The jury having found that the defendant James R. Davenport was a "purchaser for a valuable consideration and without knowledge of any fraud" on the part of E. N. Hatton, of the lands described in the petition, the Court properly refused judgment to compel the administratrix of E. N. Hatton to sell the land to make assets. Proviso to Code, sec. 1446; Paschalv. Harris, 74 N.C. 335; Heck v. Williams, 79 N.C. 437; Egerton v.Jones, 107 N.C. at page 290; McCaskill v. Graham, 121 N.C. 190. The reason is that in such case the purchaser has gotten a valid title to whatever interest the vendor had (Savage v. Knight, 92 N.C. 493, 53 Am.Rep., 423), and there is nothing which his personal representative can sell. Such sale by E. N. Hatton, it is true, could not impair whatever lien his judgment creditor had by virtue of his prior docketed judgment, but the creditor must proceed to enforce that lien by some direct proceedings on his part. Upon the issues found, E. N. Hatton had no interest in the land, and the Judge properly refused to order the administratrix to sell for assets E. N. Hatton's interest in the land, since, after the execution of his conveyance, he had no interest left which could have passed to his heirs-at-law, and hence nothing to be turned into assets by his administratrix. If the issue had been found the other way, the judgment would have been different, of course. Paschall v. Harris, supra, is exactly "on all-fours." Murchison v. Williams. 71 N.C. 135, presents an entirely different state of facts. There the property subject to the lien of the docketed judgment descended to the judgment debtor's heirs-at-law, who had a right to have the personalty applied first, and the administrator had the right to sell the land for assets, if necessary, and discharge the judgment. Here, there is only $50. 00 personalty, and, by reason of E. N. Hatton's conveyance, no interest in the realty descended to the heirs-at-law. Hence, there is nothing which can be sold *Page 148 by the administratrix to make assets. What the creditor must seek to enforce is a sale of the realty by virtue of his judgment lien, and not to apply E. N. Hatton's interest therein to his debt. If by the lapse of time plaintiff's judgment lien had been lost, the benefit would have accrued to Hatton's vendee and not to Hatton's heirs-at-law.
In this proceeding, though begun before the Clerk, the purchaser, as well as the administratrix and heirs-at-law, are parties, and judgment should have been rendered directing a sale of the property under the judgment lien. Code, sec. 255, as amended by the Laws of 1887, Chap. 276;Roseman v. Roseman, 127 N.C. 494; Faison v. Williams, 121 N.C. 152, and other cases cited in Clark's Code (3d Ed. ), page 267. All the parties being before the Court, there is no reason to compel the bringing of a new action, but the plaintiff should have any relief his allegations and proofs entitle him to, whether prayed for or not. Clark's Code (3d Ed. ), page 200.
In refusing the prayer of the petition, there was no error, but there was error in dismissing the action. The cause is remanded for proper judgment. The judgment below as to costs is affirmed, and the costs of the appeal will be divided. Code, sec. 527.
Remanded for judgment. *Page 149