FIERI FACIAS AS TO LANDS. Heirs can not be sued at law. Non-age of heir not to suspend remedy. 1.ands liable, if party dies in execu tion, &c. cestor, testator, or person deceased, was seized at the time the same real estate became liable, or at any time afterwards, or at the time of the death of such ancestor, testator, or other deceased person, as the case may require, unless such heir, devisee, or ter-tenant shall have made his own estate liable to such judgment."46 The revised statutes, however, have provided, that the heirs of a person, who are liable for his debts, on account of lands descended to them, shall not be sued at law, but in equity: And this provision is extended to devisees also.48 It is provided, that " if a party die after judgment rendered against him, but before execution issued thereon, the remedy on such judgment shall not be suspended by reason of the non-age of any heir of such party; but no execution shall issue on any such judgment, until the expiration of one year after the death of the party against whom the same was reпdered."49 It is provided, that "if any person taken in execution against his body, shall die while so charged, new executions may be issued against the goods, chattels, lands, and tenements of the deceased, in the same manner as if he had never been charged unless sold, in execution."50 "But such new executions shall not be levied upon any real estate which the deceased, after the judgment rendered against him, shall have sold in good faith."101"Nor shall such new executions be levied upon any real estate which shall have been actually sold under any other prior or subsequent judgment against the person so dying in execution."'5 Lien of the judgment. As it is the judgment and not the execution which binds the real estate, it was necessary, in giving a view of the effect of judgments as a lien, to anticipate many remarks, which apply as well to the subject of executions. We have noticed in par AS TO LANDS ticular, how far equitable, or trust estates, are subject to execu- PIERI FACIAS tion at law, and the provisions of the revised statutes in this respect;52 that an equity of redemption in lands may be levied on, that although resulting trusts in favour of persons paying purchase money for lands, are abolished; yet, if a fraudulent intent is not disproved, a trust results in favour of such persons' creditors 54 and we have also noticed the cases in which judgments and mortgages are entitled to a preference or priority.55 the hands of Where lands were sold under an execution, for more than Surplus in enough to satisfy it, leaving a surplus in the hands of the sheriff, the sheriff. and previously to the sale a second judgment was recovered, and, on the day of sale, while the monies remained in his hands, execution, under the latter, was delivered to the sheriff, but the debtor had given an order upon the sheriff to a bond creditor, before the recovery of the second judgment, for the payment of the surplus monies to him, which order, however, was not presented until immediately after the sale; the court held, that the surplus monies should be paid over to the junior judgment creditor.56 to for a debt secured by mortgage, cannot be on mortgage property, but must be The statutes provide, that "when a judgment shall be re- Execution covered for a debt secured by mortgage of real estate, or for any part of such debt, it shall not be lawful for the sheriff sell the equity of redemption of the mortgagor, his heirs or assigns, in such estate, by virtue of any execution upon such judgment."57"Whenever any execution against the property endorsed, of the defendant, shall be issued upon such judgment, the c plaintiff's attorney shall endorse a brief description of the premises mortgaged, referring to the page and book of the record in which such mortgage is recorded, with a direction to the sheriff not to levy such execution upon the said premises, or AS TO LANDS. 9158 FIERI FACIAS any part thereof." "If such execution shall not be collected of the other property of the defendant, the sheriff shall return the same unsatisfied, in whole or in part, as the case may be."59 A naked claim with sion cannot A naked claim to be the owner of a lot, unaccompanied by out posses- possession, does not constitute a right, title, or interest which be levied on; can be sold by execution; and, where a sheriff's sale was had, by virtue of a judgment and execution against a person making such claim, it was held, that no title passed to the purchaser, and that the defendant in the execution, subsequently entering into possession of the premises sold, could not be evicted in an action of ejectment founded on such sale. A title acquired by the defendant in the execution subsequent to the sale, does not enure to the benefit of the purchaser.60 nor can lands con only, Respecting lands which have been contracted for, but not tracted for, conveyed, the statutes provide, that "the interest of any person holding a contract for the purchase of lands, shall not be bound by the docketing of any judgment or decree, nor be sold by execution upon any such judgment or decree; but whenever an execution against the property of such person, shall have been issued, on a judgment or decree, and shall have been returned unsatisfied, in whole, or in part, the party suing out such execution, may file a bill in chancery against such defendant, and the party bound to perform such contract, to prevent the transfer of such contract, and to obtain satisfaction of the sum remaining due on such judgment or decree, out of the interest of the defendant in the said contract.' 9961 but a bill must be filed in equity. "The interest of the defendant in such contract, may be sold under the decree of the court, or transferred to the complainant, in such manner, and upon such terms as the court shall deem most conducive to the interests of the parties; and the court shall have power, in such suit, to decree a specific performance of such contract, either in favour of the complain 58 Ib. s. 32. 59 Ib. s. 33. 60 1 Wend. Rep. 502. ant or in favour of the purchaser, if the interest in the con- FIERI FACIAS tract shall be directed to be sold."62 "The value of the interest of the defendant holding such contract, shall be ascertained by the court, and the same, or so much thereof as may be necessary for that purpose, shall be applied to the payment of the judgment or decree of the complainant, and the residue applied to the benefit of the defend ant."'68 AS TO LANDS. in other ca We have already noticed, when treating of the fieri facias, Bill in equity as it respects personal property, those statutory provisions ses. which allow a party, where a fieri facias has been returned unsatisfied, to file a bill in equity, to compel a discovery, and prevent the transfer of choses in action and property.64 conveyan Real estate, like goods and chattels,101 may be sold under Fraudulent execution, where it has been fraudulently conveyed away. The ces: provisions of the statutes, respecting fraudulent conveyances of real estate, are as follows: delay, or de "Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the to hinder, rents or profits thereof, made with the intent to hinder, delay, fraud. or defraud creditors, or other persons, of their lawful suits, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded, shall be void."65 "Every conveyance, charge, instrument, or proceeding, declared to be void by the provisions of this chapter, as against creditors or purchasers, shall be equally void against 62 Ib. 745. s. 5. 63 Ib. s. 6. 64 Ante, Vol. 2. p. 312. 101 Ante, Vol. 2. p. 313. et seq. FIERI FACIAS the heirs, successors, personal representatives, or assignees, of such creditors or purchasers."6 AS TO LANDS. Fraud a question of fact. "Lands" and "The question of fraudulent intent; in all cases arising under the provisions of this chapter, shall be deemed a question of fact, and not of law: nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers, solely on the ground, that it was not founded on a valuable consideration.67 The provisions of this chapter shall not be construed, in any manner, to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear, that such purchaser had previous notice of the fraudu lent intent of his immediate grantor, or of the fraud rendering void the title of such grantor."68 69 "The term 'lands,' as used in this chapter, shall be construed as coextensive in meaning with 'lands, tenements, and hereditaments;' and the terms, estate and interest in lands,' shall conveyan- be construed to embrace every estate and interest, freehold and res" defined. chattel, legal and equitable, present and future, vested and contingent, in lands as above defined. The term 'conveyance,' as used in this chapter, shall be construed to embrace every instrument in writing, (except a last will and testament,) whatever may be its form, aud by whatever name it may be known in law, by which any estate or interest in lands is creThese provi- ated, aliened, assigned, or surrendered. The provisions of this chapter shall not extend to any conveyance, charge, contract, assignment, instrument, or proceeding, had, made, executed, or commenced, before this chapter shall be in force as a law."71 sions not to retroact. fraudulent before the 70 Law as to It is, of course, impossible to foresee how far these proviconveyances sions may be deemed to affect the rules of law previously established, but it would appear that they were not designed to alter the law, nor to affect it substantially, except where it was not already settled, and in making fraud a question of fact, and revision. |