Wilson v. . Bynum

Ashe, J. (after stating the facts as above). This case savors very much of a “ fishing bill.” It purports to be an action in nature of a creditor’s bill, instituted to sell the lands devised by Charles McDowell, deceased, to the defendants, his grand-children, for the payment of his debts. The record transmitted to. this Court by the appeal, interspersed as it is with amendments, *722 “at random strung,” is obscure, inconsistent, and voluminous. There are no exceptions taken in the case. The complaint alleges that the assets of the estate of Charles McDowell had been exhausted by the payment of debts, and the casualties of the war — in other words that the administrator had fully and legally administered the assets; and yet in their prayer for relief, they demand that inasmuch as the defendants insist that the administrator did have assets sufficient to pay the debts of the testator Charles McDowell, and had committed a devastavit, that, if that fact should be so found on a reference, a judgment should be rendered in their behalf against Richmond Pearson, executor of R. M. Pearson, who was surety on the administration bond of N. W. Woodfin, and this without any allegation in the complaint of a breach of the bond; thus attempting to use the answer of the defendants to supply the deficiencies of the complaint; and, without a single exception pointing to any error, we are called upon to grope our weary way through a large mass of pleadings and record evidence, constituting a moderate sized volume, in search of errors supposed to exist. And when we come to the judgment of the Court, hoping to derive some light from that source, we axe confronted with the laconic announcement “ That the plaintiffs are not entitled to recover,” so that it is impossible for this Court to ascertain upon what ground the judgment of the Court belovr was rendered; whether because the action was barred by the statute of limitations; or because the bond was merged in the judgment; or because there was another action depending between the same parties asking for the same relief; or because of any of the other defences set up by the defendants. In the absence of any light upon the subject, we are left to conjecture, and it is possible the judgment was rendered upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Assuming, then, that to be the ground of the judgment, wre proceed to inquire if it can be sustained. *723 The administrator de bonis non of Charles McDowell, having declined to file a petition for leave to sell his real estate to make assets for the payment of his debts, this action, in the nature oí a creditor’s bill, is brought against the said administrator and the devisees, to sell the land devised, to make assets for the payment of the debts of the testator, and among them the debt of the plaintiffs, which was reduced to’judgment in 1869. The judgment was quando, and so considered by the parties after the amendment of the record in the case by Judge Cloud, and it was so held to be by this court in the case of Walton v. Pearson, 85 N. C., 34. Before the act of 1846, the lands of a decedent could not be sold for the payment of his debts after such a judgment, because when an administrator who was then sued, pleaded fully administered, and the plea was established by proof or admitted, the creditor was put to his election, to take a judgment quando acci-derint, or sign judgment for the amount of his debt, and proceed by soire facias against the heirs or devisees to subject the land descended or devised to the satisfaction of his judgment. If, however, he made the election to take a judgment quando, he could not proceed against the heirs or devisees, for he had taken his chance to realize his debt from assets that might thereafter come to the hands of the administrator. As the law then stood, the administrator had no concern with, or control over, the lands of his intestate. Martin v. Harding, 3 Ired. Eq., 603. But the act of 1846 changed the law in this respect, and empowered the executor or administrator, when there was-an insufficiency of assets to pay the debts of the deceased, to sell the lands descended or devised, after obtaining a license therefor from the Superior or County Court; and the act further provided that the proceeds of the sale should be deemed legal assets for the payment of debts. But lands are held not to be assets until they are sold and the proceeds received by the administrator— Vaughan v. Deloatch, 65 N. C., 378; Hawkins v. Carpenter, 88 N. C., 403, and Fike v. Green, 64 N. C., 665—and it is *724 still an open question whether an administrator can be sued on his bond, when he has been guilty of negligence in not applying for and obtaining an order to sell the real estate of his intestate. But when there is a deficiency of assets, it is nevertheless the duty of the administrator to take the necessary steps prescribed by law to sell the real estate of his intestate for the payment of his debts, and when he refuses so to do, he may be compelled by the clerk of the Superior Court to perform the duty, or the creditor, as in this case, may bring an action in the nature of a creditor’s bill against him and the heirs-at-law or devisees, as the case may be, for sale of the land under the equity jurisdiction of the court. That jurisdiction still exists. The Code has not taken away from the Superior Courts any jurisdiction heretofore exercised by Courts of Equity, except, perhaps, in cases exclusively within the jurisdiction of justices of the peace — Wadsworth v. Davis, 63 N. C., 251 — and the Courts of Equity have always entertained jurisdiction of creditor’s bills, upon this subject — Allison v. Davidson, 1 Dev. & Bat. Eq., 46; Simmons v. Whitaker, 2 Ired. Eq., 129, and Martin v. Harding, 3 Ired. Eq., 603 — and especially in cases like this, “when the deficiency in personal assets resulted from accident, after they had come into the hands of the administrator, as here alleged by emancipation, &c., the courts of law (formerly) were not competent to order a sale of lands to pay debts, but that application must be made to a Court of Equity.” Finger v. Finger, 64 N. C., 183. So that in whichever way the assets derived from the sale of the lands are realized, after judgment quando, they are applicable to its satisfaction. Here the plaintiffs allege they have a judgment against the estate of Charles McDowell and the administrator declines to file a petition for the sale of the land; that the assets of the estate have been exhausted by the payment of debts and the emancipation of the slaves and other casualties of the war; and that the defendant’s devisees, have lands in their possession devised by Charles McDowell, the testator. This, we think, is a statement of facts sufficient to constitute a cause of action, and if His Honor *725 rendered judgment upon that ground, there is error. But if we are mistaken in our conjecture as to this being the ground upon which the judgment was rendered, there is still error in the judgment of the court below. There are several issues of fact squarely raised by the pleadings. The plaintiffs allege that the assets have been exhausted by the payment of debts, &c. This, the defendants deny, and aver that there came to the hands of N. W. Woodfin, assets sufficient to pay all the debts of the testator, which were wasted by the said Woodfin, and they further insisted that the plaintiffs’ action was barred by the statute of limitations. These are issues of fact, which His Honor had no right to decide, unless upon an agreement of counsel that His Honor might decide the whole case upon the law and facts. But the record does not show that there was any such agreement. It was, therefore, error in not submitting these issues to the jury. It is with some reluctance we grant a new trial in this case, and only do so in consideration of the large interest involved. And should the case again come before this court, as it is probable it will, it is to be hoped the record will be presented in a more orderly and intelligible form. The judgment of the Superior Court is reversed, and this must be certified to that court that a new trial be had. Error. Reversed.