#### C. A. FLYNN and PHILLIPS FERTILIZER COMPANY v. WILLIAM RUMLEY, Sheriff of Beaufort County.

(Filed 22 September, 1937.)

1. Executors and. Administrators § 30 — Execution may not issue after death of judgment debtor.

After the docketing of the judgment the judgment debtor conveyed the property. After the death of the judgment debtor, execution was issued, and the judgment creditor instituted this action to compel the sheriff to sell the land under the execution, the judgment debtor having left no estate, real or personal, and therefore no administrator having been appointed. *Held:*The execution issued after the death of the judgment debtor was not warranted by law, and a sale thereunder would be void. C. S., 74-77.

*262.Judgments § 39—

Where the judgment debtor conveys realty after the docketing of the judgment and thereafter dies without assets, real or personal, requiring the appointment of an administrator, the judgment creditor may maintain an action in the Superior Court against the grantee of the judgment debtor to foreclose his statutory lien.

Appeal by plaintiffs from *Williams, J.,*at May Term, 1937, of Beaufort.

Affirmed.

This is an action for a writ of *mandamus*commanding tbe defendant, sheriff of Beaufort County, to levy on and sell, under an execution now in his hands, which was issued to him by the clerk of the Superior Court of Beaufort County on a judgment which is duly docketed in his office, a tract of land situate in Beaufort County, which was owned by the judgment debtor in fee simple at the date of the docketing of the judgment.

The facts alleged in the complaint and admitted in the answer are as follows:

1. The plaintiff C. A. Flynn is now the owner of a judgment which was rendered by the Superior Court of Beaufort County, at its May Term, 1928, in favor of his coplaintiff, Phillips Fertilizer Company, and against *W.*T. Latham for the sum of $289.87, with interest and costs. The said judgment was duly docketed in the office of the Superior Court of Beaufort County on 28 May, 1928. At the date of the docketing of said judgment, the judgment debtor, W. T. Latham, was seized in fee and was in possession of a tract of land situate in Beaufort County, containing 79 acres, more or less, and known as his Home Place. An execution issued on said judgment during the year 1929 was returned unsatisfied. No homestead was allotted to the judgment debtor in said tract of land.

2. After the docketing of said judgment, to wit: On 17 March, 1934, the judgment debtor, *W.*T. Latham, sold and conveyed the said tract of land to his sons, Bryan Latham and Brownley Latham, by deed which is duly recorded in the office of the register of deeds of Beaufort County, in Book No. 298, at page 631, reserving to himself, in said deed, an estate in said tract of land for his life.

3. *W.*T. Latham, the judgment debtor, died intestate in Beaufort County, on 25 January, 1937. At his death he owned no property, real or personal. No administrator of *~W.*T. Latham, deceased, has been appointed for the reason that he had no estate at his death.

4. On 20 April, 1937, the plaintiffs in this action caused an execution to be issued by the clerk of the Superior Court of Beaufort County on said judgment to the defendant sheriff of said county, and paid or tendered to him his fees for serving said execution.

*275. Plaintiffs have requested tbe defendant to levy on and sell under' said execution tbe tract of land in Beaufort County, wbicb was owned by tbe judgment debtor at tbe date of tbe docketing of said judgment, and wbicb be subsequently conveyed prior to bis death.

Defendant, being advised tbat be bas no right or authority to levy on and sell said tract of land under said execution for the'reason tbat tbe judgment debtor bad died prior to tbe issuance of said execution, declined and still declines to levy on and sell said tract of land under said execution.

On these facts tbe court was of opinion tbat tbe plaintiffs are not entitled to judgment commanding tbe defendant to levy on and sell tbe tract of land described in tbe complaint, under tbe execution in bis bands, and accordingly adjudged tbat tbe action be and tbe same was dismissed.

Tbe plaintiffs excepted to tbe judgment and appealed to tbe Supreme Court.

*McLean & Rodman for plaintiffs.*

*Grimes & Grimes for defendant.*

CONNOR, J.

Tbe judgment in this action is affirmed on tbe authority of *Tuck v. Walker,*106 N. C., 285, 11 S. E., 183. In tbe opinion in tbat case it is said:

> “It is well settled tbat though there may be unsatisfied judgments constituting liens upon tbe land of tbe debtor, when be dies tbe judgment creditor is not allowed to sell it under execution, but tbe administration of tbe whole estate is placed in tbe bands of tbe personal representative, who is required first to apply tbe personal assets in payment of tbe debts, and if they prove insufficient, then tbe statute prescribes bow tbe lands may be subjected and sold, so as to avoid a needless sacrifice by selling for cash, or a greater quantity at all than is required to discharge tbe indebtedness. Tbe Code, secs. 1436-1446 (now C. S., 74-77); *Sawyers v. Sawyers,*93 N. C., 325; *Mauney v. Holmes,*87 N. C., 428; *Lee v. Eure,*82 N. C., 428; *Williams v. Weaver,*94 N. C., 134.”

Tbe plaintiffs contend tbat this principle is not applicable to tbe facts in tbe instant case, because tbe judgment debtor having conveyed tbe land after tbe docketing of tbe judgment, and prior to bis death, left no estate, real or personal, to be administered. This contention cannot be sustained. Tbe execution, having been issued after tbe death of tbe judgment debtor, was not warranted by law. A sale of tbe land made under tbe execution would be void. See *Sawyers v. Sawyers, supra.*

It would seem tbat where, as in tbe instant case, a judgment debtor bas died since tbe docketing of tbe judgment, and bad no estate, real or *28personal, at bis death requiring the appointment of an administrator, and after the docketing of the judgment, the judgment debtor conveyed, by a good and sufficient deed, land owned by him at the date of the docketing'of the judgment, the judgment creditor can maintain an action in the Superior Court of the county in which the land is situate, against the grantee of the judgment debtor, to foreclose his statutory lien. Only the judgment creditor and the grantee of the judgment debtor would be necessary parties to such action.

The judgment in this action is

Affirmed.