Representatives of Dupree v. Adkins

Warner, Judge.

This was a rule against the sheriff for the payment of money in his hands, arising from the sale of the intestate’s property, on the following statement of facts: Dupree obtained a judgment against James M. Chandler, administrator, and Susan Chandler, administratrix of James O. Chandler, deceased. Three other plaintiffs had obtained judgments against the administrator and administratrix of James O. Chandler which were of younger date than Dupree’s judgment. Executions had issued on these judgments, and were levied on the property of the intestate, which was sold by the sheriff for the sum of $1,990 00. The representatives of Dupree claimed that the money arising from the sale of the intestate’s property in the hands of the sheriff should first be applied in satisfaction of their judgment, the same being of prior date. The other plaintiffs in ft. fa. claimed that the money in the hands of the sheriff should be distributed and paid pro rata to all the executions in the hands of the sheriffj without regard to the dates of the respective judgments, inasmuch as the notes on which the judgments were founded were of equal dignity at the time of the intestate’s death. The Court decided that the money in the sheriff’s hands should be paid pro rata to all the executions, without regard to the priority of the date of Dupree’s judgment. Whereupon the counsel for Duprees’ representatives excepted.

When a judgment is entered against an executor or administrator who is sued in his representative character, except when he pleads ne mques executor, or a release to himself, or plene administravit, or plene administravit preater, and his plea is found against him, such judgment must be entered de bonis testatoris. In this case, so far as appears from the record, the judgments were all rendered against the property of the intestate in the hands of his administrators, without any plea of want of assets in their hands to pay all the intestate’s debts, and the legal presumption is, that they had sufficient assets in their hands for that purpose. The property of the intestate was sold by the sheriff under executions which issued on these judgments, and the question is, as between these judgment creditors, who has the prior lien upon the money in the sheriff’s hands arising from the sale of the intestate’s property, as between each other ? The administrators of the intestate were not parties to this controversy, but it is simply a contest between the judgment creditors, who have obtained their judgments since the intestate’s death, as to the priority of their respective judgments. If a bill had been filed by the administrators to marshal the assets of the intestate’s estate on the ground of insolvency, or other sufficient reason, then, the debts of the estate would have been decreed to be paid according to their dignity at the time of the intestate’s death, or if under the provisions of our Code, the junior judgment creditors had, by petition with proper allegations, made it judicially appear to the Court that the intestate’s estate was insolvent, or shewn some good reason why the money in the sheriff’s hands should not be paid to thejudgments according to their legal priority, but according to the dignity of the debts at the time of the intestate’s death, then the question as the dignity of the debts might have been properly considered. In order to defeat a legal lien, some good reason must be shewn '; for it is a general rule that when different persons hold a lien on the same property, of the same dignity, then the oldest lien shall have the preference. As between the judgment creditors in this case, the oldest judgment was entitled to be first paid, there being nothing in the record going to show any reason why the debts of the intestate should be marshaled and paid according to their dignity at the time of his death, or that there was not sufficient assets in the hands of the administrators to pay all the intestate’s debts. Our judgment is confined to the statement of facts made by the record in this ease.

Let the judgment of the Court below be reversed.