Covell v. Weston

Spencer, Ch. J. delivered the opinion of the Court. The plaintiffs have taken three objections to the plea; 1st. That it shows the certainty of assets when the suit was commenced, at which time, it is urged, the plaintiff’s lien became perfect; 2d. That the heirs cannot avail themselves of a sale by the administrator, because, they ought to have appeared before the Judge of Probates, and objected to a decree; and, 3. That it is bad in law. If we are to understand, by the first objection, that the plea is bad, because it sets forth the occurrence of events happening after the action brought, but before the plea was put in, there is no foundation for the objection. In Le Bret v. Papillon, (4 East’s Rep. 502.) the plea was in bar, that the plaintiff was an alien enemy; replication, that at the time of exhibiting his bill, as well the plaintiff, as the persons then exercising the powers of government in France, were at peace and amity with the king of Great Britain, and his subjects. To this the defendant demurred. The Court were of opinion, that the plea was ill pleaded ; that it should have been, that the plaintiff ought not further to [419] have and maintain his action, and that no matter of defence arising after action brought, could properly be pleaded in bar to the action generally. It was distinctly admitted by the Court, that a plea of judgment recovered, by executors, in bar of the action, subsequent to the suit brought, might be pleaded generally in bar; and on the principle, that the judgment of the Court need not be in the words of the plea, but that they had the power to give the proper judgment. In that case, they gave judgment, that the plaintiff be barred from further having and maintaining his action. There can be no stronger objection to this plea, which is, that the plaintiff ought not further to have and maintain his action, put in before any other plea had been interposed, than there is to a plea puis darrein continuance. Had the defendant pleaded before the proceedings before the Judge of Probates terminated, he might have relinquished such plea, and pleaded as he has now done. The second objection to the plea is founded on the posi - tion, that the plaintiff having acquired a lien on the lands descended, by the commencement of his suit, his lien is not affected by the subsequent sale under the decree of the Judge of Probates ; or, if affected by that proceeding, the defendants are responsible for it, on the ground, that they might successfully have opposed the decree which was made, by showing the commencement and pendency of this suit. At common law, if the heir had bona fide aliened the lands which he had by descent, before an action was commenced against him, he might discharge himself, by pleading that he had nothing by descent at the time of suing out the writ, and the obligee had no remedy at law; but, now, by the statute of 3 and 4 W. & M. ch. 5. s. 5., and by the 2d section of our statute, (1 N. R. L. 317.) heirs aliening lands before suit brought, are liable for the value. So, that since the statute, an heir having lands by descent, is liable in respect to such lands, whether he has aliened or not; and in this sense, and no other, has a creditor of the ancestor any lien on the lands descended. An alienation by the heir, after suit brought, cannot protect the heir, or even a purchaser from him. In this case, the heirs have been passive i the lands descended have been conveyed by regular pro [420] ceedings before the Judge of Probates * their title has been ¿efeate[j5 not by their act, but by the act of the law. The statute (1 N. R. L. 450, 451.,) provides, that when an executor or administrator shall discover, that the personal estate of the testator or intestate, is insufficient to pay the debts of the testator or intestate, he shall apply for the sale of the real estate whereof the .testator or intestate died seised ; and it declares, thafthe conveyances for the same shall be valid and effectual against the heirs and devisees, and all claiming by, from, or under them. What claim has the plaintiff to the land of the intestate ? Certainly none which attached on the land in the life time of the intestate. His claim is upon the heirs, in consequence of the indebtedness of the intestate, in respect to the lands which have descended to them. If, therefore, he has any claim, it is by, from, or under the heirs; and we perceive that the title of the purchaser, under the sale by the decree of the Judge of Probates, is paramount to any such claim, The error into which the plaintiff’s counsel has fallen, is in supposing that the creditor has an actual lien on the land. He has a lien on the heirs, in respect to the land, so that they cannot convey it, after action brought, to defeat his claim ; but he has ho lien on the land itself. By the laws of Connecticut, the real estate of an intestate is liable to be sold for the payment of his debts, where there is a deficiency of personal estate. The administrator has no right to meddle with the real estate by virtue of his general power, but derives this special authority, as with us, from the order of the Court of Probates, which possesses jurisdiction to direct a sale, upon a proper application, and proof of the deficiency of the personal estate. In the case of Ricard v. Williams, (7 Wheat. Rep. 114.) which came before the Supreme Court of the United States, upon a case from Connecticut, in which there had been a sale, under the order of the Judge of Probates, of real estate, the question was, whether the purchaser under that sale was entitled to claim and hold it against the bona fide purchaser of the heir j and the Court held, that the power of sale, when ordered, did not convey any estate in the lands to the administrator; that he derived an authority to sell from the Court; and that the estate passed to the purchaser, upon his entry into the [421] land, by operation of law, so that he is in under the estate of the intestate, and it was aptly compared to a power given by a will to executors to sell an estate. In such case, the lands descend, and the interest of the heir is liable to be defeated by a sale by the executors. In such a case, if the heir was to be sued for a debt of the ancestor, and prior to the plea the executors should sell, could it be pretended that the heirs have any thing by descent? So, here, the heirs took subject to the right of the administratrix to apply to the Court of Probates to sell the real estate to pay debts, and when that power is executed, and a sale has taken place, the title of the heir is gone, and he has nothing by descent. Nor could the heirs have made any successful opposition before the Court of Probates. They could have shown that they were sued for a debt of the intestate ; but the answer would have been, that the event had happened when the lands could be sold for the payment of all the creditors, pari passu. This view of the case renders it unnecessary to consider the objections made by the defendant’s counsel, to the regularity of proceeding against a part of the heirs only, and to the sufficiency of the declaration. The plea itself may not be formal, but the demurrer is general, and no objections have been taken to the plea. Judgment for the defendants.