Linker v. . Linker

Winborne, J. Upon the facts as stated these questions arise: I. Where there is a surplus of proceeds of the sale of land to make assets to pay debts of the estate of an intestate after such debts have been paid, has the administrator of the intestate the right to retain and apply the share of an heir in payment of an indebtedness, not an advancement, due by such heir to the intestate when judgment creditors ’ of such heir hold judgments duly docketed in the county where the land is situated at the date of the death of the intestate ? 2. If not, is the judgment creditor whose judgment was first docketed entitled to be paid in full before such other judgment creditors? The answer to each is “No.” Upon the death of an intestate his personal estate vests in the administrator, and the lands descend to his heirs, subject to be sold, if necessary, to make assets to pay debts of the intestate. Price v. Askins, 212 N. C., 583, 194 S. E., 284; Harris v. Russell, 124 N. C., 547, 32 S. E., 958; Avery v. Guy, 202 N. C., 152, 162 S. E., 217. “A personal representative has no control of the freehold estate of the deceased unless it is vested in him by will, or where there is a deficiency of personal assets, and he obtains a license to sell real estate for the payments of debts. . . . The heir of the testator is not divested of the estate which the law casts upon him by any power or trust until it is executed.” Floyd v. Herring, 64 N. C., 409; Speed v. Perry, 167 N. C., 122, 83 S. E., 176, and cases cited. *354 Land is not an asset until it is sold and tbe proceeds received by tbe personal representative. Fike v. Green, 64 N. C., 665; Edenton v. Wool, 65 N. C., 379; Hawkins v. Carpenter, 88 N. C., 403; Wilson v. Bynum, 92 N. C., 718. Land of wbicb an intestate dies seized may only be sold wben tbe personal assets of tbe intestate are insufficient to pay bis debts. C. S., 74; Avery v. Guy, supra. 0. S., 55, provides that “all proceeds arising from tbe sale of real property for tbe payment of debts . . . shall be deemed personal assets in tbe bands of tbe executor, administrator, or collector, and applied as though tbe same were the proceeds of personal assets.” But under C. S., 56, it is provided that “all proceeds from tbe sale of real estate . . . wbicb may not be necessary to pay debts and charges of administration shall, notwithstanding, be considered real assets, and as such be paid by tbe executor, administrator, or collector to such persons as would have been entitled to tbe land bad it not been sold.” Applying these principles and statutes to tbe facts of tbe present case, an undivided interest in tbe land of L. B. Linker, immediately upon bis death, vests in J. B. Linker, subject to be divested only in the event that tbe personal assets of tbe estate be insufficient to pay tbe debts of tbe estate, and then only to tbe extent that it is necessary to use tbe proceeds of sale of it to pay said debts. Tbe proceeds passed into tbe bands of the administrator for that purpose only, and only to that extent. Any surplus then reverts to tbe status of real estate as if tbe land bad not been sold. In Lafferty v. Young, 125 N. C., 296, 34 S. E., 444, it is said: “Being tbe proceeds of realty, tbe law for tbe purpose of indicating tbe channel in wbicb it shall go, by a fiction stamps it with tbe character of realty.” Plaintiff relies mainly upon tbe cases of Wallston v. Braswell, 54 N. C., 137; Balsley v. Balsley, 116 N. C., 472; Nicholson v. Serrill, 191 N. C., 96, 131 S. E., 377, and decisions in other jurisdictions. A careful consideration of them shows each to be distinguishable from tbe factual situation here involved. A judgment “is a lien on tbe real property in tbe county where tbe same is docketed of every person against whom any such judgment is rendered, and which be has at tbe time of tbe docketing thereof in tbe county in wbicb such real property is situated or wbicb be acquires at any time thereafter, for ten years from tbe date of tbe rendition of tbe judgment.” C. S., 614. In the present case it is not contended that any of tbe judgments are affected by tbe statute of limitations. As to priority of tbe lien of tbe docketed judgments, in Moore v. Jordan, 117 N. C., 86, it is said: “Tbe defendant Lewis contends that, *355 as was tbe case under our former system, tbe lien wben it attaches relates back to tbe day wben tbe judgment was docketed. . . . Neither tbe court nor counsel have been able to find any decided cases on this question in any of tbe states except one in Oregon. . . . We are, therefore, to construe our statute, Tbe Code, sec. 435 (C. S., 614), according to its meaning and on general principles of reasoning. . . . There seems to be no reason why priority should be allowed wben tbe title to tbe land and tbe several liens occur at tbe same moment. There is no equitable ground on which to place it, because one judgment debt in tbe eye of the law is as just as any other, and there is no natural justice in tbe proposition. . . . Our conclusion is that tbe proceeds of tbe land should be applied to tbe judgments pro rata.” Johnson v. Leavitt, 188 N. C., 682, 125 S. E., 490. Tbe administrator will pay tbe cost out of tbe fund. Tbe judgment below is Affirmed.