Opinion
December Term, 1856.
Before the land of an infant can be sold for debt, under the petition of his guardian, there must be a judgment of Court, that there was a debt against the estate of the ward.
It must also be alleged in a petition, for selling an infant's land, that the debt to be satisfied, was one against the ancestor, and not simply a debt contracted by the ward or his guardian.
ACTION of EJECTMENT, tried before his Honor, Judge PERSON, at the Fall Term, 1856, of Cumberland Superior Court.
William H. Coffield, the plaintiff, was the owner of the land in question in 1841; he was then a minor, and was such at the time of bringing this suit; his guardian, one Bennett, filed the following petition: "The petition of Furney Bennett, guardian of William H. Coffield, minor, under the age of 21 years, * * * showeth that his ward, William H. Coffield, is indebted to the amount of $216 and upwards; that he has no assets in hand to pay off and discharge this debt, and that there is not personal property enough in his hands to discharge the same." Upon this petition, a sale was ordered and duly made in pursuance thereof, and the defendant became a purchaser at the sale of the same, and took a deed for the premises. The question was as to the sufficiency of the proceedings and the validity of the sale under these circumstances.
His Honor, upon the foregoing case, which was agreed by the counsel, was of opinion that the plaintiff was entitled to recover. From which judgment, the defendant appealed to the Supreme Court.
Moore and Strange for plaintiff.
W. A. Wright and Bryan, for defendant.
The sale was void, because it does not appear that the County Court passed on and ascertained the fact, that there was a debt or demand against the estate of the ward. Spruill v. Davenport, 3 Jones' Rep. 42; Pendleton v. Trueblood, Ibid. 96.
But there is another fatal objection. The petition does not allege that there was a debt or demand against the estate of the ward. The allegation is, that the ward is indebted to the amount of $216, and the guardian has no assets, and there is no personal property out of which the debt can be paid. There is a material difference between a personal debt of the ward and a debt against the estate of the ward; i. e., a debt of the ancestor, for which the land of the ward is liable. It is manifest, by a perusal of it, that the statute under which this proceeding was had (Rev. Stat. ch. 63) is, as its title shows, "A mode of subjecting the land of deceased debtors to the payment of their debts," and consequently does not extend to personal debts contracted by, or on account of, infants. At common law, an heir sued for the debt of his ancestor, might pray the parol to demur until he arrived at full age. The statute changes this by substituting a provision, that no execution shall issue against the land of heirs, who are under age, until after the expiration of one year, during which time, it is the duty of guardians, under the 11th section of the Act, to apply for an order of sale.
It was stated at the bar, that the debt for which the land was sold, was contracted in prosecuting or in defending a suit for or against the infant. So, it was not a debt of the ancestor, but was a personal debt of the ward; and the defendant's title is bad, not for a mere omission of the proper entries by the Court, but upon the merits, because upon the facts, the County Court had no power to order a sale. There is no error.
PER CURIAM. Judgment affirmed.