Tarboro v. . Pender

This was an action by plaintiff, owner of the Bruce judgment hereinafter set out, against Admr. of B. Bryan and his heirs at law, for the sale of the homestead of said Bryan, to make assets to pay the Bruce judgment; the interpleader, Shackleford, and the defendant, Fountain, declared on their judgments against Bryan.

The material facts are: Shackleford obtained two judgments before a justice of peace against Bryan, 9 January, 1883, which were on the same day docketed in the Superior Court; Bruce obtained judgment in the Superior Court 16 April, 1888, which was docketed the same day, and plaintiff is now owner of the same; the Fountain judgment was obtained and docketed in the Superior Court 13 October, (429) 1896. Bryan's homestead was allotted under the Bruce judgment 26 September, 1895. Bryan died 11 August, 1906, and the defendant Pender qualified as his administrator 29 September, 1908. Plaintiff commenced this action 7 October, 1908, and on 4 November, 1908, by order of court, Shackleford was made a party to this action; he filed his complaint, setting up his judgments 9 March, 1909. The court ordered the sale of the homestead land and directed the administrator to pay out of the proceeds (1) the Shackleford judgments, (2) the Bruce judgment, held by the plaintiff, and (3) the Fountain judgment. To that part of the judgment, directing the payment of the Shackleford judgments, plaintiff excepted and appealed. The plaintiff pleaded the statute of limitations and the expiration of the lien, as to the Shackleford judgments, and the administrator and the defendant Fountain pleaded the same against both the Shackleford and plaintiff's judgment, and defendant Fountain appealed from the judgment overruling the same. After stating the case. The Bruce judgment had been in force 7 years, 5 months and 11 days, at the death of Bryan, and 9 years, 7 months and 7 days at the commencement of this action, excluding the time the statute was suspended, by reason of the allotment of the homestead. The lien of the judgment, being in force at the time of the commencement of this action, the administrator was properly directed to pay out of the proceeds of the sale the liens in the order of their priority.

As to the Shackleford judgments, by virtue of their docketing in the Superior Court, they became judgments of that court for the purposes of lien and execution for ten years from the date of docketing. From the date these judgments were docketed, 9 January, 1888, to the allotment of the homestead, 26 September, 1895, was 7 years, 8 (430) months and 19 days. From the date of Bryan's death, 11 August, 1906, to 4 November, 1908, when Shackleford was made a party to this action by the court was 2 years, 2 months and 24 days, making a total of 9 years, 11 months and 13 days, being less than the 10 years, which was necessary to destroy the lien. When a summons issues the statute is suspended though the service is later. So when the court made Shackleford a party, and directed notice to be issued to him, the statute was suspended just as if a summons had been issued.

This was an action in the nature of a creditors' bill to compel the administrator to sell the homestead, to make assets, to pay judgments.Oldham v. Rieger, 148 N.C. 548; Hancock v. Wooten, 107 N.C. 19. When the court took control of the property through this proceeding, the lien of the Bruce judgment was still in force, and when the court made Shackleford a party, his lien was also still valid, and the court will apply the proceeds in the order of the priority of the liens in force. This is not an action upon a judgment, neither is it an action to enforce the lien of a judgment, as in Lilly v. West, 97 N.C. 276. But here the court having taken charge of the res, the homestead land, and ordered it to be sold, will direct the proceeds to be applied in the order of their priority. By virtue of this proceeding, the plaintiff was debarred from enforcing his judgment by execution, as was also Shackleford from the date he was made a party to the proceeding, therefore, the statute did not run against him after those dates. Adams v. Guy, 106 N.C. 275.

The administrator is the proper party to sell the homestead land for distribution among judgment creditors. Blythe v. Gash, 114 N.C. 659;Springs v. Pharr, 131 N.C. 191. Revisal, 87 (5) directs the order in which the debts of the decedent shall be paid by his representative. In class 5, the order of payment is thus prescribed: "Judgments of every court of competent jurisdiction within this State, docketed and in force, to the extent to which they are a lien on the property of the deceased, at his death." The priority among judgment creditors is to be determined as they exist, at the death of the debtor, and the liens remain unaffected by the lapse of time thereafter, when, as here, the creditor is debarred of an opportunity to enforce his (431) claim by execution. Mauney v. Holmes, 87 N.C. 428; Danielv. McLaughlin; ibid., 433; Galloway v. Bradfield, 86 N.C. 163.

There is a broad distinction between the rules governing the application by a sheriff of funds raised by sale under several executions, one or more of which have become barred before the sale, Pipkin v. Adams, 114 N.C. 201, by the expiration of the judgment lien upon which the execution issued, and the distribution of assets by a personal representative, which, as was held in Galloway v. Bradfield, supra, the administrator must pay according to the priorities at date of death of debtor. The defendant Fountain is estopped from setting up the expiration of the liens, which were valid when the property was taken charge of by the administrator, under the orders of the court. Otherwise, his mere resisting the judgment to sell would make the other liens invalid, and his own lien good. When execution issues and the lien of the judgment expires before the sale this is by operation of law and not caused by the delay resulting from the resistance of the other party.

The judgment below is

Affirmed.

APPEAL BY G. M. T. FOUNTAIN.