Mauney v. . Holmes

Smith, C. J., after stating the above. The correctness of the method of distribution adopted in the probate court, is maintained in the argument for the appellant, upon the ground also that by the lapse of time the liens on all the judgments, excluded by the ruling in that court, were extinguished. and thus became debts due by judgment merely, without relation to the time of docketing, and were displaced by those rendered and docketed at a later date, whose liens are preserved, and thus gave them the priority of right of satisfaction. The argument is fully met by the statute, which directs the order in which the debts of a decedent must be paid by his representative. After mentioning four classes to which the preference is given, which has no reference to the present case, the next 'and fifth class in the order of payment is thus described: “Judgments of every court of competent jurisdiction within this state, docketed and in force, to the extent to which they are a lien on the property of the deceased at his death.” The priorities ámong the judgment creditors are plainly to be determined as they exist at the death of the debtor, and they remain unaffected by the lapse of time thereafter, as long as the bar of the statute does not interpose to defeat the debt itself. This is the manifest meaning of the act, and subserves its essential purpose to commit the administration of the assets, personal first, and if they are insufficient, real, in the discharge of the decedent’s liabilities, to his personal representative. The heir or devisee has a right to have the land derived from the ancestor or testator exonerated, if the personal estate which may be legally thus applied is sufficient to discharge the encumbering judgment debt, and hence no harm *432 should come to the creditor by the necessary delay in the administration. “ The administration of the whole estate,” in the words of Reade, J., “is placed in the hands of the administrator or executor, as best it should be, instead of allowing a creditor to break in upon it with an execution and sale for cash at a possible sacrifice, when it may turn out that the personal assets would be sufficient without a sale of the land at all.” Murchison v. Williams, 71 N. C., 135. If the delay should be unreasonable on the part of the representative in calling in and applying the assets, and, in case of deficiency, in obtaining an order for converting the land into assets also for the purpose of payment, a remedy is furnished the creoitor having a lien, to enforce it by a direct proceeding against the heirs or devisees to have the land sold,. (C. C. P., § § 318 to 324) after the expiration of three years from the granting of letters testamentary or of administration. In case of resorting to this remedy, the representative must be made a party in order that if he has funds which ought to be, they may be applied to discharge diminish the lien debt, and relieve the land upon which it rests. We sustain, therefore, the ruling of His Honor that the priorities subsisting among the judgment creditors at the death of the debtor, are not disturbed by the time since elapsing, nor are their liens displaced. 2. It is further contended that the judgments rendered more than ten years before the bringing of the action, are barred by the statute of limitations, and as no recovery could be had in a suit, they cannot be enforced against the intestate’s estate. The answer to this contention is furnished in section 43 of the Code, which provides that “ if a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrators *433 after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” This would eliminate more than five years from the count of time, and leave it less than ten years as to each of the judgments. In this connection we wish briefly to advert to and qualify, so as to avoid misconception, an expression used in delivering the opinion in Flemming v. Flemming, 85 N. C., 127. It is there said to be “ equally well settled that the death of the debtor after the cause of action has accrued, will not suspend the running of the statute to the completion of the prescribed time.” This was intended to be the statement of a general principle resting upon numerous adjudications, and without reference to the modification made by the words of the act recited, and to which attention was not at the moment of penning the sentence, directed, and certainly with no intent to disregard or ignore the express statutory mandate. We think there is no error in the ruling of His Honor, and the judgment must be affirmed. As the settlement can be more conveniently proceeded with in the' court below, we remand the cause in order thereto. No error. Affirmed.