Opinion
October Term, 1790
Where there is judgment and execution against the ancestor in his lifetime, no sci. fa. is necessary against heirs or devisees. The demurring of the parol does not hold in this State.
The lands were devised after payment of debts to the plaintiff, and there was judgment against the ancestor in his lifetime. It is adjudged no sci. fa. was necessary in order to affect the lands in the hands of the heir or devisee after the death of the ancestor or devisor, because the lands never descended; and if they had, it was cum onere of the judgment, and the sci. fa. is only necessary where a new party is to be charged; but in this case execution was taken out in the lifetime of the ancestor, and the Court held that attached upon the land and went with it to whoever it came. Also, the demurring of the parol had its origin in feudal principles, and does not apply here.
Cited: Bowen v. McCullough, 4 N.C. 686.