Opinion
(December Term, 1832.)
Where the heir has land descended from both parents, a creditor cannot sell that descended from the mother, under a judgment against that descended from the father, although the mother held as devisee of the father.
THIS was a petition for partition, which was submitted to Daniel, J., at BEAUFORT, on the last circuit, upon the following case agreed:
Hogg and J. H. Bryan for demandant.
Gaston contra.
The demandant had obtained a judgment against Benjamin M. Selby, the executor of Maurice Jones. Selby having wasted the (375) assets, the demandant in 1822 brought a sci. fa. against Sarah and Mary E. Jones, the wife and daughter, and devisees of Maurice, seeking to obtain satisfaction of his judgment from the devised lands. In 1823 Sarah, the widow of Maurice, died intestate, leaving Mary E. Jones, the daughter of Maurice, and the defendant, a daughter by a second marriage, her only children. No notice of her death was taken upon the record of the demandant's suit by sci. fa. In 1825 the demandant amended his sci. fa. filing a new one as a substitute for the former, and as of the same teste (1822) against Mary E. Jones alone, which suggested "that Maurice Jones died seized of land which descended to the said Mary" and summoned her "to show cause why the said Thomas Trotter shall not have execution for his said debt against the said lands so descended as aforesaid." Upon this sci. fa. final judgment was given, "that the plaintiff have execution against the lands that were of Maurice Jones, of which he died seized"; and execution issued against those lands "in the hands of Mary E. Jones, the heir of Maurice Jones." Under this execution the plaintiff purchased the land in dispute, which was a tract devised by Maurice Jones to his wife Sarah. Upon these facts his Honor gave judgment for the defendant, and the demandant appealed.
It is argued for the plaintiff that the sale was good, because the land was liable in the hands of Mary E. in whatever manner it came to her, and therefore the pleadings need not show how she was heir, or how she otherwise claimed the land; that the proceeding against real estate is considered to be in rem, and the only reason for bringing in the person is to contest the debt, the state of the personal assets, or the insolvency of the executor.
The principles asserted are not clearly perceived by the Court to be entirely correct, for it may be that the devisee paid debts to the value of the land, and would have a right to show that, although she could (376) not plead generally "nothing by devise." But it is unnecessary to pursue that investigation, because if the proceeding be regarded as in rem, as strictly as if it were on a statute or recognizance in England, the process must be served on and bring in the person then claiming and enjoying the thing sought to be condemned. That person is the one to defend it; hence, those who are the terre-tenants must be summoned. When this suit was brought Mary E. was not seized of these lands. They belonged to her mother, and could not have been sold under a judgment against the daughter, if the mother had survived the judgment; neither can they as against any person succeeding to the mother's estate. They never have been defended. It is true Mary E. was before the court, but the lands which descended from her father to her may not have been worth a contest, or may have been sold for other debts; or indeed none may have descended to her, and so she could not have been injured. It may be that the heir need only be named as terre-tenant, but if one having a several interest die pending the suit, his share cannot be sold under the judgment, unless the suit be revived against his heir, which may be done, I suppose, though the heir of the one dying be not also the heir of the first debtor.
But if the process and judgment could have been so framed as to extend to these lands, thus acquired by the defendant in that suit pending it, they have not. They embrace in terms only, "lands of which Maurice Jones died seized, and which descended from him to Mary E. Jones, the heir of Maurice." Now although it might not have been necessary to name her as heir of Maurice, and allege that the land came to her in that character, yet when she is named as heir of one, and the pleadings do not designate the land by boundaries or other means than as being held by her as the heir of the particular person mentioned, the plaintiff is bound by the description and cannot sell under that judgment land claimed in another right, and especially when that right has accrued after action brought.
PER CURIAM. Judgment affirmed.
(377)