Opinion · Nclaw North Carolina
CARRIER v. HAMPTON, 35 N.C. 436 (1852)
HARVEY D. CARRIER v. ADAM HAMPTON., 35 N.C. 436 (N.C. 1852)
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1852-01-01
- Topic
- general
CARRIER v. HAMPTON, 35 N.C. 436 (1852) HARVEY D. CARRIER v. ADAM HAMPTON.Supreme Court of North Carolina (August Term, 1852.) 1. On the trial of a collateral issue between the administrator and heirs, as to assets, in a suit by a creditor, one of the heirs is an incompetent witness for the administrator, though he may have released to him all his interest in the personal estate, and also an amount supposed to be the value of the real assets descended to him. 2.
Citator
UpLaw has not yet analyzed CARRIER v. HAMPTON, 35 N.C. 436 (1852). The absence of a flag is not a finding that it is good law.
CARRIERv. HAMPTON,35 N.C. 436(1852)
HARVEY D. CARRIER v. ADAM HAMPTON.
Supreme Court of North Carolina
(August Term, 1852.)
2. In such a proceeding bysci. fa. any one of the heirs can tender the issue, and, if found against the administrator, the creditor would have execution against him for the sum found in his hands, which would necessarily operate to the exonerationpro tantoof all the real estate descended.
See same case,33 N.C. 307.
The Court is of opinion that, in respect of the realty in this State, the case is not varied by the new facts from what it was before. These two persons have precluded themselves from making up an issue with the administrator, but they cannot control the defendant and the other heirs in that respect, and it seems clear that any one of them could tender the issue, and if found against the administrator, the creditor would have execution against him for the sum found in his hands, which would necessarily operate to the exonerationpro tantoof all the real estate descended. That one of the heirs could make up the issue is apparent from the consideration that most frequently the personal representative is also an heir and devisee, and no particular provision is made for that case, and yet the constant course has been to proceed in such cases at law, and without resorting to the court of equity. The witnesses were liable for the want of personal estate to the (438) creditors for the value of the estate reserved by their father in the lands sold by him, which,prima facieat least, is to be taken as not less than the price got for it, and at all events is something.
From that liability they may be relieved by some of the heirs compelling the creditors to resort to the personal fund, and these witnesses still have an indirect interest in the personalty, notwithstanding their release to the plaintiff. It is said, however, that they have discharged themselves from liability to the creditors by divesting themselves of the money received by them for the land. But assuming that to be the value, this position is not correct, as the money has not been paid to a creditor, and does not belong to any one or all of them, and the deposit with the clerk or any other person for the use of the creditors could not be pleaded by these persons in bar to thescire facias, but they remain just as much liable now as they would be if they had thrown the money away. As that is so, it is useless to consider how far their competency might be affected by the possible liability at law in Tennessee of the lands in that State, or the personal liability in equity of the witnesses in this State, or in Tennessee in respect of those lands.
PER CURIAM.Venire de novo.
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