Flynn v. . Rumley

CONNOR, J. Tbe judgment in this action is affirmed on tbe authority of Tuck v. Walker, 106 N. C., 285, 11 S. E., 183. In tbe opinion in tbat case it is said: “It is well settled tbat though there may be unsatisfied judgments constituting liens upon tbe land of tbe debtor, when be dies tbe judgment creditor is not allowed to sell it under execution, but tbe administration of tbe whole estate is placed in tbe bands of tbe personal representative, who is required first to apply tbe personal assets in payment of tbe debts, and if they prove insufficient, then tbe statute prescribes bow tbe lands may be subjected and sold, so as to avoid a needless sacrifice by selling for cash, or a greater quantity at all than is required to discharge tbe indebtedness. Tbe Code, secs. 1436-1446 (now C. S., 74-77); Sawyers v. Sawyers, 93 N. C., 325; Mauney v. Holmes, 87 N. C., 428; Lee v. Eure, 82 N. C., 428; Williams v. Weaver, 94 N. C., 134.” Tbe plaintiffs contend tbat this principle is not applicable to tbe facts in tbe instant case, because tbe judgment debtor having conveyed tbe land after tbe docketing of tbe judgment, and prior to bis death, left no estate, real or personal, to be administered. This contention cannot be sustained. Tbe execution, having been issued after tbe death of tbe judgment debtor, was not warranted by law. A sale of tbe land made under tbe execution would be void. See Sawyers v. Sawyers, supra. It would seem tbat where, as in tbe instant case, a judgment debtor bas died since tbe docketing of tbe judgment, and bad no estate, real or *28 personal, at bis death requiring the appointment of an administrator, and after the docketing of the judgment, the judgment debtor conveyed, by a good and sufficient deed, land owned by him at the date of the docketing'of the judgment, the judgment creditor can maintain an action in the Superior Court of the county in which the land is situate, against the grantee of the judgment debtor, to foreclose his statutory lien. Only the judgment creditor and the grantee of the judgment debtor would be necessary parties to such action. The judgment in this action is Affirmed.