1. That an executor is not chargeable with choses in action, until he has received the money or been guilty of laches, (2 Williams on Ex'rs., 1022-3; Jenkins et ux. v. Plume, 1 Salk., 207; Norden v. Levit, 2 Lev., 189; Ram. on Assets, 503.)
2. If executor sells personal property on a credit, and takes bonds according to our statute, and is sued and pleads plene administravit and no assets — after the sale, and before the bonds are due, he is not guilty of devastavit, and the plaintiff cannot recover. (Rev. Stat., chap. 46, sec. 11; Gregory v. Hooker's Adm'r, 4 N.C. 215; Eure v. Eure,14 N.C. 206.) 1. That time was too long before the sale of slaves; testator died before or early in October, 1848, and the defendant then, as executor, sold the perishable property in October. The County Court of Brunswick sat on the first Monday in December, when he might have obtained an order for sale of slaves; and had he done so, the sale notes would have been due before defendant pleaded; but he chose to wait till March, 1849.
2. Besides, the act of Assembly gives him nine months in which to plead, and if from any accident he finds that insufficient, the court will grant him longer time.
3. The judge was right in holding that none of the defendant's pleas were sustained; for the only plea to which the evidence applied, was the plea of plene administravit. Now that plea denies that the defendant has any assets, or ever had since the death of his intestate, which has not been administered. (2 Saunders Plead. and Evi., 10, 511.) *Page 206
4. But the act of Assembly (Rev. Stat., chap. 46, sec. 11), authorizes the sale and exempts him from liability thereupon, until the time at which the notes become due, when the fund on scire facias shall be bound for judgments previously rendered. But this must be shown by plea (Gregory v.Hooker's Adm'r, 4 N.C. 215); otherwise how is the court to know that the sale has been made? and how can the plaintiff know whether he ought to take issue, or admit the defendant's plea, and take his judgment quando? In September, 1848, the testator died, leaving the defendant his executor. In October, 1848, the defendant sold perishable property to the amount of six hundred dollars (before he qualified). He proved the will and qualified in December, 1848, and sold land to the amount of six hundred dollars in January, 1849, under a power given by the will. In March, 1849, he obtained an order of the county court to sell the slaves, and made a sale of the slaves on the 31st of that month, upon a credit of six months. The plaintiff commenced his action in May, 1849. The defendant took time to plead under the statute, and in September, 1849, he pleaded, "fully administered generally and specially — no assets — former judgments — debts of higher dignity — and no assets, ultra" — and the question was, whether the issue upon his pleas should be found against him, because of the notes which he held for the proceeds of sales of the slaves, which were not due at the time of the plea pleaded; and whether the plaintiff was entitled to more than a judgment quando. His Honor was of opinion "that whatever might have been the consequence, if the defendant had pleaded specially the sale of the slaves on credit under the act of Assembly, that none of his pleas were sustained by the facts."
There is error (Revised Statutes, chap. 46, sec. 11), "where the estate of a deceased person shall be so far indebted that the debts cannot be discharged by the money on hand, or by the sale of the perishable commodities," the executor is to obtain an order of the county court and sell the slaves on a credit of six months, taking bond and security; and the money, "when received shall be liable for the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to hand." The executor is required to sell on a credit, and the right of a creditor to charge him with the value of the slaves, as assets in hand, is excluded by the provision that the amount of the sale notes, when received, shall be liable to judgments quando, previously entered.
How far a question would be varied, if an executor was guilty of laches in not selling the slaves in a reasonable time, is a matter not now *Page 207 before us; for in this case there was no laches — the executor obtained the order of sale at the first court after he qualified, and sold as soon thereafter as he could make advertisement. (214)
We can see no necessity for a "special plea," because the statute evidently intends that the sale notes shall not be considered assets until they are collected, unless the executor or administrator is guilty oflaches in not collecting; and the issue is tendered by the plea of "no assets in hand, or debts of higher dignity, and no assets ultra," whereupon the plaintiff may join issue, or may take a judgment when assets come to hand — which he ought to have done in this case.
PER CURIAM.
Judgment reversed, and venire de novo awarded.