Winfield v. . Burton

RodmaN, J. At common law the lands of a deceased ancestor in the hands of his heir could not be subjected to-the payment of the simple contract debts of the deceased If however the ancestor had bound himself and his heirs in a bond, the heir might have been sued thereon ; and if he had assets by descent, judgment might have been recovered against him to the value of the assets which he had by descent. This judgment might authorize either a general execution against the defendant as upon his personal debt, or a special execution against the land descended, in which case that alone was liable. An heir could immediately upon the death of the ancestor or at any time thereafter before judgment and award of special execution, sell the land descended and the purchaser acquired a title 1'ree from the incumbrance of the ancestral debt. The heir howéver was held bound to the creditor, in equity at least, to the value of the land. This general summary of the ancient law is abbreviated from Petersdoff’s Abridgement,. Title, Heir. The liability of the lands of a deceased debtor has been extended to include all his debts, and the mode of enforcing it has been very much changed in modern times, but the principle of the liability has not been essentially changed,, and reference to the old law may aid us in ascertaining what the present law is in a case not directly affected by-legislation. *393 In order to prevent frauds upon creditors of a deceased ancestor, it was long ago enacted in this State that conveyances by an heir of lands descended, made within two years after the death of the ancestor, should be void as to the creditors of the ancestor. Conveyances made after two years were left as at common law, that is, the estate passed to the purchaser free from incumbrance. In the present case the sale to Conigland was much more than two years after the death of Joyner, and it can not be doubted that he acquired an equitable title to the land,, that is, a right to have a legal estate conveyed to him on payment of the purchase money. It is equally clear that, the children of Mary Daniel (the devisees of the land) and those who have succeeded to their liabilities, are liable to a. personal judgment against them to the value of the land in favor of any creditor of Joyner, who can not get payment out of his personal assets. The defendant in the present case does not deny that he-owes the debt to some one. Ilis defence is that Badger and others, creditors of Joyner, had an equitable lien upon the notes sued on while in the hands of Daniel, to the amount of their debts ; and that upon their failure to obtain payment from the personal assets of Joyner, and under the circumstances, this lien followed the notes in the hands of the plaintiff; so that defendant is liable to Badger and others and not to the plaintiff. It may be observed here that under the decision of Lord v. Beard, ante 5, the present claim should regularly have been made by motion in the suit for partition among the Daniel children. This irregularity however is one which may be waived, and it has been ; we pass it therefore without further notice. Also, the defendant under O. C. P., §§ 61, 65, might have required Badger and the other creditors of Joyner, named in the answer, to have been made parties to this action so as to have them bound by the decision. *394 But he has not thought proper to do so, and has asked us to ■decide the case in their absence^ As to the effect of our ■decision upon their rights, we express no opinion. There being no replication to the new matter set forth in the answer, its truth was apparently admitted, and on the facts thus presented and assumed by the parties and the Court as true, the Judge gave judgment for the plaintiff, from which defendant appealed. The question presented is, — have Badger, &c., any lien upon these notes ? No authority has been cited to us in favor of their right, and we have not found any either under the old procedure or the modern. If a creditor of a deceased person has a right to follow specifically the proceeds of the sale of his lands in the hands of the heir and of an assignee of the heir, it is certainly surprising that not only no decision can be anywhere found in favor of such a right, but no case in which the right appears to have been ^claimed, or supposed to exist. We think it clear upon general principles that no such right exists. The creditor has ¡a quasi lien, if I may so call what is not a lien at all, on the land for two years, that is, he may under prescribed circumstances subject it to his debt, notwithstanding a sale by the lieir within that time. He never had a property in the land and his quasi lien was destroyed by a sale after two years, leaving him a mere personal claim on the heir. Becausej the notes of Conigland are the proceeds of the sale of the land, I do not think it follows that they can be said to represent the land even in the hands of the Daniels, and to be subject to the quasi lien that the land was. The sale was a conversion lawful for them to make, subject to their assuming a personal liability. I know of no process by which the notes in their hands could be seized, and of no precedent for any, still less does any quasi lien exist against the assignee. Whether he bought with notice of the facts and of the claims of creditors or not, it appears *395 to me to make no difference. The idea of following property when it is converted into another form of property is derived from the law of trusts, and I believe is peculiar to that law. If a guardian invests the money of his ward in land and sells the land to another with notice, the ward may hold the vendee a trustee for him, and so of any subsequent vendee with notice. If one take goods by a trespass, or by theft and sell them to another, the true owner may reclaim his goods from the vendee whether he knew of the want of title in his vendor or not; but I know of no authority which says that if the trespasser or the thief sells the goods, and converts the proceeds into other goods, the true owner has any property in, or any specific lien, or lien of any sort, on these last goods. Campbell v. Drake, 4 Ire., Eq. 94. There can be no ground for saying that Daniel was a trustee for the creditors of Joyner. And if it be that the-true owner has no specific claim to goods into which his goods have been converted wrongfully by a trespasser or a thief, a fortiori, must it be true that there can be no lien upon the proceeds of a sale of land which was permitted by law. The law permits the sale and substitutes for the land the personal liability of the heir. If the notes did represent the land in the hands of W. A. Daniel, it would seem, that he could sell and make a good title to them just as he could to the land. "We concur with the Judge below, and judgment is affirmed. No error. Judgment affirmed.