#### *Mary Bird et al.*vs. *Littleton Houze.*

1. Where the widow and only child of an intestate had been in the exclusive possession of his lands, and had exercised acts of ownership, as his heirs at law, their inheritance is not liable to levy and sale under an execution against his personal representative. And the principle applies though no regular partition may have been made.

2. Where it appeared that the personal estate of the intestate would have been sufficient for the payment of its debts, and that a creditor had obtained a judgment by default against the administrator on a note barred by the Statute of Limitations nearly two years before the suit was instituted against him, on which judgment no further proceedings were had for nearly ten years, nor until the heir had been about twelve years in undisturbed possession of the estate, it was held, after such laches, too late to resort to the heir.

3. It was the duty of the administrator to have interposed the plea of the statute.

4. Payment by him of a demand thus barred, would be a *devastavit.*It could constitute no claim against the heir, either on the part of the administrator, or of the holder of the note.

*.5.*Although, by the statute of George 2d, lands in the possession of the heir are liable for the payment of the simple contract debts of the ancestor, ye.t in ihat case the cause of action must be established against the heir, and he is not bound by a judgment against the executor or administrator to which he was neither party nor privy. *Vernon vs.*Valk, 2 Hill’s Oh. Kcp. 261.

*251*Before*Dunkin, Ch. *at Lancaster, July Term,,*1842, *who made the following-decree :*

Dunkin, Ch. The defendant and Thomas Bird, deceased, were joint owners of fifteen acres of land, comprising nine small Islands in or adjoining the Catawba river, and known as the Hill Island Fishery. Thos. Bird died in 1828, intestate, leaving the complainants, his widow and daughter, his heirs at law. D. M. Tillman administered on the estate of Thomas Bird ; he leased out his intestate’s moiety of the Hill Island Fishery for two years and received the rent. In 1830, the complainants took possession, and have held the same, sometimes occupying it during the proper season, and at other times renting it out, from that time, until the winter or spring of 1842. In January, 1842, the complainant, Mrs. Bird, applied to the Ordinary, to have partition made of the Hill Island Fishery. On the 25th January the parties met at the Ordinary’s office, at his suggestion ; the defendant then claimed the whole, on the alleged ground that, by the terms of the contract between Bird and himself, Bird was to furnish a landing and timber for the traps, <fec. That the complainants could not do this, and therefore he, the defendant, claimed the whole. It appears that on the 1st January, 1826, Bird gave the defendant a note for twenty dollars, payable one day after date. On the 31st December, 1830, Tillman gave the defendant a receipt for the note, promising to account for the same, “provided the Ordinary should receive the same, and there should be funds sufficient to pay the debts of Bird’s estate.” The note is endorsed, *“*This note was filed 31st December, 1830.”

On the 18th October, 1832, the Ordinary declined to receive the note, as it was out of date when the administrator took it up. On the 26th October, 1832, the defendant issued a summary process against the administrator on this note, and wished him to confess a judgment, which he declined. But at that time he endorsed on the receipt the following words, viz: “ The date of this receipt ought to be 1829. It was a mistake in the date; I have examined and found it so. D. M. T.” On Tillman’s examination before the court, he said this memorandum was made by *252him; that when the defendant, (Houze) and his attorney came to him, he did not recollect about it, he was much embarrassed, and did not care much what he did.” Judgment was entered against him on the process by default, and fi. fa. lodged 17th December, 1832.

At fall term, 1841, this judgment was revived by *scire facias*against the administrator; execution was lodged, and on the 9th March, 1842, the deputy sheriff, by direction of the plaintiff’s attorney, endorsed on the execution, that he had levied on all the interest of Thomas Bird, (deceased,) in the Hill Island Fishery, (fee. (Taking a description from the deed.) On the sale day in April, the land was knocked off to the defendant for five dollars, and on the 25th April, 1842, he received the sheriff’s deed. This bill was then filed for the partition, which is resisted by the defendant, on the ground that the sale under the execution against the administrator divested the complainants’s title, and gave him an absolute estate in the entire premises.

The decisions in *Durphey*vs *Nelson*<fe *Martin*vs. Latta, 4 McC. R. 128, have never been satisfactory to the bench or the bar. While the court has in several instances expressed the opinion, that it was necessary for the repose of the country not to disturb what might now be regarded as a settled law of property, they have lost no opportunity of declaring that they would not go one step farther than those decisions have already gone. See *Drayton*vs. *Marshall,*Rice Eq. 388. In *Jones*vs. Whiteman, 2 Hill’s Rep. 579, the court had occasion to review and explain these decisions. The Statute Geo. 2d, makes lands liable as personal assets in the hands of the personal representative of the debtor. “ The cases of *Durphey & Nelson*& *Martin*vs. Latta, do not go further than to declare the lands of a deceased person to be assets in the hands of his personal representative, liable to be taken on execution on fi. fa. issued under a judgment recovered against the executor or administrator.”

In the former of these cases the ancestor left but a single heir; in the latter case the lands descended to several. But, say the court, in *Wightman*vs. Jones, “ there does not seem to have been any act done by the defendant (the *253heir) in the first case, asserting his right of possession, as heir at law, before the suit was brought against the administrators, and a recovery had. In the other case, there had been no partition.” In a subsequent part of the same case, the court declared what is the true notion of the constructive lien of a creditor on the lands of the deceased. So long as they remain in the hands of the heir, they are liable to be seized in execution under a judgment recovered against the heir, for the debt of the ancestor, and if the lands “ are not in the exclusive, actual possession of the heir entitled to them, they would also be liable to execution on a judgment recovered against the executor or administrator.” In the case then under consideration of the court, no partition had been made among the several heirs; but this seems to confer no new right, but is only conclusive evidence of “ asserting their right of possession as heirs at law.”

Partition can give no right to several heirs which a single heir would not have without partition — an only child, living on his father’s plantation for ten years, or renting it out, and receiving the rents for ten or more years, without any claim on the part of the personal representative, or of an executor, would, in the language of *Jones*vs. VHghiman, have been deemed to assert his right of possession as heir; “ the land would be in the actual exclusive possession óf the heir entitled to it.” And although the creditors might have a lien on the land, which they might enforce under a judgment against the heir, the land would not be liable to execution under a judgment against the personal representative. If the same acts of open, exclusive, actual, possession have been exercised, for a series of years, by the widow and only child of the intestate, the principle is equally applicable, although no regular partition may have been made. The rule in *Durphey*vs. Nelson, is held by the court, in *Jones*vs. Wightman, to apply only to cases where the heir has done no act, as heir, asserting his right of possession, before suit brought against the administrator, and a recovery had. Recognizing the authority of these cases, the court is of opinion that the exclusive possession of the complainants, and the acts of ownership exercised by them as heirs of the intestate, protected their inheritance from *254levy and sale under an execution against his personal representative.

But in another view the complainants seem entitled to the aid of the court. In *Goodhue*vs. *Barnwell,*Rice Eq. 240, it is said, “ certainly the personal estate is the primary fund for the payment of debts, and if a creditor stands by and suffers the personal estate to be squandered, he will not be afterwards permitted to look to the heir for payment of his demands.”

The administrator, Tillman, testified “ that Bird’s personal estate, if rightly managed, would have more than paid the debts, but that his own affairs became deranged so that he attended very little to Bird’s estate, after the •first two years.” No suit was instituted against the administrator until the 26th October1, 1832. The judgment fey default was suffered to remain, and no further proceedings had for nearly ten years, nor until the *heir*had been about twelve years in undisturbed possession of his estate. After such laches it is too late, in the judgment of the court, to resort to the heir. If he could not be rendered responsible by a direct proceeding against himself, the right of the creditor can hardly fee improved fey a mere nominal proceeding against a bankrupt administrator. It is ordered and decreed that the sale by the sheriff be set aside, and that a writ of partition do issue according to the prayer of the bill, and that defendant account for the rents since 1st January — costs on the bill to be paid by the complainants; those on the writ of partition, and on the execution thereof, to be paid in equal moieties by the complainants and defendant — all other costs to be paid by the defendant.

*Notes of evidence for defendant.*

Execution December 17, 1832; sci. fa. March 20, 1841; execution November 9, 1841; (Record of *Robert Dobbin*vs. *Thomas Bird,)*judgment, November 11, 1828, $91 65; assigned to Houze, January 7, 1832: sci. fa. issued October 29, 1832: acknowledgement by administrator, that he had no cause to show ; sheriff’s deed, 25th April, 1842.

*Grounds of Appeal*— to *revise or modify decree.*

Because, it is submitted, the sale by the sheriff, under the *255execution against the administrator, transferred a good title to the land of intestate to the defendant, and should have been sustained, and complainants’s bill dismissed.

Because, even conceding that a valid sale could not be made by virtue of the execution against the administrator, yet as there was a good subsisting judgment against the intestate (in the case of *Dobbin*vs. *Bird,)*it is respectfully submitted the sale should be referred to the judgment, and sustained.

Because the defendant’s having set up a 1 was a bar to the claim of complainants for ' court.

Because, at all events, decree should be/moíiffieg{]^jf|^¡|--quiring complainants to account for the({ indebtedness ol intestate to defendant, and especially for the-ítfiíiBiiiitéUÍ'tíie/f Dobbin case.

Because, if it is considered by the court i should be sustained on account of the adequacy of the personal estate for the payment of the debts, the evidence on this point was wholly insufficient, and a reference thereon should be ordered.

*Wright and McMullan,*for the appellant,

cited the following authorities : *Ashe*vs. *Executors Ashe,*1 Bay, 304; 1 McCord Ch. 148 : 4 McCord Rep. 128; 2 Hill Rep. 579; Rice Eq. 308 ; 1 Equ. Rep. 427 ; 1 McCord Ch. 191; 7 Johnson Ch. 140 ; *Gist*vs. *McJunkin,*McMullan Rep.; 1 Hill Rep. 49.

*Clinton,*contra,

cited 2 Bay, 339 ; 1 Hill Rep. 399; Rice Eq. 240 ; 1 Bailey, 168 ; 2 McCord Ch. 302.

*Curia, per*Dunkin, Ch.

This court concur in the judgment of the Chancellor, and are of opinion that the appeal should be dismissed.

It may not be improper to add that the $20 note, on which the judgment against the administrator was obtained, and the land sold, had been barred by the Statute of Limitations nearly two years before the suit against the administrator was instituted. It was the duty of the administrator to have interposed the plea of the statute. Payment by him of a demand thus barred, would be a *devastavit.*It can constitute no claim against the heir, ei*256ther on the part of the administrator, or of the holder of the note. Although by the statute of George 2d, lands in the possession of the heir are liable for the payment of the simple contract debts of the ancestor, yet in that case the cause of action must be established against the heir, and he is not bound by a judgment against the executor or administrator, to which he was neither party nor privy; and so it was decided in *Vernon*vs. *Valk,*2 Hill C. R. 261.

The decree of the Circuit Court is affirmed, and the appeal dismissed.

Harder and Johnson, Chancellors, concurred.