died, seized of a tract of land and leaving eleven children his heirs at law — and three of these children recovered a judgment against the administrator of their father, the plea of fully administered being found in his favor, and they then issued a *scire facias*against themselves and the other heirs to subject the land, and upon this *sci: fa.*a judgment was entered and an execution issued, under which the land was *sold-*— Held that it was right for the court, upon motion, to vacate the judgment and set aside the execution, and that of course no title to the land passed to the purchaser-

But *held*further that, having passed such an order, the court had no right to require the purchaser, who was also the assignee of the judgment to pay to the defendants in the execution the amount for which the land sold.

In a case like this the remedy of the creditor heirs is in Equity.

The cases of *Jeffreys*v *Yarborough, 1*Dev. Eq. 506. *Holding*v *Holding,*Conf. Rep. 425. *Wright*v *Lowe,*2 Murph. 354. *Ryder*v *Jones,*3 Hawks 24. *While*v *Albertson,*3 Dev. 242. *Pearson*v *Nesbitt,*1 Dev. 315, and *Justices*v *Shannonhouse,*2 Dev. 6, cited and approved.

Appeal from the Superior Court of Law of Wayne county, at Fall Term, 1843, his Honor Judge .PearsoN, presiding.

This was a motion to vacate a judgment, rendered upon a *scire facias*to charge real estate, and to set aside an execution issuing thereon, under which a sale had been made. The facts as they appeared before the court, were these:

John Newsom became the guardian of his three children, Charity, Penelope and Sarah, and, after receiving personal effects of his wards, died intestate, seized of a tract of land, which descended to those three children and eight others, whom he left surviving him. One Theophilus T. Sims administered on the estate of John Newsom ; and a petition *382was filed against him by Charity, Penelope and Sarah New-som> succeeding guardian and *prochein ami,*Wil-liarn Barnes, for an account and payment of the moneys reCeived for them by their late father and former guardian. The administrator put in his answer, and therein denied, that he had assets of the intestate. Upon the hearing a reference was made to the clerk, to take the accounts involved in the cause; and he found that the sum of $1945 94 was due to the petitioners for a legacy to them, which their late guardian had received, and that the defendant Sims, had fully administered all the assets left by his intestate, and had no assets to pay any part of the sum - so reported to be due to the plaintiffs. The report was confirmed ; and a decree made, that the plaintiffs recover the said sum and the costs of suit out of the real estate of the defendant, John Newsom, that descended to his heirs at law. Thereupon a *scire facias*was sued out on the decree in the name of Chanty, Penelope and Sarah Newsom, as plaintiffs, against the said Charity, Penelope and Sarah, and their eight brothers and sisters, naming them, (infants;) which recited that the plaintiffs had recovered against the administrator, T. T. Sims, the sum of $1945 94, and the further sum of $15 85 for costs, whereof the said T. T. Sims, administrator ns aforesaid, is convicted as appears of record, and also recites,11 that it was suggested by the said defendant, T. T. Sims, administrator as aforesaid, that he had fully administered, so that execution of. the debt and costs could not be had against the personal estate, that was of the said John Newsom, lately deceased, and that it was also suggested that the said John Newsom died seized of lands sufficient to satisfy the said sums of money, which descended to the said Charity, Penelope and Sarah, and the eight other children (who are named,) and that the said Charity, Penelope and Sarah Newsom, by their next friend, William Barnes, had solicited some fit remedy in this belief;” and thereupon it commands the sheriff to make known to *the said heirs at law*to appear &c. to shew cause &c,, wherefore the said plaintiffs should not have execution of the said debt and *383costs against theaforesaid real estate descended asaforesiad &c.

The *scire facias*was made known and returned j and “judgment was entered according to *scire facias*for $1945 94, with interest from 20th August, 1840, until paid.” Thereupon an execution was issued, returnable to February Term, 1842, which begins by reciting, that, “whereas *William Barnes,*guardian, to the use of Lary Newsom, lately in our court <fcc. recovered against Theophilus T. Sims, administrator of John Newsom, deceased, the sum of &c., and it being suggested that the said administrator had fully administered and had no assets, so that execution could not be had of the personal estate of the said John, dec’d, and whereas a writ of *seire facias*did issue from our said court, commanding the said sheriff to make known to Charity New-som, Penelope Newsom, Sarah Newsom (and the eight others named) heirs at law of the said John Newsom, deceased, that they should appear &e. and shew cause wherefore *William Barnes, Guardian,*should not have execution against the lands of the said deceased, to satisfy the said judgment and costs j which said writ was duly returned, made known : and whereas the said heirs failed to appear and shew cause as aforesaid, and judgment having been given against the said heirs : These are therefore to command you, that of the lands and tenements of the said John New-som, deceased, you cause to be made the aforesaid sums of &c. and have you the said moneys before &c. then and there to render to the said his debt and costs aforesaid. Herein &e.” Under the foregoing process the sheriff sold the land that descended from John New-som to all his children, and it was purchased, at a price which satisfied the debt and interest, by one Lary Newsom, who claimed to be the assignee of the judgment; and the sheriff returned the execution satisfied thereby. At February Term, 1842, a rule was obtained on William Barnes and Lary Newsom to shew cause, why the execution should not be set aside and the judgment vacated ; which at the next term was made absolute, and thereupon Lary Newsom was ordered, upon pain of attachment, to pay immediately *384to the defendants in the execution the said sum for which ^an<^ so'^' From that order Lary Newsom appealed to the Superior Court.

jn the Superior Court, in support of the motion to vacate the judgment and set aside the execution, it was insisted, *First,*that the defendants in the *scire facias,*being infants, should have appeared by guardian, whereas the judgment was rendered by default, dr upon plea by an attorney, they having no guardian. *Secondly;*That the whole proceedings were irregular and void, inasmuch as the plaintiffs, Penelope, Charity and Sarah were also defendants and sued themselves. *Thirdly;*that the *sci.fa.*proceeding was irregular and void, being based upon a decree of the County Court, acting as a Court of Equity, and because it does not set forth that it had been proved that the administrator had fully administered, but merely that he so suggested. It was insisted in support of*the motion to set aside the execution; *First,*That it is irregular and void, being issued before the expiration of one year *Secondly ;*That the execution does not conform to the judgment, as it directs a sale of the land of John Newsom, instead of the lands of John New-som in the hands of his heirs. In opposition to these motions, it was contended, (hat, although the proceedings might be informal and erroneous, still .they were not void and of no effect; and could not be set aside in this summary way, but only by writ of error.

Upon the first question his Honor was of opinion, that a judgment against an infant by default or upon appearance and plea by attorney, although voidable, was not void; for, if void, either party might treat it as a nullity, whereas the infant alone is permitted to complain, and this by writ of error. Upon the second question, the Court was of opinion, that the proceeding by *sci. fa.*being the only remedy for a creditor to subject real estate, it was not irregular for one of the heirs, being a creditor, to issue the proceedings against himself and the other heirs. The debt had been established in the suit against the administrator. This was an application to charge the real estate. If it was suggested *385that the administrator had not fully administered, then. the administrator was brought in as a party on one side, all the heirs being parties on the other and all equally en- • i , ' . . , , , , , , . titiecl to a portion of the real estate and to charge the administrator. Upon the *third*question, his Honor was of opinion that a decree or judgment against the administaator in the County Court, although entered upon petition and the proceedings thereon, as provided by Act of Assembly giving that Court jurisdiction in cases of filial portions, &c., and not by suit on the guardian bond, was still the judgment.of a Court of Law, and the remedy by *sci. fa.*was not irregular and void. His Honor was also of opinion, that as the *scire facias*recited the judgment against the administrator and stated the fact that execution of the debt and costs could not be had out of the personal estate, the omission to state, that upon a reference to the-clerk, the fact of fully administered had been established, although it rendered the proceeding informal, yet it did not make it void. For these reasons his Honor refused the motion to vacate the judgment.

Upon the *first*question in relation to the execution, his HoNor was of opinion, that execution could properly issue, when one of the heirs was of full age, within the twelve months. Upon the other question he was of opinion, that, although the execution was informal in directing a sale of the lands of John Newsom, dec’d. and perhaps the sheriff might have been justified in returning that John Newsom had no lands, yet from the whole execution it was clear, that the lands mentioned were the lands of John Newsom in the hands of his heirs, and that this informality did not render the execution void. The two motions were therefore refús-' ed, and the plaintiffs appealed to the Supreme Court.

*Henry*for the plaintiffs,

in support of the motions, contended, First; That the judgment was void, because the plaintiffs are also defendants in. the *scire facias*and in the judgment rendered thereon. *Pearson*v *dfeshit,*1 Dev. 31-5,, *386*Secondly,*The judgment was void, because the *sci. fa.*^oes not set ^01'^ suc^ a judgment as gave the Court juris-diction over the hand — it does not shew “a finding of fully a<jministere(j)) by the administrator ; and unless such a judgment is shewn, according to the Act of 1784, Rev. Stat. c. 63 sec. 1, the Court has no power to act. It is only a judgment against the administrator and not against the lands. The *sci. fa.*can only issue on a judgment *virtually*against the lands — for, until the act of ¿1784, there was no provision for the creditor, on the decease of the debtor, against the land. *Barrow*v *Arrerdon,*1 Ired. Rep. 223. *Pellijohn*v *Beasley,*1 Dev. *&*Bat. 254. *Thirdly,*the judgment Avas void, because a *sci. fa.*will not lie upon a decree, but only upon a judgment at laAv. *Jeffreys*v *Farborough,*1 Dev. Eq. 506. Fourthly, if the judgment Avas not void, the execution was, because not Avarranted by the judgment. *Fifthly,*the execution Avas irregular, because it issued before the expiration of twelve months, and Avas levied upon the lands of the minors and they Avere sold. If the execution could have issued against the lands of the adult heirs, according to *the*case of the *Bank of .Wewbern*v *Stanly, 2*Dev. 476, yet here the only adult heirs were the plaintiffs in the execution — as to them it was void — and it was only an execution against the present plaintiffs, A\rho Avere all minors. If the execution could have rightfully issued against them, yet the 11th section of the 63d chapter of the Revised Statutes prohibits. a *levy*upon the lands of minors, until after the expiration of twelve months from the judgment.

*John M. Bryan & Mordecai*for the defendants

insisted, that the judgment was not void, because the court had jurisdiction of the subject matter. Judgments are set aside on motion, only Avhen the Court transends its poAver or where a mere office judgment is entered up, contrary to the course of the Court. That it is rendered by default against infant heirs is only ground of *error,*but does not make the judgment null-. *Jennings*v *Stafford,*1 Ired. 404. *While*v *Albertson,*3 Dev. 142. *Oxley*v *Mi&lc,*3 Murph. 251. *3872 Bac.'ab. Let. a. p. 450. *Pettiyolin*v *Beasley,*1 Dev. & Bat. 256. *Whitley*v *Black,*2 Hawks 179. Upon the *sci. fa.*against heirs, devisess &c. they must all be made parties defendant, for where land is chargeable by any lien, the charge ought to be equal, and one alone shall not bear the burthen. *Harbert’s case,*3 Co. 12. 24. Here hy our Act. Rev. Stat. ch. 63, where any person shall die seized of any lands and shall be indebted &c. *all the lands,*of which he died seized, shall be liable &c. The lien is in the nature of a statute staple or statute merchant. In this case there is no other mode of subjecting the lands, but under the Act of Assembly. That the parties, plaintiffs in the *sci. fa.*notified themselves, is no ground of complaint by the present plaintiffs. They sustained no injury thereby, nor were they prevented from shewing cause, under the *sci. fa.,*why the lands descended should not be sold. Indeed the controversy had been settled hi the prior proceeding against the administrator. *¡Sanders*v *Sanders,*2 Dev. Eq. 262. The execution must necessarily conform to the judgment, and be issued against all the defendants, as well infants as adults. The Act of Assembly is only directory to the Sheriff to forbear levying on the estate of the infants, but if he does levy and sell, the purchaser is not responsible for his omission, or for the irregularity in the preliminary proceedings. *Bank of Newbern*v *Stanly,*2 Dev. 476. *Dobson*v *Murphy,*1 Dev. & Bat. 596. Ejectment is the proper remedy for the plaintiffs in this motion. In that action the validity of the judgment and execution would come directly in controversy.

RuffiN, C. J.

The opinion of this Court is, that the execution must be set aside; if for no other reason, because there is no judgment, regular or irregular , voidable, or void, to support it. At the end of this instrument, which purports to be a *scire facias,*the Sheriff is commanded to render the money to no person *; the*name of the plaintiff being left blank. But, if it be filled up with the name of *William Barnes,*who is stated in the recitals of the writ to have recovered the judgment, it will not mend the matter; *388for <jie suit was brought, as it ought to hare boon, in (he of the claimants, Charity, Penelope, and Sarah New-some, and not in that of Barnes. The execution was there-£ore not warrante(jj even in form, by a judgment, and was iu operative and properly set aside. Our opinion is, likewise, that the judgment on the scire *facias*was incongruous and null; and within the principle *of Whitley v Black. 2*Hawks 179, and other cases .of that nature, should be vacated by *the*Court, that rendered it.

We do not found this opinion on the ground that a sc *ire facias*was an improper proceeding for a creditor, who wishes to pursue the real es'ate for the satisfaction of a sum of money due by decree of a Court of Equity or of a Court of law on a petition, which is in the nature of a suit in equity, but upon the ground, that a suit and judgment, in which the same person is plaintiff and defendant, or one of the plaintiffs and defendants is an absurdity and can have no legal efficacy. It is true that we are clearly of opinion, as was held in *Jeffreys v Yarborough,*1 Dev. Eq., 506, that, upon a decree or declaration by a Court of equity, that the estate of the deceased was indebted to the plaintiff in a certain sum and that the executor had no assets, any other person whether donee, legatee, devisee, or heir, must be brought in by supplemental bill; and that'the *scire facias*is given upon judgments at law only, in certain prescribed cases. And we likewise find ■ it held in numerous cases by our predecessors, that petitions for legacies, filial portions, and distributive shares are proceedings according to the course of equity and not law. De-fence is made by answer and plea on oath. A *Court of*equity cannot enjoin a decree upon petition, because the Court, which gave the decree, has the same jurisdiction to re-examine upon a petition to rehear, or to review for error of law or fact or for surprise. *Holding*v *Holding,*Conf. Rep. 525. The assignee of a distributive share may sue for it by petition' in his own name as he can in a court of Equity. *Wright*v *Lowe, 2*Murph 354. So, evidence is taken ly commission in depositions and not. *viva, voce*as in cases at *389law. *Ogden v Jones,*3 Hawks 24. These instances are sufficient to shew the nature of the jurisdiction; tho’ (herbare many others to the same effect. We are no t, however, called on to say, how, in ordinary cases, plaintiffs in petition, to whom money may be found due, and who cannot get it out of the personal estate, should proceed against the rcal’estate. And, although we might be of opinion, that a *scire facias*was not the appropriate proceeding, yet, if this were an ordinary case of one person being the creditor and another the debtor, we should hold, that a judgment on the *scire facias*was not void, as the objection was not to the jurisdiction of the Court, but only to the process, which the party waived by not taking. *White*v *Albertson,*1 Dev. 242. But, supposing in this case the process in due form and all the proceedings to be otherwise regular, and it is in that point of view that we look at it, yet the judgment is inconsistent and senseless in being, at once, for and against the same persons. Upon that ground we think it must be vacated. If authority were needed for so plain a position, it may be easily found. The case of *Pearson*v *Nesbit,*1 Dev. 315, is in point and states the reasons as convincingly as can be. It is true, that was a writ of error, which might be necessary there to enable the other side to take issue on the identity of the persons of the same name on opposite sides of the suit. Here the identity of the three plaintiffs with three of the defendants, the children of the intestate, is set forth in the record, and does not admit of denial. In such a case the reasoning in *Pearson*v *Nesbit,*is completely applicable, as shewing that, where the same person is the creditor and debtor, the debt is extinguished, and therefore upon the face of the judgment, as soon as it was pronounced, the debt therein recovered was gone. Consequently, the Court should purge their records of such an absurdity. So in the *Justices*v Shan*nonhouse,*2 Dev. 6, and several other cases of the like kind, where an obligor was also one of those to whom, as a class of persons a bond was payable, it was, upon *non est factum*held not to be a deed. For the like cause this judgment. *390must be a nullity. But it was urged in the argument, that uPon a judgment, ascertaining the debt in favor of one, who is an heir, among several, of the debtor, a joint *sci. fa.*mugt g0. |3ecause it was said, no other remedy was given for the creditor and every heir ought to be compelled tocontri-bute by the process of execution going against all the land descended. It is true the statute gives no other remedy at law, but by *scire*facias, on the judgment in the suit against the personal representative. But in giving that, the creditor and the heir are supposed to be different persons, as much as that the creditor and administrator are so. The act of 1784 made no provision for the cases, in which the personal representative is a creditor, or in which one of the heirs is a creditor. But because the administrator had no other remedy at law for a simple contract, and could not proceed by *scire facias*a-against the heir but after a judgment against himself, it was not held that the Legislature meant the absurdity, that the administrator should sue himself to ascertain his debt and then proceed on the judgment by *sci. fa.*against the heir. On the contrary, as a matter of course, he could have no legal remedy for a simple contract debt in such a case ; but would 'be compelled to apply to a court of equity for relief, upon the ground that he had a subsisting debt and no other remedy for it. Therefore, on the express ground, that the administrator and executor, could in no mode recover their debts against the heirs, under the act of 1784, the acts of 1799, and 1806, gave the cheap and expeditious remedy at law by petition. But the case of an heir being the creditor remains as it was from the first; and, therefore, like the executor, before the amendment in his favor, the heir, from necessity, cannot proceed at law. His case is now as that of one of two co-parceners was at common law, when one of three held the executor’s bond, in which he bound his heirs ; and that case was like that of one of the two executors, who was a creditor of the testator, who cannot sue his co-executor either alone, or jointly with himself: The remedy in either case is in equity, because the creditor cannot sue at law, but has a right *391to satisfaction out of the fund. And to repel an inference that the act restrained the creditor in such case to the lega). remedy given by the statute, it is expressly provided, Rev.St. c. 43. s. 6, that the creditors’ remedy, or the rule of decision, in equity, shall not be affected by any provision of the act. That is the proper remedy, because there the value of each share descended or devised may be conveniently ascertained and the debt only apportioned ; whereas upon a joint judgment at law, if so absurd a thing can be supposed, the creditor could raise his whole debt from one of the heirs, although he himself ought to contribute. Therefore this case of an heir being- a- creditor can be ño exception to the rule, which arises out of the nature of things, that the same person cannot be' plaintiff and defendant in an action at law.

Our opinion then is, that the County Court was right in vacating the judgment and quashing the *scire*facias; and in setting aside the éxeeutíón.

But when that had been done, that'eoiirt should have stopped. It erred in ordering Lary Newsom to pay to the heirs, including the three, (who were'the plaintiffs) the sum he had hid for the land. By setting' abide the judgment and execution as void,- the sale by the Sheriff necéssarily'falls through, and the land still 'belongs to the heirs. They cannot keep the land and have the money too:

The result is, that the decision in the Superior Court’ must be reversed, with bosts in this Court’; and that the case must be remanded to that court with instructions to’ reverse with costs’in that Court,-so much óf the order of the' County Court, as required Lary Newsom to pay the sum of f>211-3- 33 or any part thereof, and to affirm s'o much of the order of the County Court ds went lo set aside the execution an‘d sale thereunder and vacate the judgment, rendered on the scire *facias,*in the record set forth ; and to issue ¿writ óf *procedendo*to the *County*Court accordingly.

Per Curiam, Ordered Accordingly.-