The appeal seems to have been intended to present for review the ruling as to the statutory obstruction in the way of reaching the descended lands of the deceased debtor after the lapse of so long an interval, and, strictly speaking, the correctness of the expressed opinion which led to the nonsuit is the sole matter presented for our decision. Confining ourselves to this single inquiry, we *Page 253 should feel little hesitancy in pronouncing the intimated intended ruling erroneous. The statute which is supposed to have that effect, after the lapse of seven years from the death of the debtor (Rev. Code, ch. 65, sec. 11) most manifestly applies to claims existing against the debtor in hislifetime, and a delay for the specified period in enforcing them by action. But when such action has been brought and the debt or demand reduced to judgment against the administrator, a new cause of action arises upon the judgment into which the original claim has merged, and this is governed by the provisions of the other enactments that bar an action, and there are none such under the law in force when the judgment was rendered, but the creditors' inaction for ten years without explanatory and rebutting evidence, raised a presumption that it has been satisfied. Johnston v.Jones, 87 N.C. 393; Mauney v. Holmes, ibid., 428.
The judgment being the foundation of the new action, whether the proceeding looks to a satisfaction to be made out of the personal or real estate, both of which came from the debtor and are alike liable to his creditors, the one after the exhaustion of the other, there was no statutory bar to its enforcement. Speer v. James, 94 N.C. 417; Smith v.Brown, 99 N.C. 377.
The cases of Syme v. Badger, 96 N.C. 197, and Andres v. Powell,97 N.C. 155, were determined on a construction of the act of the limitations established under the Code of Civil Procedure, and (299) have no application to that before us, which is controlled by the previous law.
It may facilitate the settlement of the controversy to make a suggestion that seems not to have occurred to the counsel at the trial, and appears in the transcript.
If there has been a devastavit, as the appellant contends, in the disposition of the funds that came into the administrator's hands, without paying the judgment debt in an amount sufficient to its discharge, the present action to subject the real estate cannot be maintained, for the personal estate must first be pursued and recovered, if it can be, and the administration bond be charged and made to pay for what may have been wasted, if it is solvent. This is decided in Bland v. Hartsoe, 65 N.C. 204;Latham v. Bell, 69 N.C. 135; Lilly v. Wooley, 94 N.C. 412. There is no intimation that the administrator is not personally able to make the debt good, and his surety to the administration bond also.
But this is met by the admission that all of the intestate's personalty "were lost by the results of the war, without negligence or default on the part of the said Beaman."
If this be so, inasmuch as the creditor declined to accept such moneys as the defendant Beaman had, and the loss of the estate in his hands was *Page 254 not in consequence of a want of fiduciary care in its preservation, and the slaves have ceased to be property, recourse would be left open for the creditor upon the land, for there would then be no such devastavit as rendered the administrator or his bond responsible for the loss. Hinton v.Whitehurst, reported in successive appeals in 71 N.C. 66; 73 N.C. 157;75 N.C. 178, and in 68 N.C. 316, more especially, where the subject is considered and the ruling made.
There is error, and must be a new trial, and so it is adjudged.
Error.
Cited: Smith v. Brown, 101 N.C. 351.
(300)