CARDWELL v. BRODIC, 5 N.C. 97 (1805) CARDWELL'S HEIRS v. BRODIC.Supreme Court of North Carolina December Term, 1805. From Hillsborough. Judgment of execution against the real estate of a deceased debtor in the hands of the heirs and devisees, reversed, because it was not found that the executrix had fully administered, had no assets or not sufficient to satisfy the creditor's demand.
Citator
UpLaw has not yet analyzed CARDWELL v. BRODIC, 5 N.C. 97 (1805). The absence of a flag is not a finding that it is good law.
CARDWELLv. BRODIC,5 N.C. 97(1805)
CARDWELL'S HEIRS v. BRODIC.
Supreme Court of North Carolina
Judgment of execution against the real estate of a deceased debtor in the hands of the heirs and devisees, reversed, because it was not found that the executrix had fully administered, had no assets or not sufficient to satisfy the creditor's demand.
THIS was a writ of error brought by the plaintiffs to reverse a judgment recovered against them by the defendant in Granville County Court. John Brodic, the defendant, brought an action of trespass on the case against Mary Cardwell, executrix of Thomas Cardwell's will, and the said executrix failing to make any defense, Brodic took judgment by default, and damages were assessed upon a writ of inquiry. Afieri faciaswas sued out against the goods and chattels of Thomas Cardwell, deceased, in the hands of his executrix, the said Mary, which was returned by the sheriff to November Term, 1805, of (98) Granville County Court, having the sheriff's indorsement thereon "that no goods nor chattels of Thomas Cardwell were to be found." Brodic then sued out ascire faciasagainst the heirs at law and devisees of Thomas Cardwell, deceased, to show cause why he should not have judgment of execution for his debt and costs against the real estate of the said Thomas Cardwell, deceased, in the hands of the said heirs and devisees. Upon thisscire facias, judgment was rendered in favor of Brodic; and some time afterwards the said heirs and devisees brought a writ of error to reverse this judgment. They assigned for error, first, that it did not appear from the record and proceedings in the cause that the executrix, Mary Cardwell, had fully administered the estate of her testator, or that she had no assets, or not sufficient to satisfy the recovery of the defendant in error in the suit brought against her; second, that the jury did not find upon the trial of the said suit that the said executrix had fully administered, or had no assets or not sufficient to satisfy the recovery aforesaid. The defendant in error having pleaded that there was no error in the proceedings in the cause, etc., the case was sent to this Court for the opinion of the judges.
BY THE COURT.
The act of 1784, ch. 11, was passed to remove doubts "which were entertained whether the real estates of deceased debtors in the hands of their heirs or devisees should be subject to the payment of debts upon judgments obtainedPage 73against the executors or administrators, and to direct the mode of proceeding in such cases." It is declared in section 2 of this act, "that in all cases at law where the executors or administrators of any deceased person shall plead fully administered, no assets, or not sufficient to satisfy the plaintiff's demand, and such plea shall be found in favor of the defendant, the plaintiff may proceed to ascertain his demand and sign judgment; but before taking out execution against the real estate of the deceased debtor, a writ or writs ofscire faciasshall and may issue, summoning the respective heirs and devisees (99) of such deceased debtor to show cause why execution should not issue against the real estate for the amount of such judgment, or so much thereof as there may not be personal assets to discharge; and if judgment shall pass against the heirs or devisees, or any of them, execution shall and may issue against the real estate of the deceased debtor in the hands of such heirs or devisees against whom judgment shall be given as aforesaid." The Legislature intended that the real estates of deceased debtors should not be subject to the payment of their debts until the personal estate was exhausted; and the Court have no power to award execution against the real estate in the hands of the heirs or devisees until "it shall be found upon the plea of the executors or administrators that they have fully administered, have no assets, or not sufficient to satisfy the creditor's demand." The judgment, therefore, rendered against the plaintiffs in error was not rendered according to the mode of proceeding directed by the Legislature. It is erroneous, and must be reversed.