Neither the order of the Court requiring Daniel J. Donnell to appear and submit to an examination as to any property he might have, not subject to levy and sale under a fieri facias, nor his actual examination, and the disclosure by him, that he had an interest as distributee or otherwise in the estate of James M. Donnell, deceased, gave the plaintiff a lien upon that interest. It is provided by sec. 270 C. C. P. that such a lien shall be created by the appointment of a receiver, and by his filing a copy of the order with the Clerk of the Superior Court of the county where the judgment roll is filed. This was not done before the death of the judgment debtor, by which the action was abated so far at least, that no lien could thereafter be acquired before the death of the judgment debtor, it seems that then the property would go into the hands of the Receiver for the satisfaction of the plaintiff's debt, and the surplus if any would be payable to the administrator of the debtor. The reason why if the debtor dies before the property has become vested in a Receiver as a trustee for the plaintiff's debt, no proceedings can be subsequently taken by which the plaintiff can obtain a lien or priority over other creditors, is, that the act of Assembly fixes unchangeably the distribution of the assets among the several classes of creditors at the death of the intestate. No diligence can change it. This principal governed us in the cases of Tate v. Morehead,65 N.C. 681, and Carson v. Oates, 64 N.C. 115.
We think his Honor erred in requiring the defendant as administrator of Daniel Donnell to pay over his estate to the Receiver.
PER CURIAM. Judgment reversed, and judgment that the defendant go without day. *Page 427