#### Charles Drayton et al. *v.*Mary Marshall.

At the common law in this State, upon a *mortgage*of lands, the fee was vested, in the mortgagee, and upon a forfeiture of the mortgage, the mortgagee might have maintained an action at law for the recovery of the possession.

The provisions of the act of 1791, by which a mortgage is declared to be merely a security for the debt, and the fee still to remain in the mortgagor, does not apply to a mortgage executed anterior to the act.

The statute of limitations, in such a case, will therefore run against the title of the mortgagee, to lands under the mortgage, where there has been an *adverse possesssion*in the mortgagor or his heirs, after forfeiture, for the time required by the statute — though the *debt*itself may not be barred by the lapse of time.

It is believed that no case can be put, in which a man knows that another . claims, and is in the enjoyment of what belongs to him, and neglects to prosecute his claims at law, *where there is nothing to prevent his doing so,*that he will not be barred by the statute.

The circumstance that the mortgage in this case was -executed before the act of 1791, and that the fee was consequently in the mortgagee, who *374might sue for possession, takes the case entirely out of the reason of the cases of Thayer v. Cramer, 1 M’Cord. Ch. Rep. S95, and Smith & Cut-tino v. Osborne, 1 Hill. Ch. Rep. 212, which go upon the ground that the fee remains in the mortgagor, that the mortgagee can bring no action at law, and that the mortgagor is therefore a trustee for the mortgagee, and cannot claim *adversely*to him.

Upon a bill by the mortgagee, against the *heir*of the mortgagor, not for foreclosure merely, but seeking to obtain payment of the debt, over and above the sale of the mortgaged lands, if they should not be adequate to it; the executor, it seems, should be also made a party.

At common law, land was not liable to execution in the hands of the specialty debtor himself, though it was liable in the hands of the heir, as assets descended; but where judgment was obtained against the ancestor in his lifetime, the land was no longer liable in the hands of the heir. *No*action could be brought against him on the judgment, and he was *regarded*not as *heir,*but merely as *tenant*of the land. (Per Harper, Ch.)

By the statute of Westminster, the remedy by *elegit*was given against the land in the hands of the judgment debtor, and after the statute it was held, that a scire facias lay against the heir to show cause why a *moiety*of the land should not be extended. By the statute of 5 Geo. II, lands are made hable in this State, to all debts, in the same manner as they are liable in England, to *specialty*debts — and the *whole*land may be seized and sold under execution against the judgment debtor. (Per Harper, Ch.)

It would seem to follow in analogy to the English doctrine, that upon the death of the judgment debtor, a scire facias will lie, to show cause why the whole land should not be sold ; according to our decisions, however, a scire facias is not necessary, but the land in the hands of the heir may be at once seized and sold under execution. But if he is in possession not as *heir,*but only as *terre tenant,*if the land be bound in his hands, only as it would be bound by the judgment in the hands of any other *tenant*or *holder,*it seems to follow from the decisions in Smith v. M’Ra, 2 Bay. 339, and Chollette v. Hart, 2 Bay. 156, that the statute of limitations will operate to bar the lien of the judgment, where the *heir*claims in his *own right,*and his possession may be considered *adverse,*(Per Harper, Ch.)

This case came up on an appeal from *the decree*of his honor Chancellor Johnson, delivered at Charleston, May term, 1836.— The previous proceedings in the cause are not given at full length, but are sufficiently set forth in the annexed statement and decree of the chancellor which is subjoined, to render the questions determined by the court of errors, in their opinion, sufficiently clear and intelligible.

*375“In January term, 1825, the following decree was pronounced in this cause, by his honor Chancellor Desaussure:

It is ordered, “ That an issue be made up, in the nature of a feigned issue, in which Thomas Drayton, &c., shall be plaintiffs, and the said Mary Marshall, &c., shall be defendants, in which the issue shall be, whether the possession of the house and lot by the said defendants, prior to the filing of this bill, was or was not adverse against the said Thomas Drayton and the other complainants, and those under whom they claim, when the same commenced, and whether it was adverse at its commencement, and whether it was sufficient to bar the complainant’s claim, and that the issue should be made up accordingly, and tried without delay.”

In obedience to this decree, an issue was accordingly made up between the parties, and placed on the docket for Charleston district.

Pending the said issue, the following further order was made by his honor Chanceller Harper, in May, 1830, in reference to the said issue, “ That if the verdict on the issue then pending, should be in favor of the defendant, the bill of the complainants should be dismissed.”

In May term, 1833, of the court of common pleas, the issue came on for trial, (his honor Judge Martin presiding,) a verdict was found for the defendant, and judgment entered thereupon on 6th August, 1833. An appeal was taken, and in consequence of the decease of Judge Martin, no report having been made, the cause was ordered to be reinstated on the docket for a new trial. In May term, 1835, the issue was again tried before his honor J udge Earle, and a verdict again rendered in favor of the defendant, and a judgment entered thereupon on 25th June, 1835.

In May term, 1836, his honor Chancellor Johnson, decreed, among other things, “ that the issue at law was wholly immaterial and irrelevant, and ordered that the verdict should be set aside and annulled.”

The following is the decree of the presiding chancellor at length:

“ The circumstances from which this cause originated, are so fully and clearly stated in the decrees, pronounced by Chancellor Desaussure in January, 1825, and by Chancellor Harper in May, *3761830, and .in the report of Mr. Justice Earle, of the trial of the issue directed át law, that a' repetition of them here will be unnecessary, except such as may be necessary to the proper understanding of the single point arising out of the issue at law.

In 1784, Charles, Thomas and Glenn Drayton, sold and conveyed to Dr. Isaac Chandler, a house and lot in Charleston, and in 1788, he gave them three several bonds, amounting in the aggregate to the sum of £4,347, for the purchase money, and a mortgage on the house and lot to secure the payment. John Drayton and his sister Maria Parker, wife of' Thomas Parker, conceiving themselves entitled, in common with the said Charles, Thomas and Glenn Drayton, to one undivided fourth part of the said house and lot, filed their bill against the said Charles, Thomas and Glenn, to have their claim ascertained and partition thereof made; and in 1793, it was adjudged that they were so entitled, and in 1794, an order was made for a sale of the premises, for the purpose of partition.

Dr. Chandler was not a party to these proceedings, but probably had notice of their pendency and interested himself in them.— No sale was made under this decree, but in November, 1807, an order was made on a bill filed by James Shoolbred, claiming the interest of Glenn Drayton in the premises, directing that they should be sold, and in pursuance of this order, they were sold and purchased by the complainants Charles and Thomas, for £1,827. In 1799, or thereabouts, in consequence of the unsettled state of the title to the house and lot, Dr. Chandler entered into a parol agreement with Charles, Thomas and Glenn Drayton, to rescind the contract for the purchase by him, and it was agreed that he should remain in possession, until the value of the rents should 'reimburse him, for large payments which he had made on his bonds given for the purchase money. Dr. Chandler remained in possession until his.death in 1802, without having reduced this agreement into writing. The defendants, who are his children, have some one or all of them, remained in possession from the time of his death, up to the present day, and Mary Marshall, one of them, has herself been in the actual possession since the year 1805.

*377This bill was filed in 1816, and first came on to be tried in 1825, before Chancellor Desaussure, praying that the mortgage executed by Dr. Chandler, to Charles, Thomas and Glenn Drayton, be foreclosed, and the equity of redemption barred — when the following questions were made, 1st. Whether Dr. Chandler was concluded by the *judgmentof*the court of 1793, pronounced in the matter of John Drayton and Maria Parker, against Charles, Thomas and Glenn Drayton, on account of his knowledge of the pendency of that proceeding. 2d. Whether the satisfaction of the bonds and mortgages, ought not to be presumed from the lapse of time ; and 3d. Whether the possession of the defendants does not operate as a bar to the complainants, under the statute of limitations ; when he was pleased to decree and order — 1st That Dr. Chandler’s rights were not concluded by the court, in the matter of John Drayton and Mary Parker v. Charles, Thomas and Glenn Dray-ton. 2d. Reserving the question as to the presumption of payment, arising from lapse of time, the commissioner was directed to ascertain and report what payments had been made by Dr. Chandler, on account of his bonds; and 3d. That an issue at law^ should be made up and tried to ascertain whether the possession of the defendants did not operate as a bar to the complainants, under the statute of limitations. The question reserved as to the presumption of payment, arising from lapse of time, came up on the report of the commissioner, on the subject of the payments made by Dr. Chandler, before Chancellor Harper, at May term, 1830, who was pleased to decree, that the circumstances did not authorise the presumption of payment, and ordered, that if the issue directed at law, should be decided in favor of the complainants, the equity of redemption should be foreclosed ; but if for the defendants, that the bill should be dismissed. The issue ordered came on to be tried, before Mr. Justice Earle, in the common pleas at Charleston, at May term, 1835, and from his report it appears, that on the death of Dr. Chandler, in 1802 or thereabouts, his family, consisting of a widow and several children, of a former marriage, continued to remain in the house, all of them for several years. The widow left in 1805, leaving several of the children remaining in the house. The defendant, Mrs. Marshall, joined *378them in 1805, and has remained there ever since-. The others moving off as they married. In July, 1808, the complainants gave thé defendants notice to quit and demanded possession. This being refused, on the 28th November, 1808, and on the 12th of August, 1809, the complainants issued and levied warrants of distress for rent, the distresses were replevied, and on the trial of these cases, verdicts were rendered for the present defendants in one case on the 1st of June, 1812, and the other on the 2d June, 1817. In 1811, the complainants also brought an action of trespass to try the title’against the defendants, in which a nonsuit was ordered 13th February, 1813. From the time the controversy between the parties commenced, down to the present, the complainants aforesaid, appeared determined to force the defendants out of possession, and. the opposition on the part of the defendants, particularly Mrs. Marshall, has been equally as decided and notorious.

Underuthese circumstances, the presiding judge was pleased to instruct the jury, that if they should find that the possession of the defendants was adverse, theif verdict should be for defendants, otherwise for complainants.

The complainants now move to set aside the verdict, and for a decree against the defendants, on the ground that from the facts clearly ascertained, the possession of the defendants was not in law adverse, and could not operate as a bar to the complainants, or in the alternative for a new trial on the ground of misdirection of the court. On the other hand, the defendants move for a confirmation of the verdict.

Divesting the case of its peculiarities, and regarding the judgment of the court, heretofore pronounced as decisive of the questions which they purport to decide, which I am bound to do, and putting the case on the strongest grounds for the defendant, which as my opinion is against them, I propose to do, the case may be thus stated. In 1788, Dr. Chandler mortgaged the house and lot in controversy, to the complainants, to secure the payment of bonds, amounting to £4,374, and died in 1802, without having paid or satisfied the debt. This bill was filed in 1816, praying the foreclosure of the mortgage, the bonds ascertained by the decree *379of 1830, to be then unpaid and subsisting debts against Dr. Chandler. In the mean time, on the death of Dr. Chandler, his widow and children, his heirs and his distributees, or devisees, if they claim under a devise from him, remained in possession of the premises, and have continued there ever since, in defiance of the complainants, manifesting by every possible means during all that period, a determination to hold in their own right, in opposition to claims of the complainants, of which they had notice ; and the question is, whether these circumstances amount to such an adverse possession as will in law, bar the complainants. Defendants having had, according to this statement, about fourteen years of uninterrupted possession.

In the report of the trial of the issue at law, and in the argument of the counsel, the case has in relation to this question, been assimilated to an action to try the title to the house and lot, but a moment’s reflection will demonstrate that the similitude will not hold. The case of the complainants proceeds, on the assumption that the title is in the defendants, as the heirs of Dr. Chandler.— The act of 1791, expressly declares, that as mortgagees, they shall not maintain any possessory action- or suit. The bar of the statute of limitations, as applied to real estate, cannot therefore apply here, because by the terms of that act, it is confined to those cases, where the party claiming, has neglected to make claim by suit or action, wdthin the time limited, after the title has descended or come and the cause of action given or accrued. No right or title of action has yet descended or come, or cause of suit or action given or accrued against the defendants — consequently, the statute of limitations cannot apply. This is not a suit to try the titles, but in effect and reality, a suit to recover a bond debt due by Mr. Chandler, to the complainants, and if the case be stripped of the circumstance that there is a mortgage, which certainly may be done without prejudice to the defendants, it is the plain case of a suit upon a bond, for the satisfaction of which the law confessedly charges both the real and personal estate whereof Dr. Chandler died possessed, and was it ever heard, that the bar of the statute of limitations in relation to real estate could be pleaded to such an action — or that the heir would be permitted to say, that “ the *380assets descended are not liable, because I am in possession, and have been for the term limited in the statute ? ” There is no statutory or other bar against the recovery of debts due by specialty, other than the presumption of payment arising from lapse of time, and the heir might with the same propriety avoid his liability on simple contracts, on account of assets descended, on the ground that he had been in possesion one year, as he could his liability for specialty debts, by a possession of any period short of the presumption of payment, arising from lapse of time, and I hold that the assets are liable in all cases, where the ancestor, if living, would be liable" personally. The liability of the assets of a deceased debtor for his debts, is not founded on any little or narrow ground, but on the broad principle that the jus disponendi is inseparable from the rights of property. The ancestor has the right to contract debts in his life time, and the law charges his estate with the payment after his death, and contracting with reference to the law, his assent that the debt shall be a charge on his estate after his death, is necessarily implied. It is on the same principle that he has the power of disposition by will, to direct in what manner his estates shall be disposed of after his death. He may contract to pay debts twenty or forty years after his death — and what prejudice does this do the heir, that would not arise from his devising the use of the assets to him for twenty or forty years, and then over to another. The effect is precisely the same,where the payment of the debt is postponéd until after his death, by the terms of his contract, and when it fell due in his lifetime, and was not paid. In both cases, the only question is, whether the debt is or is not paid.

This question is not, however, an open one. In Thayer v. Cra-mer, 1 M’Cord. Ch. 395, the mortgagor of real estate, had sold the premises to a stranger for valuable consideration. The mortgage had been recorded, but there was no proof of actual notice to the purchaser, and on a bill filed to foreclose the mortgage, it was held that the purchaser was not protected by the statute; and Mr. Justice Nott, in delivering the opinion of the court, put it on the ground, that recording the mortgage was notice to the purchaser, and coming in the place of the mortgagor, he was trustee for *381the mortgagee, and acquired nothing but the equity of redemption. The same question came up in Nixon v. Bynum, 1 Bail. R. 148, and again in Smith et al. v. Osborn, 1 Hill Ch. 341, where the purchaser from the mortgagor had been in possession for about eight years before bill filed, in both of which the rule in Thayer v. Cramer was followed, and I will not repeat here, what I had occasion to say in Smith v. Osborn.- I have seen nothing since to shake my confidence in that judgment. If then the bar of the statute will not apply to the case of a purchaser for valuable consideration, nor afford him protection against the creditor of the, mortgagor, of course it will not apply to the case of a mere volunteer, claiming by descent or devise. The bond of the ancestor, in terms, binds the heir in respect to assets descended, and such is the legal effect of all his contracts, and if a stranger, the purchaser from the mortgagor, having no privity with the parties contracting, is not protected by the statute, surely the heir is not.

It follows, the issue at law was wholly immaterial and irrelevant. That the possession of the defendants was adverse in point of fact, there never was any doubt, for Mrs. Marshall particularly has contested the rights of the complainants, with a constancy and zeal that would have insured and deserved success in a better cause. It is like the cases of tenant for a term of years, or for life, put by my brother Harper-, in his argument in Watkins v. Willi-son, Carolina Law Journal, 116, who can gain no rights under the statute, during the continuance of the term, and if the defendants had proclaimed their determination to hold in their own right, in opposition to the complainants, from the house top, in every case, mood, tense and person, known to our language, and manifested their determination by any act of opposition and violence of which it is possible to conceive, still in law the possession would not have had that legal adverse character, which is required to give effect and operation to the statute.

The decree of the court of May term, 1830, by Chancellor Harper, has provided for foreclosing the mortgage, in the event of these questions being decided against the defendants, and all that is now required, is that the verdict on the issue at law, should be set aside, and it is hereby ordered and decreed, that the same be set aside and annulled.”

*382The defendant appealed from this decree on the following grounds, viz:

1. That the court having directed an issue to try the question of the defendants possession, and the verdict being for the defendant, the same should have been affirmed.

2. Because by the decree of Chancellor Desaussure, of 1825, in full force and unreversed, it is ordered as follows: ‘‘That an issue be made up in the nature of a feigned issue, in which Thos. Drayton, &c., shall be plaintiffs, and the said Mary Marshall, &c., shall be defendants, in which the issue shall be, whether the possession of the house and lot by the said defendants, prior to the filing of this bill, was or was not adverse against the said Thomas Drayton and the other complainants, and those under whom they claim, when the same commenced, and whether it was adverse at its commencement, and whether it was sufficient to bar the complainant’s claim, and that the issue should be made up accordingly, and tried wilhout delaythat pending the said issue, by the decree of his honor Chancellor Harper, pronounced in May, 1830, now remaining in full force and unreversed, it was ordered, “ that if the verdict on the issue then pending, should be in favor of the defendant, the bill of the complainants should be dismissed.” It is therefore respectfully submitted, that the decree of his honor the presiding chancellor, is a virtual reversal of two decrees of coordinate tribunals, in a mode not contemplated by law.

3. Because the possession of the defendant, being admitted by the chancellor to be adverse, as well as hostile, in fact, it is respectfully submitted, that the views of the presiding judge' below, and not those of the chancellor, are correct as to the law arising on the facts, and the verdict of the jury should have been affirmed.

4. Because it is respectfully submitted, that the prohibition of the act of 17.91, does not extend to a case in which neither the mortgagor,.nor his personal representative, were in possession of the mortgaged premises.

5. Because the lapse of time and other circumstances, authorized the belief, that in November, 1808, the debt had been paid or abandoned, or the responsibility of the defendants released, and that the jury were well warranted in law, in finding that the possession of the defendant was thenceforth adverse.

*383If the verdict of the jury and the decree of the chancellor thereon, be regarded as a determination of the said issue at law, in favor of the complainants, within the contemplation- of the decree of Chancellor Harper, then an appeal is made from the said decree, on the following grounds:

1. That the question of presumption of payment, was proper for the consideration of a jury, and should have been so submitted, in pursuance of the decree of the court of appeals in March, 1824.

2. Because the said decree confirms the report of the commissioner, as to the balance due on the three bonds given by Doctor Chandler, in 1788, whereas from the lapse of time alone, the bond said to have been assigned to Dr. Charles Drayton, must be presumed to have been paid.

3. Because the books of Dr. Chandler, ought to have been admitted in testimony. ■

4. Because, the medical accounts of Dr. Chandler, against Glenn and Charles Drayton, from 13th August, 1788, to 18th April, 1794, ought to have been admitted in testimony.

5. Because after deducting the payments to which Dr. Chandler was legally entitled, and which were allowed, as well as the equitable discounts sufficiently established by defendants, and taking into consideration the great lapse of time, death of parties, and other circumstances, the bill of complainants should have been decreed to be dismissed.

6. Because no decree should have been made without having the legal representative of Dr. Chandler, as a party before the court.

Curia., per Harper, Ch.

There are some material circumstances, which certainly have appeared in the case from the beginning, which yet seem not to have been distinctly brought to the view of the court below, nor to have been relied on .in the cause. These are, first, that the mortgage was executed in 1788, before the passing of the act of 1791, changing the character of mortgages ; and, second, that judgments on the bonds, the satisfaction of which is now claimed, were obtained against Dr. Chandler himself, in his lifetime. The mortgage being executed before the stat*384ute could not *come*within its provisions. Indeed, the act itself expressly declares that it shall not extend *“ to*deprive any person or persons, of any right which he, she, or they, may have at the time of the passing of this act.” It follows, that by the execution of the mortgage, the legal title of the property was vested in the mortgagees, (the complainants,) and upon its being forfeited in 1789, they might have maintained their action for the recovery of possession. The time then required to mature a title, by the statute of limitations, had run out more than five times befoi'e the filing of the bill. It is supposed, however, that the statute of limitations cannot avail the defendants, because their possession was not *adverse.*I shall first consider the case upon the supposition that the defendants are in possession, as the heirs of Dr. Chandler, and stand in all respects in his situation. It is supposed that the possession of the mortgagor, even after forfeiture, cannot be regarded as adverse, so as to bar the mortgagees title, while the debt which it was given to secure still subsists, and if that be kept alive, as by the paj ment of interest, or any other mode of recognition, the mortgage must be preserved also.

Some ambiguity has been, perhaps, occasioned in the English cases, by the circumstance that the time required to raise the presumption of payment of a bond, and to acquire a title to land, under the statute, 21. Jas. I., is the same. The question is there commonly regarded as identical, whether the debt shall be presumed to be paid or the mortgage to be discharged. I have no doubt, but that if there were no more than this, that after forfeiture the mortgagor in possession continued to pay interest, for more than twenty years, or should otherwise acknowledge the debt, this would be a recognition of the mortgagees right in the land; the possession would not be presumed adverse. This is the case of Fletcher v. Pineaux, 1 Ld. Raymond. 746. But undoubtedly the mortgagor might make it adverse; suppose him to give explicit notice to the mortgagee, that though he acknowledged the debt, he claimed to hold the land discharged of the mortgage, can any definition of adverse possession be imagined which would not include this — the party in possession, claiming in his own right, denying the right of him who afterwards seeks to set it up, *385and the latter being under no disability to hinder his proceeding at law. It comes within the very letter and the very spirit of the statute. I have said elsewhere, what has been approved by the* court, “ it is believed that no case can be put, in which a man knows that another claims and is in the enjoyment of what belongs to him, and neglects to pursue his claims at law, where there is nothing to prevent his doing so, that he will not be barred by the statute.” The defendants seem to me to have done an act equivalent to the one I have supposed, when they refused to quit possession upon the notice given in 1808. The obvious inference is, that they set up a claim in their own right. There are other acts equally unequivocal, and, indeed, the chancellor reports that from the death of Dr. Chandler, the defendants have “ remained in possession of the premises and have continued there ever since, ini defiance of complainants, manifesting by every possible means,! during all that period, a determination to hold in their own right, I in opposition to the claims of complainants. The circumstance that the mortgage was executed before the act, and consequently, that the fee was in the mortgagees, who might sue for possession after forfeiture, takes the case entirely out of the reason of the cases of Thayer v. Cramer, 1 M’Cord. Ch. 395, and Smith & Cuttino v. Osborne, 1 Hill. Ch. 212. These cases go upon the ground that the fee remains in the mortgagor; that the mortgagee can bring no action at law; that the mortgagor is therefore a trustee for the mortgagee, and a purchaser from him with notice, also a trustee, whose possession cannot' be regarded as adverse, and in whose favor the statute cannot run. Indeed, I do not perceive how these cases can be reconciled with the decision in Durand v. Isaacs, 4 M’Cord. 54, and in Stoney v. Shultz, 1 Hill. Ch. 498, determining that where the mortgagor is out of possession, the act has no operation at all, but the mortgage .remains in every respect as at common law; that is to say, that by alienating the land and transferring the possession, the legal title becomes vested in the mortgagee, who may forthwith bring his action at law, if the mortgage be forfeited. If the bill could be sustained against the defendants, I should think the executor of Dr. Chandler, a necessary party to it, though it is said in the case reported in the note *386to Knight v. Knight, 3 Pr. Wms. 333, that where the bill is for foreclosure, the executor is not a necessary party. This is because the bill for foreclosure merely, in the strict sense of the word, 1 is to quiet the mortgagees title to the land, with which the executor has nothing to do. According to our practice, the bill is not for foreclosure merely, but to obtain payment of the debt; that the land may be sold, and that the mortgagee may have execution for the residue, if the land should prove insufficient to satisfy the debt. The personal estate is first liable to the debt, and the executor is bound to pay it if he have sufficient assets. It seems to come within the principal case of Knight v. Knight, in which the executor was held a necessary party, where the bill was against the heir on a covenant of his ancestor.

Another view has been taken of the case. This has been supposed to be a suit on a bond against the heir, in respect of real assets descended, and that the assets carinot be exempted from liability until the debt itself is barred by the peesumption arising from the lapse of time. This leaves out of consideration the existence of the mortgage. But this, it seems to me, is what we cannot leave out of view. What were the real assets which descended in the present case ? Certainly not the fee of the land. That was in the complainants, the mortgagees. The heirs took nothing but the equity of redemption. Is it to make the equity of redemption liable, as distinguished from the land itself, that the bill is brought ? But if by the statute, defendants have acquired a title to the fee, they can of course have no right of redemption as against themselves. This must be merged or extinguished in the fee.

There is another ground on which we should probably arrive at the same conclusion. At common law, land was not liable to execution in the hands of the specialty debtor himself, though it was liable in the hands of the heir as assets ■ descended. But when judgment was obtained against the ancestor in his lifetime, the land was no longer liable in the hands of the heir. No action could be brought against him on the judgment, and he was regarded, not as heir, but merely as tenant of the land. By the statute of Westminster, the remedy by *elegit*was given against the land *387in the hands of the judgment debtor, and after the statute, it was held that a scire facias lay against the heir, to show cause why a moiety of the lands should not be extended. The cases are referred to in n. 4 to 2. Saund. *7.*where it is said that the judgment creditor cannot have execution for more than a moiety, “for it is held that the heir is chargable as *tenant of the land,*and not as heir, and that an action of debt does not lie against him on the judgment or recognizance.” And in Stileman v. Ashdown, 2 Atk. 608, the question was, whether a judgment creditor should have the whole land sold ? Lord Hardwicke said the judgment affects the land only as it is bound by the judgment, and equity follows the law. There was no scire facias against the heir before the statute of Westm., and it lies against him only as terre tenant, and by virtue of the statute. By the statute, 5 George II., lands are made liable to all debts in the same manner as they are liable in England, to specialty debts, and the whole land may be seized and sold under execution against the judgment debtor. It would seem to follow from analogy to the English doctrine, that upon the death of the judgment debtor, a scire facias will lie to show cause why the whole land should not be sold. According to our decisions, however, a scire facias is not necessary, but the land in the hands of the heir may be at once seized and sold under execution. But if he is in possession not as heir, but only as terre tenant, if the land be bound in his hands only as it would be bound by the judgment in the hands of any other tenant or holder, it seems to follow from the decisions in Smith v. M’Ra, arid Chollete v. Hart, that the statute of limitations will operate to bar the lien of the judgment. The possession of the heir seems to be adverse, for he claims in his own right, and according to the English doctrine the executor alone is the debtor; and some absurd and mischievous consequences would follow from a contrary determination.— Suppose the executor to make payments on the judgment, or admissions, so as to keep it alive for more than twenty years, is the land to remain indefinitely bound' in the hands of the heir ? What is the privity between the heir and executor, and on what principle is it that the acts and admissions of the latter are evidence, and conclusive evidence against the former ?

*388It is true that it has been determined (unfortunately, I think,) that the land in the hands of the heir may be seized and sold under a judgment against the executor himself, when the heir has had no opportunity of being heard, or making defence. These decisions are too well settled, and too many rights have vested under them to permit their being questioned. But such is not the present case, and I do not feel disposed to follow them a step further, than they necessarily lead.

It is ordered and decreed, that the decree of Chancellor Johnson be reversed and the bill dismissed.

Johnston, Ch., Gantt, Beteek, Evans and Eaule, Justices, concurred.

Chancellor Dunkin, having been of counsel in the case, gave no opinion.