#### *Mary*Spaight, Executrix of the last will of Richard D. Spaight, deceased, *v*. The heirs of Thomas Wade.

F Cp

Heirs. The act of 1784, di. 11, sec. 2, directs, what judgment shall be entered against heirs who have lands by descent, although they omit or refuse to point out the land descended ; it also authorises a *sci. fa.*to the heirs, and upon judgment gives execution *“*against the real estate of the deceased debtor in the hands of such heirs, &c.

'The act of 1789, ch. 39, sec. 3, enacts, that when heirs or devisees are liable by reason of land descended or devised, and sell the land before action brought or process sued out against them, they shall answer the debt to the value of the land sold, tinder these acts, if the lands have been *bona fide*sold before the *sci. fa.*issues, to satisfy a debt of the ancestor under a prior lien, they of course are not liable. If sold to satisfy the heir’s own debt, under the spirit of the act of 1789, the heir is personally liable as if be liimself had sold them, but the land is not.

If the lands have been fraudulently sold before *sci. fa,*and are nqtin point of fact in the hands of the heir qr devisee, such lands are still liable to the demands of creditors.

When execution issues. Plaintiff proceeds at his peril; he can sell all lands descended or devised, unless they have legally passed into other hands.

At March term, 1792, of Newbern Superior Court, the Plaintiff’s testator recovered against Thomas Wade and Holden Wade, executors of Thomas Wade the cl? tier, £2000 for debt, and £8 1 *Os. 6d.*for *costs; but the*plea of “ fully administered,” was found for the Defend? ants. The Plaintiff’s testator then sued out a *scire Jadas*against William Wade, Judith Wade, Polly Wade, Sally Wade, Thomas Yiniug and Polly his wife, Joshua Prout and Sarah his wife, heirs, devisees and *terre tenants,*suggesting that Thomas Wade, the elder, died seised of a large real estate, sufficient to satisfy the said debt and costs, which was devised by him, to Thomas Wade, the younger, Holden Wade, Polly, the wife of Thomas Yiniug, and Sarah, the wife of Joshua Prout j and that Thomas Wade, the younger, was dead, and the *296estate devised to bina bad descended upon bis heirs at law, the said William and Judith ; and that Holden Wade was also dead, and that the estate devised to him had descended upon his heirs at law, the said Polly and Sally ; and prajing judgment of execution for the said debt and costs, against the real estate to them devised and descended as aforesaid.

Upon the due return of this process, William Wade, Judith Wade, Sally Wade and Polly Wade, appeared by their guardian, and pleaded several pleas, but afterwards withdrew them, and judgment was entered against them, as well as Thomas Yining. and wife, by'default; *but*upon condition that said William, Judith, Polly and Sally, should not be liable for any estate which had come or should come to them, other than such as should be derived by devise or descent from Thomas Wade the elder, or Thomas the younger, or Holden. <

Joshua Prout appeared for himself and wife, as devi-sees of Thomas Wade the elder, and pleaded, *“nothing hi) devise on the day of the sci. fa.purchased.”*The Plaintiff’s testator replied, *“*that lands were devised to Sarah by Thomas Wade the elder;” upon which issue was joined by demurrer.

The said Joshua Prout also pleaded as *ierre*tenant, that the lands of which he was in possession, not mentioned in the devise to Sarah his wife, were never bound by any judgment against Thomas Wade, the devisor; upon which issue was joined by demurrer.

The death of the Plaintiff ’s testator had been suggested, and the Plaintiff duly admitted to revive and prosecute. And upon this state of the pleadings and facts, the cas; was submitted to this Court.

Haii, Judge,

delivered the opinion of the Court:

The proper judgment to be entered against heirs, under the -ct of 1784, eh. 11, sec. 2, is against the lands descended in the hands of the heirs, although they re*297fuse or omit to point out the lands that have descended. The act directs a sci. *fa.*to issue against the heirs, to shew cause why execution should not issue against the real estate of the deceased debtor, and then declares, that “if judgment shall pass against, the heirs or devi-sees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs, &c.” The act of 1789, ch. 39, sec. 3, declares, that *“*where an heir or devisee shall be liable to pay the debt of an ancestor or testator, and shall sell, alien, or make over the land which makes them liable to such debt, before action brought or process sued out against them, such heir or devisee shall be answerable or such debt to the value of suchland so sold, &c.” Under this act, where it appears that the lands have been *bona fide*sold by the heir or devisee, before *sd.fia.*sued out, the debt for which the land would have been otherwise liable, becomes their own debt, and judgment must be entered against them, as if sued at common law, and they had omitted to point out the lands descended. Un.dci‘ these two acts, the lands descended or devised, are liable to the demands of creditors, except when *bona fide*sold, in which case, the hdr or devisee is liable in *propria persona,*for the amount of such sales. No mischief can arise from such a construction : all lands will be liable under such judgment, that ought of right to go in discharge of an honest debt, due by the ancestor or testator. If they have been *bonafide*sold before the *sci. fa.*issued, they are not liable $ if fraudulently sold, and in point ol fact, not in the hands of the heir or devisee, they are stil; liable to the demands of Creditors. If they have been sold to satisfy another debt of the ancestor under a prior lien, they of course are not liable $ nor would they be if *bonafide*sold to satisfy the debt of the heir or devisee ; in which case the heir or devisee, under the spirit of the act of 1789, is as if he himself liad aliened them. Such judgments will not affect the rights of third persons not par-*298tics to them. When executions issue on them, Plaintiffs must, at their peril, sell such lands a.° are liable to their demands *;*and all lands which have descended, or have, been devised, are so liable, unless they have legally passed into other hands. The plea states, that the Defendant had nothing’ by descent at the time the *sci. fa.*issued. If he ever had any lands by descent or devise, it has not, been shewn either by him or the Plaintiff what has become of them, so as to make it necessary to render judgment accordingly j to give judgment against the heirs, for instance, in case of alienation by him. The Plaintiff replies, that lands had been devised, which is admitted by the plea ; if so, he is entitled to judgment and execution against them.