Wilson v. Furey

Lore, C. J.: Do you contend that that applies to a devisee, that a man can give his property away without paying his debts? Mr. Sandy:—I have authority on that. Lore, C. J.:—We have decided that in this State. No man can give away his property until he has paid his debts. Mr. Handy:—My contention is that, the plea, which has been demurred to, put in by Keziah Furey and David G. Furey, is a plea of which they can avail themselves, and is good and sufficient in law as a plea in bar. Counsel on the other side is trying to get by this seire facias a judgment directed against Keziah Furey, and David G. Furey her husband, as holding particular property. [281] Spruance, J.:—You cannot charge mere terre tenants, except in respect of the property which they got from the deceased. Mr. Handy:—This is not merely a scire facias to the executor. The plaintiff has made the executor a party in place of the original party. In addition to that he has made the terre tenants-parties. As devisee, one of these terre tenants is a bona fide purchaser.. Since this is a scire facias to revive a judgment, and the plaintiff makes the terre tenants parties to the judgment, the terre tenants may plead in bar anything whichs shows that their lands are not liable to the execution of the judgment. Grubb, J.:—The plaintiff claims that although you may plead it, yet it is not sufficient under our statute. Mr. Handy:—I desire to call the Court’s attention to Foster on Scire Facias 305 (Pleading in Bar) ; Jefferson vs. Morton, el al., 2 Sanders’ Reports, 55. The question is, whether under the facts stated to which the plaintiff has taken a general demurrer, in the plea, a sufficient defense has been stated, to bar the claim as against the terre tenants. Spruance, J. (After citing Richardson’s Admr. vs. Peterson, 2 Harr., 366 and reading from Seals vs. Chadwick, 2 Pennewill, 381):—My understanding is that while it has been very usual in many of these cases to make heirs or terre tenants parties,, it is not necessary. Still it does no harm. And in this case these devisees are proper parties but not necessary parties, but whether they are made parties or not if judgment is recovered against the executors in the mode the statute provides this will take the land out of the hands of the devisee. Lore, C. J.:—The question here is, is this land relieved ? [282] The principle of law that applies is that the devisee takes the land subject to all of the testator’s debts. Although, perhaps not necessary, still he may make the terra tenants parties, and properly so. The demurrer is sustained. At the election of defendants’ counsel, let judgment of respondeat ouster be entered.