There was an appeal from an order overruling a demurrer. The complaint, demurrer and judgment are as follows:
The plaintiff alleges —
1. That on 31 December, 1878, W. A. Lemlie obtained and had docketed in the Superior Court of Person County a judgment against N. N. Tuck and W. H. Winstead for $3,206.66, and the plaintiff Ida T. Tuck became the assignee thereof for value, which said judgment is due and unpaid. W. H. Winstead died on the .... day of ........., and ....... was appointed his administrator.
2. That on 8 July, 1879, the said W. H. Winstead purchased of Jesse Chambers, commissioner of the Probate Court of Person County, a certain lot of land in the town of Roxboro, in said county, as will appear from the deed, which is duly recorded on page 363, Book Y, of the records in the office of the register of deeds for said county.
3. That on 23 September, 1879, the said W. H. Winstead conveyed said lot of land to the said Jesse Chambers, the deed to which is recorded on page 368, Book Y, in office of said register of deeds.
4. That on 18 July, 1881, the said Jesse Chambers conveyed, by deed, said land to John G. Chambers, which deed is recorded on page 361 in Book Z, in office of said register of deeds.
5. That on 8 May, 1882, the said John G. Chambers conveyed said land to John R. Chambers by deed, which is recorded on page 258 of Book Z, in office of register of deeds.
6. That on 1 July, 1886, the said John R. Chambers conveyed (287) an undivided half interest in said land to J. I. Brooks, which is recorded in Book C C in the office of register of deeds.
7. That on 4 January, 1886, said John R. Chambers and J. I. Brooks conveyed said land to the defendant Jesse D. Walker, by deed, which is recorded on page 500, Book C C, in office of said register of deeds.
8. That said Jesse Chambers, and all parties claiming said land under him, had due notice of the docketing of said judgment as foresaid.
9. That said W. H. Winstead, at the time of the docketing and conveying said land as aforesaid, was indebted in an amount exceeding his ability to pay, and the attempted transfer to said Jesse D. Chambers, *Page 239 and those claiming under him, was in fraud of the rights of this plaintiff and those under whom she claims.
Wherefore, plaintiff demands judgment: (1) that said transfer of land to Jesse D. Chambers be declared null and void, and the deeds be delivered up to be canceled; (2) that some discreet person be appointed commissioner of this court to sell lands and apply the proceeds to the payment of the judgment aforesaid; and (3) for the costs of this action, to be taxed by the clerk.
DEMURRER.
In this action, the defendant, having obtained leave to withdraw his answer, now demurs to the complaint filed, on the ground that only the administrator of W. H. Winstead could maintain an action to sell the lands of W. H. Winstead, and if the judgment of said plaintiff be a lien thereon, the same can be enforced in the application of the proceeds of said sale, and that the plaintiff has no right, as a creditor of said estate, to maintain this action.
JUDGMENT. (288)
This cause coming on to be heard by demurrer, filed by defendant, after hearing argument on same in behalf of each party, upon motion of J. S. Merritt and Graham Winston, attorneys for plaintiff, it is ordered that the demurrer be overruled, and it is further ordered that defendant have leave to file an answer herein. When it becomes necessary to sell the real estate of a decedent to make assets, The Code, sec. 1446 provides, in explicit terms, that the court may decree a sale of "all real estate that deceased may have conveyed with intent to defraud his creditors, and all rights of entry and rights of action, and all other rights and interests in lands, tenements or hereditaments, which he might devise, or by law would descend to his heirs," and the language has been so construed by this Court. Mannix v.Ihrie, 76 N.C. 299; Heck v. Williams, 79 N.C. 437.
It is well settled that, though there may be unsatisfied judgments constituting a lien upon the land of a debtor, when he dies the judgment creditor is not allowed to sell it under execution, but the administration of the whole estate is placed in the hands of the personal representative, who is required first to apply the personal assets in payment of the *Page 240 debts, and if they prove insufficient, then the statute prescribes how the land may be subjected and sold so as to avoid a needless sacrifice by selling any of it for cash, or a greater quantity at all than is required to discharge the indebtedness. The Code, secs. 1436 to 1446; Sawyers v.Sawyers, 93 N.C. 325; Mauney v. Holmes, 87 N.C. 428;Lee v. Eure, 82 N.C. 428; Williams v. Weaver,94 N.C. 134.
We conclude, therefore, that this action cannot be maintained (289) except by the personal representative of W. H. Winstead, or by making him a party, if he refuse to discharge the debt out of the personal assets, or to institute a proceeding to have the land sold to satisfy it. Wilson v. Pearson, 102 N.C. 290.
There is error. Judgment reversed.
Cited: Holden v. Strickland, 116 N.C. 190; Hobbs v. Cashwell,152 N.C. 190.