Donoho v. . Patterson

RodmaN, J. The material facts are: Willie Jones died in 1861. At April Term, 1861, of the County-Court of Caswell, Walter Jones, who was his' only heir, became his administrator. Walter duly administered the personal estate and after- *654 wards left the State. He was duly removed from tbe admin-istratorship and the plaintiff appointed administrator de bonis non. There are debts of Willie Jones outstanding and unpaid, The plaintiff seeks to have the lands of which Willie Jones died seized sold to pay his debts. The defence is, that some time in 1862, Walter Jones and his mother, Priscilla, who was entitled to dower, agreed to sell one of the pieces of land to Thomas L. Lea, who then paid him its full value, and as the defendant allege, bona fide, and wdthout notice that any debts of Willie Jones were unpaid. In January, 1864, Walter and Priscilla executed a deed of conveyance to said Lea. Some of the defendants are the heirs of Lea, and are in possession of that land. The other defendant, Patterson, in like manner, in 1862, agreed to purchase from Walter and Priscilla, the lot in Milton, and paid to Walter its full value. He alleges that the agreement was made bona fide, and without notice of any unpaid debts of Willie Jones. In October, 1863, Walter and Priscilla executed to him a conveyance for the lot. 1. The question is, are these conveyances valid against the creditors oí Willie Jones? The Revised Code, chap. 46, sec. 61, says: “ All sales, conveyances or alienations of any lands of a deceased debtor, made by any devisee or heir-at-law, within two years after probate of his will and qualification of the executor, or letters of administration on his estate, shall be void as to the creditors, executors and administrators of such deceased debtor.” It is urged for the plaintiff, that the agreement for a sale, and the payment of the price in 1862 was equivalent to an executed conveyance, and was therefore fraudulent and void as against him. We concede that. But we think the conveyances executed after the expiration of the two years are not vitiated by the prior invalid agreements. The statute imposed a restriction on th,e heir. He might sell within the time, but the purchaser would be defeated if creditors appeared. The law requires estates to be settled up in two years, and creditors *655 who keep back their claim beyond that time, are in laches. Purchasers are entitled to infer that all debts have been paid, and there is no longer any restriction on the power of the heir to sell, Putting the agreements, of 1862 aside as non-existent as to creditors, the subsequent sales were valid, unless the plaintiff can maintain his other grounds of exception. 2. It is further urged that the act cited, (Rev. Code, chap. 46,) wras a statute of limitations which was suspended by the act of 1861, chap. 4, sec. 18, ratified September 11th. That section is in these wards: “ That the operation of the statute of limitations be, and the same is hereby suspended so long as this act remains in force.” Now what is meant by iC the statute of limitations 3” There is but one chapter in the Revised Code entitled “ limitations,” chapter 65. It is confined to prescribing within what times actions shall be brought. It does not contain the enactment making sales by heirs within two years, void as to the creditors of their ancestor, Rev. Code, chap. 46. All the sections of the act of 1861, preceding section 18, relate to the bringing of actions. For these reasons we are of opinion, that the act of 1861 does not apply in the case before us, but is confined to such statutes as limit the time for bringing actions. 3. This brings us to consider the effect of the act ratified February 1863, (acts 1863, ch. 34.) The Words, so far as they are material, are as follows: “ That in the computations of time for the puipose of applying any statute, limiting any action or suit, or any right or rights, cr for the purpose of raising a presumption, &e., the time elapsed since the 20th day of May, which was in the year 1861, or which may elapse until the end of the present war, shall be excluded from such computation.” In Hinton v. Hinton, Phil. 410, this act was held to cover the act (Rev. Code, chap. 118, sec. 1) by which widows were limited to six months after probate of the husband’s will, within which to dissent therefrom, and the plaintiff was allowed to have the benefit of a dissent made after that time. *656 In Neely v. Craige, Phil. 187; it was held that the act of '1863 did not prevent a judgment from becoming dormant upon a failure to sue out execution within a year and a day. In Morriss v. Avery, Id. 238. it was held that the act prolonged the time for reviving an action. All of these cases profess to go on the ground that the object of the act was to preserve existing rights, and not to give new ones. The distinction between the case of a widow and that of an heir, is this. Chapter 118, Revised Code, says she shall not dissent after six months; that is, in effect, that she may dissent within that time. In effect it confers or secures a right, and the act of 1863 preserved and continued that right. Chapter 46, Revised Code, says the heir shall not sell within two years. To give the act of 1863 the construction contended for by the plaintiff, would preserve and continue a disability. We think this is a distinction of substance and in principle, and not in terms only, and that the act was not intended to reach the case of an heir. No injury is done to the creditors of the deceased, nor are they deprived by this construction, of any right. There was no act staying them in sueing the administrator, and if from dilatory legislation, or any cause other than their own laches, they had been unable to get a judgment against the administrator within two years, there can be no doubt that a Court of equity in some waj7, (it is needless to consider how,) would have preserved their rights against the land. But they made no effort until the rights of the defendants had vested. It is perhaps proper to say that nothing in this opinion is intended to touch upon the liability of the sureties to the administration bond. Neither they, nor their rights, are before us. Judgment reversed, and case remanded to be proceeded in, &c. Per Curiam. Judgment reversed.