The opinion of the Court was delivered by
Moses, C. J.It is not to be denied that, following the decision in D'Urphey vs. Nelson, 1 Brev., 476, also found in note, 4 McC., 129, and Martin vs. Latta, 4 McC., 128, the Courts of this State hold that the lands of a deceased are assets liable to be taken in execution on ft. fa. issued on a judgment recovered against his personal representatives.
The creditors of the intestate, Taplow Harris, do not, however, claim the benefit of the rule laid down in the cases above referred •to. If they regarded their debts, proved before the Commissioner, thenceforward holding rank as judgments against the estate, what prevents them from issuing their executions, and subjecting the land to sale under them ? If they thus have a medium through which they can enforce their “ established demands ” to satisfaction, why seek the aid of the Court of Equity to subject the real estate of the intestate to their payment ? Their prayer, that the land may be made liable by the decree of the Court, concedes that, as against the heirs, they do not hold the more favored position of a general creditor by judgment. They do not assume that they have any such lien, for, if they had, they would have applied to the Court for its process of execution to enforce it. So far, however, from this, they seek the aid of equity jurisdiction to require that the heirs at law shall be called in, an account taken of the real assets descended, and their application directed to the satisfaction of the debts.
It is proper, first, to inquire as to the effect of the order of the Court establishing their demands as simple contract debts against the estate of Harris. What consequence is to follow the right thus acquired, either as binding on the administrators or the heirs?
The decree was based on an order quod computet. It was necessary to ascertain the amount of the estate in the hands of the administrator, so that, if not sufficient to satisfy all the claims presented, a pro rata payment might be ordered. The judgment against Swindler, as survivor of Swindler and Harris, on the copart-nership debt, created no lien against the estate of Harris. It merely merged the simple contract debt, so that a remedy on it could not be enforced at law against his administrator.
If the rule which prevails in equity on bills for marshalling assets had been strictly carried out, the amount found due by the administrator on the account taken should have been *198brought into Court, and the several creditors paid by the Commissioner.
This not being done, the pro rata amount for each creditor remained in the hands of the administrator, and the several debts, to the extent of the fund, stood established as a liability against him. The assets were left with him for distribution, and the non-payment would establish a devastavit. They, were specifically appropriated by the Court, and the decree on the debt was analogous to a judgment at law against the administrator of assets qwando oeeiderent on a plea ofplene administravit prceter. What liability'-, then, was imposed on the heirs at laws ?
It is claimed by the plaintiffs, on the ground that the personal estate of the intestate being exhausted, the realty in their hands must respond for the deficiency.
The general proposition is not controverted, but the difficulty the plaintiffs encounter is, to apply it to the case in hand.
The demand was established as a simple contract debt. If by the decretal order it acquired any higher rank, as against the administrator, it was not converted into a judgment of the Court so as to affect the heirs who were not parties to it.
The statute of George II does make descended lands in the possession of the heirs liable for the payment of the debts of the ancestor ; but the cause of action must be established against them in a suit to which they are parties, and they are not bound by a judgment against the administrator, to which they are neither parties or privies. — Bird vs. Houze, Speer’s Eq., 250; Vernon & Co. vs. Valk et ux., 2 Hill Ch., 257; Drayton vs. Marshall, Rice Eq., 387.
Whatever may be the character of the demands in the equity suit, and whatever place they may hold against the administrator in relation to the estate of the intestate, they stand but as simple contract debts against the heirs. These were not parties to the bill, and its whole aspect is inconsistent with any pretense that they are bound by it, because of real assets descended.
In the language of Chancellor Dunkin, in Bird vs. Houze, “ the cause of action must bo established against the heir, and he is not bound by the judgment against the executor or administrator.”
Even if the cause of action was so established as to conclude the heir from averring against it in the proceedings before the Court, it has acquired, in reference to him, no higher grade than it occupied in relation to the testator at his death, as a simple contract, *199and it is therefore barred by the statute of limitations, as against the heir.
Although the’Court of Equity does not assume to try the title to land, yet, incidental to its jurisdiction, when relief is there sought against the party in possession, it must determine whether the character of the possession is of a kind which allows it to be affected or disturbed by its decree. Here the heirs at law of Harris have been in the undisturbed use and occupation of the real estate, by themselves and tenants, exercising acts of ownership since his death, in 1844, and no sufficient equity has been shown which should act directly upon their legal rights, by subjecting them to the claim of creditors, who, to say n© more, have been guilty of a laches which prevents any interference on their behalf.
The motion is dismissed, and the decree of the Chancellor affirmed.
Willard, A. J., concurred.