Soles v. Hickman

The opinion of the court was delivered by Lowrie, J. The learned president of the District Court decided that, where a devisee of land sells and conveys it, and afterwards, ¡and within five years after the testator’s death, suit is brought against the executor with notice to the devisee, and ■ not to the alienee, though in actual possession, and judgment is obtained [345] thereon over six years after the testator’s death, and the land sold in the hands of the alienee, no title passes by such proceedings. It seems to us that this is right. The proposition, as we have stated it, has, perhaps, some unessential elements in it, and these being left out, it may be stated thus: where, in an action against executors and administrators, it is sought to charge the real estate left by the decedent, his widow and heirs and devisees, and their alienees, owners of the land, must have notice of the proceeding, so that they may respectively become parties thereto. It is said that this is requiring more than is in terms required by the Act of Assembly relating to executors and administrators, 24th February, 1834, § 34, and so it is; but the decision is not thereby condemned, for there are many rules of law not to be found in Acts of Assembly; and many Acts of Assembly are intended to embrace every essential rule in relation to their subject-matter, and yet come short of it. This act is plainly defective in requiring notice to heirs or devisees; for not seldom there may be both heirs and devisees, and then both ought to have notice. In the decisions it is understood as requiring notice to the owners of the land sought to be charged; and the widows, heirs, and devisees are named only because they arc, in the first instance, the owners of the decedent’s lands: 2 State Rep. 113; 9 Id. 249; 14 Id. 45, 124. Under the English law, land in the hands of the alienees of heirs and devisees was not chargeable even for specialty debts; but if the heirs and devisees sold, they were personally chargeable according to the value: 2 Saund. by Wms. 7 e, 8 b. With them, therefore, the alienees would not be proper parties. Our law seems to follow the land into the hands of the alienees, and, of course, this would give them a title, on the same principle, to be heard as parties. Under the English law, administrators and executors, as such, had nothing to do with the real estate; and when that was sought to be reached for debts, it was by a direct action against the heirs and devisees, or by a bill in equity against the executor, with notice to the heirs and devisees, if the will created a trust for debts. The personalty alone went into administration proper. With us, however, there is a true transmission of title of land to executors and administrators, so far as the same may be found necessary to pay debts and legacies. In the Orphans’ Court forms, the title is treated as being in the executors and administrators for such purposes; and hence, under the direction of the Orphans’ Court, they may sell for such purposes without notice to the heirs and devisees. On the death, the whole estate passes into the Orphans’ Court for administration, and all titles by inheritance,,and devise are subject thereto. But the common law remedy, somewhat incongruously, and [346] with some change of form, still remains. Instead of suing the heirs and devisees, creditors sue the administrators or executors as representatives of the whole estate, with notice to the heirs and devisees, as having special interests therein that are sought to be reached. Under the common law remedy, the title to the land is considered as in the heirs subject to debts, and in the Orphans’ Court it is treated as being in the executors and administrators until the debts are paid. Pursuing the common law remedy, the heirs must have notice. When the statute, 3 W. & M. c. 14, made lands in the hands of devisees chargeable with debts, then they became entitled to notice, as the heirs were before by common law; and if now the liability extends to alienees, they also must have notice. This is merely extending the common law right to notice according as the liability extends; and it shows that the only objection to the law of 1834, § 34, is that, in declaring the common law, it did it incompletely. The proceeding, so far as it relates to real estate, is strictly a proceeding in rem: 4 Watts 372; and bearing this in mind, there can usually be no difficulty in deciding who are entitled to notice. It is the owners of the land, the thing sought to be charged and taken, and this is the rule adopted, but not fully expressed in the act. It is as owners of the land that the heirs or devisees are entitled to notice. If they were not owners, they would not be entitled to it, but others would. The heir need not have notice, if he takes no land by descent. If he has enough to secure the claims, no notice needs to be given to the other terre tenants: Saund. by Wms. 7, 72, n. And if the ancestor parted with his title in fraud of creditors, his heirs cannot inherit; and on a remedy sought against it, they are not entitled to notice: 26 State Rep. 95. It is not always easy to say when notice is essential to the validity of such proceedings; and when it is only an error of form, that is cured by not being corrected by due process of law in the case. In the present case, we regard the notice to the real owner as an essential part of the process of reaching the lands in his hands. A judgment obtained against the executors of a decedent, without notice to the alienee of a devisee, is not such a judgment as will justify a sale of the land under it. The law never listens to the objection that it may be difficult to learn who the terre tenants are; else the rule of the common law, to which we have adverted, could have no existence. Judgment affirmed.