Motion to vacate a judgment rendered upon a scire facias, to charge real estate and to set aside an execution issuing thereon, under which a sale has been made.
The facts as they appeared before the court were these:
John Newsom became the guardian of his three children, Charity, Penelope, and Sarah, and after receiving personal effects of his wards, died intestate, seized of a tract of land which descended to those three children and eight others whom he left surviving him. One Theophilus T. Sims administered on the estate of John Newsom, (382) and a petition was filed against him by Charity, Penelope, and Sarah Newsom, by their succeeding guardian and prochein ami, William Barnes, for an account and payment of the moneys received for them by *Page 284 their late father and former guardian. The administrator put in his answer, and therein denied that he had assets of the intestate. Upon his hearing a reference was made to the clerk to take the accounts involved in the cause, and he found that the sum of $1,945.94 was due to the petitioners for a legacy to them, which their late guardian had received, and that the defendant Sims had fully administered all the assets left by his intestate, and had no assets to pay any part of the sum so reported to be due to the plaintiffs. The report was confirmed and a decree made that the plaintiffs recover the said sum and the costs of suit out of the real estate of the defendant John Newsom that descended to his heirs at law. Thereupon a scire facias, was sued out on the decree in the name of Charity, Penelope, and Sarah Newsom as plaintiffs against the said Charity, Penelope, and Sarah, and their eight brothers, and sisters,. naming them (infants), which recited that the plaintiffs had recovered against the administrator, T. T. Sims, the sum of $1,945.94, and the further sum of $15.85 for costs, whereof the said T. T. Sims, administrator was aforesaid, is convicted as appears of record, and also recites "that it was suggested by the said defendant T. T. Sims, administrator as aforesaid, that he had fully administered, so that execution of the debt and costs could not be had against the personal estate that was of the said John Newsom, lately deceased, and that it was also suggested that the said John Newsom died seized of lands sufficient to satisfy the said sums of money which descended to the said Charity; Penelope, and Sarah, and the eight other children (who are named), and that the said Charity, Penelope, and Sarah Newsom, by their next friend, William Barnes, had solicited some fit remedy in this behalf"; and thereupon it commands the sheriff to make known to the said heirs at law, to appear, etc., to show cause, etc., wherefore the said plaintiffs should not (383) have execution of the said debt and costs against the aforesaid real estate descended as aforesaid, etc.
The scire facias, was made known and returned and "judgment was entered according to scire facias, for $1,945.94, with interest from 20 August, 1840, until paid." Thereupon an execution was issued, returnable to February Term, 1842, which begins by reciting that "whereas William Barnes, guardian, to the use of Lary Newsom, lately in our court, etc., recovered against Theophilus T. Sims, administrator of John Newsom, deceased, the sum of, etc., and it being suggested that the said administrator had fully administered and had no assets, so that execution could not be had of the personal estate of the said John, deceased; and whereas a writ of scirefacias, did issue from, our said court, commanding the said sheriff to make known to Charity Newsom, Penelope Newsom, Sarah Newsom (and the eight others named), heirs at law of the said John Newsom, deceased, that they should appear, etc., and show *Page 285 cause wherefore William Barnes, guardian, should not have execution against the lands of the said deceased to satisfy the said judgment and costs, which said writ was duly returned, made known; and whereas the said heirs failed to appear and show cause as aforesaid, and judgment having been given against the said heirs: These are, therefore, to command you that of the lands and tenements of the said John Newsom, deceased, you cause to be made the aforesaid sums of, etc., and have you the said moneys, before, etc., then and there to render to the said..... his debt and costs aforesaid. Herein," etc.
Under the foregoing process the sheriff sold the land that descended from John Newsom to all his children, and it was purchased, at a price which satisfied the debt and interest, by one Lary Newsom, who claimed to be the assignee of the judgment, and the sheriff returned the execution satisfied thereby.
At February Term, 1842, a rule was obtained on William Barnes and Lary Newsom to show cause why the execution should not be set aside and the judgment vacated, which at the next term was made absolute; and thereupon Lary Newsom was ordered, upon pain of attachment, to pay immediately to the defendants in the execution the said sum for which the land sold. From that order Lary Newsom appealed (384) to the Superior Court.
In the Superior Court, in support of the motion to vacate the judgment and set aside the execution, it was insisted:
(1) That the defendants in the scire facias, being infants, should have appeared by guardian, whereas the judgment was rendered by default, or upon plea by an attorney, they having no guardian.
(2) That the whole proceedings were irregular and void inasmuch as the plaintiffs Penelope, Charity, and Sarah were also defendants and sued themselves.
(3) That the sci. fa. proceeding was irregular and void, being based upon a decree of the county court, acting as a court of equity, and because it does not set forth that it had been proved that the administrator had fully administered, but merely that he so suggested.
It was insisted in support of the motion to set aside the execution:
(1) That it is irregular and void, being issued before the expiration of one year.
(2) That the execution does not conform to the judgment, as it directs a sale of the land of John Newsom, instead of the lands of John Newsom in the hands of his heirs.
In opposition to these motions, it was contended that although the proceedings be informal and erroneous, still they were not void and of no effect, and could not be set aside in this summary way, but only by writ of error. *Page 286
Upon the first question, his Honor was of opinion that a judgment against an infant by default or upon appearance and plea by attorney, although voidable, was not void, for if void, either party might treat it as a nullity, whereas the infant alone is permitted to complain, and this by writ of error.
Upon the second question, the court was of opinion that the proceeding by sci. fa. being the only remedy for a creditor to subject real estate, it was not irregular for one of the heirs, being a creditor, to issue the proceedings against himself and the other heirs. The debt had been established in the suit against the administrator. This was an application to charge the real estate. If it was suggested that the administrator (385) had not fully administered, then the administrator was brought in as a party on one side, all the heirs being parties on the other, and all equally entitled to a portion of the real estate, and to charge the administrator.
Upon the third question, his Honor was of opinion that a decree or judgment against the administrator in the county court, although entered upon petition and the proceedings thereon, as provided by act of Assembly giving the court jurisdiction in cases of filial portions, etc., and not by suit on the guardian bond, was still the judgment of the court of law, and the remedy by sci. fa. was not irregular and void. His Honor was also of opinion that as the scire facias recited the judgment against the administrator and stated the fact that execution of the debt and costs could not be had out of the personal estate, the omission to state that, upon a reference to the clerk, the fact of fully administered had been established, although it rendered the proceeding informal, yet it did not make it void. For these reasons his Honor refused the motion to vacate the judgment.
Upon the first question, in relation to the execution, his Honor was of opinion that execution could properly issue when one of the heirs was of full age within the twelve months. Upon the other question, he was of opinion that although the execution was informal in directing a sale of there lands of John Newsom, deceased, and perhaps the sheriff might have been justified in returning that John Newsom had no lands, yet from the whole execution it was clear that the lands mentioned were the lands of John Newsom in the hands of his heirs, and that this informality did not render the execution void. The two motions were therefore refused, and the plaintiffs appealed to the Supreme Court. The opinion of this Court is that the execution must be set aside, if for no other reason, because there is no judgment, regular *Page 287 or irregular, voidable or void, to support it. At the end of this instrument, which purports to be a scire facias, the sheriff is commanded to render the money to no person, the name of the plaintiff being left blank. But if it be filled up with the name of William Barnes, who is stated in the recitals of the writ to have recovered the judgment, it will not mend the matter, for the suit was brought, as it ought to (388) have been, in the names of the claimants, Charity, Penelope, and Sarah Newsom, and not in that of Barnes. The execution was therefore not warranted, even in form, by a judgment, and was inoperative and properly set aside. Our opinion is, likewise, that the judgment on the scire facias was incongruous and null and within the principle of Whitley v. Black,9 N.C. 179, and other cases of that nature, should be vacated by the court that rendered it.
We do not find this opinion on the ground that a scire facias was an improper proceeding for a creditor who wishes to pursue the real estate for the satisfaction of a sum of money due by decree of a court of equity or a court of law on a petition which is in the nature of a suit in equity, but upon the ground that a suit and judgment in which the same person is plaintiff and defendant, or one of the plaintiffs and defendants, is an absurdity and can have no legal efficacy. It is true that we are clearly of opinion, as was held in Jeffreys v. Yarborough, 16 N.C. 506, that upon a decree or declaration by a court of equity, that the estate of the deceased was indebted to the plaintiff in a certain sum, and that the executor had no assets, any other person, whether donee, legatee, devisee, or heir, must be brought in by supplemental bill, and that the scire facias is given upon judgments at law only in certain prescribed cases. And we likewise find it held in numerous cases by our predecessors that petitions for legacies, filial portions, and distributive shares, are proceedings according to the course of equity, and not law. Defense is made by answer and plea on oath. A court of equity cannot enjoin a decree upon petition, because the court which gave the decree has the same jurisdiction to reexamine upon a petition to rehear, or to review for error of law or fact or for surprise. Holding v. Holding, 1 N.C. 635. The assignee of a distributive share may sue for it by petition in his own name as he can in a court of equity. Wright v. Lowe, 6 N.C. 354. So, evidence is taken by commission in depositions and not vivavoce, as in cases at law. Ryden v. Jones, 10 N.C. 24. These (389) instances are sufficient to show the nature of the jurisdiction, though there are many others to the same effect. We are not, however called on to say how, in ordinary cases, plaintiffs in petition, to whom money may be found due, and who cannot get it out of a personal estate, should proceed against the real estate. And, although we might be of *Page 288 opinion that a scire facias was not the appropriate proceeding, yet, if this were an ordinary case of one person being the creditor and another the debtor, we should hold that a judgment on the scire facias was not void, as the objection was not to the jurisdiction of the court, but only to the process, which the party waived by not taking. White v. Albertson,12 N.C. 242. But, supposing in this case the process in due form and all the proceedings to be otherwise regular — and it is in that point of view that we look at it — yet the judgment is inconsistent and senseless in being at once for and against the same persons. Upon that ground we think it must be vacated. If authority were needed for so plain a position, it may be easily found. Pearson v. Nesbit, 12 N.C. 315, is in point and states the reasons as convincingly as can be. It is true that was a writ of error, which might be necessary there to enable the other side to take issue on the identity of the persons of the same name on opposite sides of the suit. Here the identity of the three plaintiffs with three of the defendants, the children of the intestate, is set forth in the record, and does not admit denial. In such a case the reasoning inPearson v. Nesbit is completely applicable as showing that where the same person is the creditor and debtor the debt is extinguished, and, therefore, upon the face of the judgment, as soon as it was pronounced, the debt therein recovered was gone. Consequently, the court should purge their records of such absurdity. So, in Justices v. Shannonhouse, 13 N.C. 6, and several other cases of the like kind, where an obligor was also one of those to whom, as a class of persons a bond was payable, it was, upon non est factum, held not to be a deed. For the like cause, this (390) judgment must be a nullity. But it was urged in the argument that, upon a judgment ascertaining the debt in favor of one who is an heir, among several, of the debtor, a joint sci. fa. must go, because it was said no other remedy was given for the creditor, and every heir ought to be compelled to contribute by the process of execution going against all the land descended. It is true, the statute gives no other remedy at law but by scire facias on the judgment in the suit against the personal representative. But in giving that, the creditor and the heir are supposed to be different persons, as much as that the creditor and administrator are so. The act of 1784 made no provision for the cases in which the personal representative is a creditor, or in which one of the heirs is a creditor. But because the administrator had no other remedy at law for a simple contract, and could not proceed by scire facias against the heir but after a judgment against himself, it was not held that the Legislature meant the absurdity that the administrator should sue himself to ascertain his debt and then proceed on the judgment by sci. fa. against the heir. On the contrary, as a matter of course, he could have *Page 289 no legal remedy for a simple contract debt in such a case, but would be compelled to apply to a court of equity for relief, upon the ground that he had a subsisting debt and no other remedy for it. Therefore, on the express ground that the administrator and executor could in no mode recover their debts against the heirs under the act of 1784, the acts of 1799 and 1806 gave the cheap and expeditious remedy at law by petition. But the case of an heir being the creditor remains as it was from the first; and, therefore, like the executor, before the amendment in his favor, the heir, from necessity, cannot proceed at law. His case is now as that of one of two copartners was at common law, when one of them held the ancestor's bond, in which he bound his heirs; and that case was like that of one of two executors who was a creditor of the testator, who cannot sue his coexecutor either alone or jointly with himself. The remedy in either case is in equity, because the creditor cannot (391) sue at law, but has a right to satisfaction out of the fund. And to expel an inference that the act restrained the creditor in such case to the legal remedy given by the statute, it is expressly provided (Rev. St., chap. 43, sec. 6) that the creditor's remedy, or rule of decision, in equity, shall not be affected by any provision of the act. That is the proper remedy, because the value of each share descended or devised may be conveniently ascertained and the debt duly appropriated; whereas, upon a joint judgment at law, if so absurd a thing can be supposed, the creditor could raise his whole debt from one of the heirs, although he himself ought to contribute. Therefore, this case of an heir being a creditor can be no exception to the rule, which arises out of the nature of things, that the same person cannot be plaintiff and defendant in an action at law.
Our opinion then, is, that the county court was right in vacating the judgment and quashing the scire facias, and in setting aside the execution.
But when that had been done, that court should have stopped. It erred in ordering Lary Newsom to pay to the heirs, including the three (who were the plaintiffs), the sum he had bid for the land. By setting aside the judgment and execution as void, the sale by the sheriff necessarily falls through, and the land still belongs to the heirs. They cannot keep the land and have the money, too.
The result is, that the decision in the Superior Court must be reversed, with costs in this Court, and that the case must be remanded to that court, with instructions to reverse, with costs in that court, so much of the order of the county court as required Lary Newsom to pay the sum of $2,113.33, or any part thereof, and to affirm so much of the order of the county court as went to set aside the execution and sale thereunder, and vacate the judgment rendered on the scire facias in the record *Page 290 set forth, and to issue a writ of precedendo to the county court accordingly.
PER CURIAM. Reversed and remanded.
Cited: Roberson v. Woollard, 28 N.C. 94; Newsom v. Newsom, 40 N.C. 123.
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