Justices of the Inferior Court v. Moreland

By the Court. McDonald, J. delivering the opinion. [1.] This is a proceeding at Law to'subject to the payment [147] ■■of a judgment against the administrator, obtained in 1854, a negro man who had been distributed in 1848 to the claimant, who was one of the heirs at law of defendant’s intestate. If theflegal lien of the judgment upon the property had not attached before the distribution, it is not subject thereto, unless there was fraud in the distribution. If the suit on which the .’judgment was rendered was pending at the time of the distribution, the question, whether the distribution was made to •delay and hinder the creditor in the collection of his debt, ought to have been submitted to the Jury. Rut the record ■discloses no such fact. The debt had been twice sued, and twice had the plaintiff been nonsuited. The third suit ■was instituted in 1848, and in -1848 was the property distributed to the plaintiff. Rut which was first in order of time, •the commencement of the suit, or the distribution, does not appear; but as there will be no presumption of fraud, but •upon the proof of facts or circumstances on w'hich to found at, we will not assume that the suit was first. There is no reason why the legal title of the claimant to the property, which had passed to him without fraud nearly six years before, should be disturbed by the judgment. This property is unquestionably liable, rateably, to pay the plaintiff’s judgment, if the administrator has not assets or is not insolvent; but it must be subjected by a different kind ■of proceeding, before a tribunal that can bring all the heirs •of the estate before it, and compel those who are, solvent'to'* ■contribute, rateably, to the payment. If some are insolvent, those who are able to pay may be compelled to contribute to the extent of the assets, if necessary, received by them. Ret the judgment of the' Court below be affirmed.