Brock v. Kirkpatrick

April 18, 1901. The opinion of the Court was delivered by The plaintiffs brought this action to subject lands, devised to the defendants, to the payment of debts of the devisor. The main facts in the case are these:

1. The devisor, Jane Taylor, died on 15th December, 1888, leaving a will of which R.T. Kirkpatrick was made executor.

2. By her will she devised to the defendants each a tract of land, into the possession of which they immediately entered, and of which they are still in actual and exclusive possession.

3. After the devisor's death, at some time before March, 1895, the plaintiffs recovered judgment against the executor on a note given by the devisor, in the Court of Common Pleas for Abbeville County.

4. On 21st March, 1895, the plaintiffs, in a proceeding to prove said judgment, recovered judgment in the court of probate against the executor, which was duly docketed and became a judgment of the Court of Common Pleas.

5. It is not claimed that the defendants herein were parties to any of these proceedings, but it appears that the executor was the sole defendant.

6. Execution was issued, and returned nulla bona.

7. The debt is still unpaid.

The plaintiffs seek to subject the lands devised to the defendants to the payment of this debt of the devisor. The defendants stand on several defenses; but the main defense is that the note sued to judgment is barred by the statute of limitations, that it was a promissory note, and the cause of action accrued more than six years before the commencement of this action on 21st April, 1899. The report of the case will set forth in full — the complaint; the answer; the grounds of the defendants' demurrer to the complaint; the grounds of the plaintiffs' demurrer to the answer; the decree of the Circuit Judge; the plaintiffs' exceptions to the decree; and the defendants' exceptions thereto.

The cause was heard on Circuit by his Honor, Judge Gage, upon the pleadings. In his decree he overruled the defendants' demurrer, sustained several of the grounds of the plaintiffs' demurrer; but overruled the first and most important, which reads as follows: "That it is immaterial to the defendant, when the cause of action accrued upon the note, the plaintiffs having the right to bring the action to subject lands devised to the payment of the debts of the testatrix at any time within six years after their remedies against the executor have been exhausted." With regard to the defendants' demurrer which was overruled, and that portion of the plaintiffs' demurrer which was sustained, it is sufficient to say that we agree with the Judge in his decision, and we adopt that part of his decree as expressing the opinion of this Court on the points involved. We do not, however, agree with him in his decision overruling the first ground of plaintiffs' demurrer, quoted above, but are of the opinion that it should have been sustained. In his decree the Judge said: "There can be no question that plaintiffs' cause of action consists in holding a valid debt against the testatrix, and the possession by defendants, as volunteers, of property liable for the payment thereof. These two facts give the legal right. When did the legal right called cause of action accrue? The plaintiffs contend only when the plaintiffs' remedy against the executor was exhausted — that is, when judgment was rendered, execution issued, andnulla bona thereon returned. But, as I conceive the law, the plaintiffs had the right to pursue the devisees independent of the executor, and whether the executor had assets or not. The reason of this is made plain by Chancellor Harper in Vernon v. Valk, 2 Hill Ch., 259, 260 and 261. If the plaintiffs had this right of pursuit, it accrued at that specific time when they held a past due obligation of the testatrix, and the defendants held property of the testatrix liable therefor. The judgment against the executor is resinter alios acta, cannot affect the defendants' rights, and, therefore, need never have been rendered. * * * My opinion is, if the facts so stated as the cause of action herein, existed more than six years before this action was begun, the statute may be pleaded against the enforcement of the obligation. The first ground of plaintiffs' demurrer is, therefore, overruled."

The part of the demurrer thus overruled was directed against the first defense of the defendants, in which they pleaded the statute of limitations as a bar to any recovery against them on the debt of their ancestor. Taking the facts alleged to be true, for the purposes of the demurrer, we do not think the defendants could plead the statute as a defense; and it is our opinion that the learned Judge erred in holding it was a good defense, and in overruling the first ground of plaintiffs' demurrer. And we shall proceed to set forth briefly the reasons for our decision. The word briefly is used advisedly — for there is, we confess, a strong temptation to write a long and elaborate review of the cases in which the law involved has been considered and discussed by the Courts of this State. It was in D'Urphey v. Nelson, 1 Brev., 289, decided in 1803, by the Constitutional Court, that the first opinion was filed upon the effect on lands descended or devised of a judgment against the administrator or executor recovered on a debt of the intestate or the devisor. This was followed, in 1827, by Martin v. Latta, 4 McC., 128; and from that time to the present these two cases have been regarded as the common source of the law on this interesting subject. These cases did much to settle the law, aided greatly, however, by the application of the principle of stare decisis. For the doctrines laid down were not received with favor, and the law was so long in doubt that it "seriously embarrassed the bench and bar for a long period of time," as said Mr. Justice Willard, in his dissenting opinion, in Rogers v. Huggins, 6 S.C. 377. Learned Judges and prudent Chancellors, like Colcock, Dunkin and Harper, did not hesitate in their written opinions to express their regret that the law had been so decided — Martin v. Latta, supra; Bird v. House, Speer Eq., 252; Vernon v. Valk, 2 Hill Ch., 261. But, like Judge O'Neall, in Jones v. Wightman, 2 Hill, 250, they regarded the two leading cases "as authority not to be questioned by either the bar or the bench; and that the Court would not only act unwisely, but with a rashness utterly reckless of consequences, were they now to undertake to review and reverse those cases." The construction put upon the statute of 5 Geo. II., C. 7, inD'Urphey v. Nelson, has thus become the settled law of the State, namely, that the lands descended are liable for the payment of the ancestor's debt, and may be sold under a judgment recovered on that debt against the administrator, although the heirs were not parties to the action. So, also, sec. 2080, Rev. Stat., makes lands devised liable for the payment of testator's debts; while sec. 2000 makes all devises "absolutely and utterly void" against creditors by bond or specialty.

The general proposition — that lands descended or devised may be subjected to the payment of the debts of the intestate or the testator — is plain and easily understood, but the application of it as a rule of law has frequently been attended with great difficulty. Different cases presented each a different state of facts, and this law in favor of creditors had to be regarded from different points of view. Could this rule be applied, whether the heirs or devisees were or were not in the actual and exclusive possession of the land? Could it be applied as well after as before partition? Could exclusive possession by the heirs or devisees for a sufficient length of time prevent the application of the rule, the creditor thus losing his right by laches? These and cognate questions came before the Courts for adjudication in numerous cases, and the long line of opinions in our reports settling these questions attest as well the difficulty of the subject as the learning, labor and research of the Justices who delivered them. Some of those opinions present a careful and exhaustive review of all the cases from D'Urphey v. Nelson down, and they succeed in reconciling views which at first sight may seem to be irreconcilable: for example, the opinion of the Court, by Mr. Chief Justice Moses, in Rogers v.Huggins, 6 S.C. 356, and the learned and elaborate opinion by Mr. Chief Justice McIver, in Huggins v. Oliver, 21 S.C. 147, in which latter case there is a complete and instructive review of almost every decision on the subject. After careful and repeated perusal and consideration of all the cases, the writer of this opinion came to the conclusion that it would be supererogatory, however interesting, to prepare a thorough, analytical review of all of them — to attempt to do again what has already been so well done. He, therefore, contents himself with stating briefly the results of the labors of his predecessors, as disclosed by the leading cases.

It has already been shown that the case of D'Urphey v.Nelson, supra, decided that the statute of George II. makes the land of a deceased person assets in the hands of his personal representatives, and thus liable for the payment of the debts of the deceased. The case of Martin v. Latta, supra, simply reaffirms the law as laid down in D'Urphey v. Nelson. In neither case did it appear that the heirs or distributees had ever been in possession of the land; but, on the contrary, it was shown in both cases that a purchaser was in possession. Consequently nothing was said in either case about the rights of heirs or devisees in actual and exclusive possession before judgment recovered against the administrator or executor. In Jones v. Wightman, supra, the plaintiff was in possession as purchaser under a judicial sale for partition. While still adhering to the rule established in D'Urphey's case as applicable when the heirs held the land as descended estate, and whether in actual possession or not, Judge O'Neall delivering the opinion of the Court, held that the rule did not apply after the lands had been partitioned and purchased from the heirs by a third person. It thus appears that lands descended or devised cannot be subjected to payment of ancestor's debts, when by partition or other acts of law, the character of the possession is changed, and becomes exclusive in the heirs or devisees. Bird v. Houze, Speer's Eq., 250, marks another step forward in the progress of the doctrine under discussion. Chancellor Dunkin, while dissatisfied with the decision in D'Urphey's case, still recognized it "as a settled law of property," but held in Bird's case that the exclusive possession of the heirs, and acts of ownership exercised by them, protected their inheritance from levy and sale under an execution against the personal representative of their intestate. This does not mean that the mere fact of actual and exclusive possession in the heir will prevent the application of the rule in D'Urphey's case. Such a construction would amount to a practical abrogation of the rule; for, as was pointed out by Mr. Chief Justice Moses, in Rogers v. Huggins, supra, "In the very large proportion of the instances in this State (and the case before us presents one), they upon whom the inheritance is cast are in possession at the very moment of the death of the ancestor, for in nine cases out of ten they are members of his own household." The reasonable construction of the decision in Bird v. Houze is that while lands in the actual and exclusive possession of the heirs, and over which they have exercised acts of ownership, may not be sold under a judgment against the administrator upon the debt of the intestate — and that, too, although no regular partition has been made — yet may they still be subjected even in the hands of the heirs to the payment of the ancestor's debts in a proceeding instituted for that purpose, to which proceeding the heirs would be necessary parties. The judgment of the Court in Bird v. Houze was based on the additional ground of laches. It appeared that nothing had been done for ten years after the judgment had been recovered, and the heirs had been left in undisturbed possession for twelve years. "After such laches," said the Court, "it is too late to resort to the heir." This was the first case in which the fact of actual and exclusive possession in the heir was before the Court. It was the first, also, in which the heir had a defense which the administrator had failed to interpose, namely, the statute of limitations, which was sustained. And the decision of the Court in that important case went no further than this: that lands descended and in the actual and exclusive possession of the heir may not be subjected to the payment of the ancestor's debt without giving the heir notice and an opportunity to defend — that is, in a proceeding to which he would be a necessary party. This just interpretation shows that there is no conflict between the cases of D'Urphey v. Nelson, and Bird v.Houze.

Another instructive case is Rogers v. Huggins, 6 S.C. 356. It has gone further than any other case, as was said by Mr. Chief Justice McIver, in Huggins v. Oliver, supra. It decided that the mere fact that the heirs of an intestate were in possession of the land, would not defeat the right of a creditor to have the same sold under a judgment obtained against the administrator upon a debt of the intestate. And in that case it was conceded that after partition, lands of the intestate cannot be sold under a judgment against the administrator. The opinion was delivered by Moses, C.J., Willard, A.J., dissenting.

We now come to those cases which are particularly referred to by Judge Gage in his decree in the case at bar. The learned Judge says: "I have carefully read Lanier v. Griffin, 11 S.C. 566. That judgment is based on Judge Johnson's opinion on Circuit, in McMullin v. Brown, 2 Hill Ch., 462. The Court of Appeals did not sustain all the conclusions of the Court below; and the same Court of Appeals lays down principles in Vernon v. Valk, supra, which are antagonistic to the conclusions of Judge Johnson." InMcMullin v. Brown, supra, one of the questions raised in the defense was, "whether the plaintiff's rights against the defendant are not barred by the statute of limitations?" The Court held that the statute of limitations will not run so as to protect a legatee against his liability to pay testator's debts until after the remedy has been exhausted against the executor — that no cause of action accrued against the heir or legatee until then. It appeared that the legatees had been in possession of their legacies from 1816 to 1817, and that the bill which was brought by the creditor of the testator against the legatees was not filed until 1829. It was held, however, that the suit had been brought in due time, as the cause of action did not arise until judgment had been recovered against the executor, and a deficiency of assets established, so as to enable the legacies to be followed. The case of Lanier v. Griffin, supra, referred to by Judge Gage, expressly reaffirms and corroborates this decision in McMullin v. Brown. The opinion was delivered by Mr. Chief Justice Willard, who used the following language: "It was held that the suit" (in McMullin v. Brown) "had been brought in due time; as the cause of action did not arise until judgment had been recovered against the executor, and a deficiency of assets established, so as to enable the legacies to be followed. In that case, the question whether the creditor was barred as against the legatee was considered independently of the question whether such a suit by the executor would have been so barred."

But, conceding that Lanier v. Griffin accords with McMullin v. Brown, Judge Gage says in his decree that the same Court of Appeals which rendered the decision in McMullin v. Brown laid down principles in Vernon v. Valk which are antagonistic to the conclusions of Judge Johnson in the former case; and that, moreover, all of his conclusions were not sustained. The Circuit Judge does not set forth the antagonistic conclusions, nor does he indicate which of Judge Johnson's conclusions were not sustained.

A careful consideration and analysis of the decisions referred to fails to discover points of actual difference or of antagonism. Vernon's case was decided in March, 1835; McMullin's in December, 1836. The Court of Appeals that heard Vernon's case consisted of Judges Johnson, O'Neall and Harper. The Court of Appeals that decided McMullin's case was composed of Chancellors DeSaussure, Johnson, Harper and Johnston; and of Judges O'Neall, Gantt, Richardson, Evans, Earle and Butler. The report of McMullin's case shows that while Chancellor Johnston delivered the opinion of the Court, Chancellor Harper and Judge O'Neall concurred with the others in the decision. It thus appears that the same three learned Judges were of one mind in Vernon's case and in McMullin's case. It is not easy to believe, that, in so short a space of time and on a subject of so much importance, those three eminent men could have given their sanction to antagonistic opinions. There is one slight semblance of difference of opinion in those two cases. In Vernon v. Valk, we find Chancellor Harper saying this, with reference to the cases of D'Urphey v. Nelson and Martin v. Latta: "Notwithstanding our decisions that lands in the hands of the heir may be sold by an execution upon a judgment against the executor or administrator (decisions which, however much we may regret them, have yet obtained too long, and too many rights have been vested under them, to allow us to interfere with them), yet I suppose an action at law might be sustained against the heir alone. There is nothing in these decisions to forbid such an action. In such action, the executor neither would nor could be joined, and it would be immaterial whether there were an executor or administrator in the State or not." To understand clearly the full logical import of the learned Chancellor's language, we must look into the facts of the case then before the Court. The bill shows that in Vernon's case there was no executor or administrator, and there were no personal assets in the State. A decree had been rendered in New York against the executrix, lately deceased. The Chancellor says: "It would be mere mockery that a formal administration should be taken out here, where there are no assets, in order that such formal administrator might be made a party." Keeping these facts in mind, there is no inconsistency between the decisions in Vernon's and McMullin's cases. It is always important to limit the scope of a decision to the special point presented in the case for adjudication. As to other questions not arising in the case, a decision is a mere obiter dictum. It would seem that Judge Gage gave the decision in Vernon v. Valk a larger meaning and a wider and more general application than Chancellor Harper and the concurring Justices intended. The Judge says in his decree: "The plaintiffs had the right to pursue the devisees independent of the executor, and whether the executor had assets or not. The reason of this is made plain by Chancellor Harper, in Vernon v. Valk, 2 Hill Ch., 259, 260 and 261. If the plaintiffs had this right of pursuit, it accrued at that specific time when they held a past due obligation of the testatrix, and the defendants held property of the testatrix liable therefor." In this we cannot agree with Judge Gage, being of the opinion that he misunderstood the language and misapplied the doctrine of the decision in Vernon v. Valk.

The doctrine applicable to the case before us is that so plainly laid down in McMullin v. Brown, supra, and expressly reaffirmed in Lanier v. Griffin, supra, namely, that the statute of limitations will not run so as to protect a legatee against liability for his testator's debts until after the remedy has been exhausted against the executor — no cause of action accruing against him until that time. What is the true nature of the action at bar? It is not an action to recover from the defendants the amount of a debt due by their devisor. It is not to establish a personal demand against them, for they cannot be held liable personally. It is simply an action to subject lands in the possession of the defendants as devisees to the payment of the debt of their devisor. In the apt language of the Circuit decree, "There can be no question that plaintiffs' cause of action consists in holding a valid debt against the testatrix and the possession by defendants as volunteers of property liable for the payment thereof." We may adopt and — to suit the facts in this case — adapt the language of Mr. Chief Justice McIver, in a somewhat similar case (Cleveland v. Mills, 9 S.C. 436), and say that this is an action to subject the lands of the debtor, Mrs. Taylor, in the hands of the defendants as devisees, to the payment of her debt; and it is founded upon the equity which creditors have to follow the assets into the hands of the heirs and devisees to obtain payment of their debt. The question, therefore, is not whether the defendants owe the debt — for there is no pretence that they ever did — but whether the testatrix ever owed it; not whether the right of action on the debt against the defendants is barred by the statute of limitations — for, strictly, there never was such a right of action — but whether the right of action against the testatrix or her executor is barred. "The only defense, therefore, that could avail the defendants would have been either to show that there was no such debt due by the testatrix, or that the action thereon against her executor was barred by the statute of limitations, which they might do, even though the executor should omit to interpose such a defense (Bird v. Houze, Sp. Eq., 250); or to show suchlaches on the part of the plaintiff as would deprive him of the right to invoke the equity powers of the Court, as inMobley v. Cureton, 2 S.C. 140; or to have relied upon their own possession for the statutory period, as in Miller v.Mitchell, Bail. Eq., 437" (Cleveland v. Mills, supra, 437).

The comparatively recent case of Ariail v. Ariail, 29 S.C. 84, was not referred to or cited in the argument of the case at bar, but it was brought to our attention afterwards, in accordance with the recognized practice in this Court. It is not surprising that counsel for the defendants should regard Ariail's case as sustaining their view of the law, for some of the views expressed in that case would seem at first sight to be in conflict with the doctrine so distinctly laid down inMcMullin v. Brown and Lanier v. Griffin. Mr. Chief Justice Simpson, who delivered the opinion of the Court, used the following language: "The judgment against the executor then having no effect whatever upon the heirs or devisees, and it being necessary that plaintiff's cause of action, if any, should be established against them in a suit to which they are parties, as in the case below, we think they had the right to set up any defense available at the time, including the statute of limitations, without regard to the action against the executor of their father in 1883, which in our judgment did not arrest the currency of the statute commencing in 1868. Nor was it necessary to have a return ofnulla bona on said judgment before action accrued against the devisees. Reener v. Speake, 4 S.C. 295; Lanier v.Griffin, 11 Id., 582." If the law here laid down be regarded as a legal principle of general application, there is no doubt that it would be in direct conflict with the decisions of our Courts which we have already reviewed in this opinion, and especially with the decisions in McMullin v. Brown andLanier v. Griffin, supra. But when the conclusions arrived at in Ariail's case are limited in their application to the issues actually involved in that case, the seeming conflict disappears. In that case, the Circuit Judge had held that the claims of three of the plaintiffs were barred by the statute of limitations. "This question," says Chief Justice Simpson, "which is the main and vital question in the case, depends upon other subsidiary questions which his Honor considered and decided, as involved in and leading up to this main question. They are, therefore, also before us. These questions are: first, was the settlement of John Ariail, made before the ordinary of Pickens District in February, 1868, and his discharge, an act throwing off his trust such as gave currency to the statute? And, if so, second, did his Honor err in holding that the statute began to run as to each of the plaintiffs as they reached their majority, respectively, and that each was barred at the end of four years and nine months from said majority, notwithstanding the action of said plaintiffs against the executor of John Ariail in 1883, and judgment thereon in May, 1885, for the sum of $1,450.70, and a return of nulla bona made in July, 1885?" The Court affirmed the conclusion of Circuit Judge Fraser, that the settlement and discharge of John Ariail in 1868 was a disavowal of his trust as administrator; that such disavowal necessarily gave currency to the statute; that the plaintiff's action against John Ariail's executor in 1883 did not arrest the statute as to the defendant's devisees, and give it a new starting point either at the commencement of the said action or at the judgment obtained therein in 1885. These important questions being thus settled, the conclusion was unavoidable that the judgment against the executor did not affect the devisees; that the plaintiff's cause of action should be established against them in a suit to which they were parties; that in such suit the devisees had the right to set up any defense available at the time, including the statute of limitations, without regard to the action against the executor of their testator in 1883; and that such action did not arrest the currency of the statute commencing in 1868. Up to this point there is not even the appearance of conflict between the decision of the Court in Ariail's case and the doctrines established in the leading cases already referred to: Vernon v. Valk; McMullin v.Brown; Bird v. Houze; Lanier v. Griffin; Rogers v. Huggins;Cleveland v. Mills; Huggins v. Oliver, c.

But the opinion in Ariail v. Ariail goes on to say: "Nor was it necessary to have a return of nulla bona on the said judgment before action accrued against the devisees." As a general proposition, this is in obvious antagonism to the rule laid down in McMullin v. Brown, and recognized in several subsequent cases, namely, that the statute of limitations did not run so as to protect a legatee or devisee against his liability for his testator's debts until after the remedy has been exhausted against the executor — no cause of action accruing against him until then, for the sound reason that until the creditor has exhausted his remedy against the executor, or administrator, he cannot certainly know that the assets in the hands of the personal representative would prove insufficient (McMullin v. Brown, supra), or, indeed, that there were no assets in his hands. Was it the intention of the Court, in Ariail v. Ariail, to overrule McMullin v.Brown, and the other cases following in line? We do not think so. No mention is made of McMullin v. Brown in Ariail's case, nor of any desire to overrule or even to modify it. The importance of the law of property involved is too great and far-reaching to permit the supposition that the Court intended a result so serious, while giving no intimation of such intention.

When the facts in the case and the Circuit decree are considered, it is manifest that the Court was not looking beyond those facts, and the issues arising therefrom, when it announced that a return of nulla bona was not necessary before action accrued against the devisees. The report shows that it was admitted that there were no assets in the hands of Gary, the executor. Such an admission made it unnecessary to obtain a return of nulla bona, or to seek a remedy against the executor. That this is all that the Court meant, is made clear by an examination of the two cases cited by the Court — Reeder v. Speake, 4 S.C. 293, and Lanier v.Griffin, 11 S.C. 582. On the page referred to in the latter case is found the following: "If the executor has assets, or their deficiency has been occasioned by his wrong, the creditor must go against him in the first instance, and exhaust his remedy before he can go against the legatee, as was held in McMullin v. Brown." And in Reeder v. Speake, we find this: "To require the creditor of a decedent to obtain return of nulla bona on an execution against the executor or administrator before he could call for an account in the court of equity, and claim its interference against the descended or devised real estate, would exact a barren form productive of, and ending in, nothing but costs and expenses." From these two cases the Court very obviously concluded that in Ariail's case, in which it was admitted that there were no assets in the executor's hands, it would be futile and unnecessary to "exact the barren form" of obtaining a return ofnulla bona. It will be remembered that in Vernon v. Valk,supra, Chancellor Harper held, for somewhat similar reasons, that where there was no executor or administrator and no assets in this State, "it would be mere mockery that a formal administration should be taken out here, where there are no assets, in order that such formal administrator might be made a party;" and that, therefore, the creditor in such a case might bring his action against the heir alone. So that, also, it might well be said that it would be mere mockery to exact a return of nulla bona, when it is admitted that the executor has no assets. And this is all that the Court meant when it said in Ariail's case, that "it was not necessary to have a return of nulla bona on said judgment against the executor before the action accrued against the devisees." Regarded as the law in Ariail's case and applied to the facts involved and the issues raised, this is a sound proposition. But if it is to be regarded as a principle or rule of general applicability, we do not hesitate to say that it is in irreconcilable conflict with the important doctrines established with so much care, labor and learning, in the leading cases we have passed under review and recognized in a long line of subsequent decisions. The former view is, in our opinion, the reasonable exposition of the law in Ariail v. Ariail. If we could regard the latter as the reasonable view, this Court would without hesitation overrule that case so far as the point in question is concerned. But we do not think it necessary to take that step, being of the opinion that the doctrine laid down in that case is not out of harmony with the decisions in the leading cases to which we have so frequently referred.

In Huggins v. Oliver, 21 S.C. 159, to which we have already referred, Mr. Chief Justice McIver, after a very thorough and discriminating review of the leading cases, makes much easier the understanding and application of this important law of property by laying down the following rule: "It seems to us that the rule to be deduced from the foregoing cases is this: that while, as a general proposition, it is true that lands of an intestate may be sold under a judgment recovered against the administrator upon a debt of the intestate, yet if the lands have passed into the actual and exclusive possession of the heirs before the judgment has been recovered, and before any lien has thus been fixed upon them, they can no longer be sold under such judgment, and can only be reached by the usual proceedings to subject real estate in the hands of the heir to the payment of the debts of the ancestor — to which proceedings the heir would, of course, be a necessary party. Without this qualification of the general rule stated in D'Urphey v. Nelson, it would be impossible to reconcile the various decisions to which we have referred, but with it the cases may all be harmonized."

We cannot do better than again announce this excellent rule as the logical result of the numerous decisions on this vexed question. The doctrine which the rule embodies is clearly indicated in Gilliland Howell v. Caldwell, 1 S.C. 198. That case has the following: "The statute of George II. does not 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 nor privies."

When the principle deduced from the cases we have reviewed are applied to the facts in this case, it will easily be seen that the judgment recovered by the plaintiffs against the executor in March, 1895, does not bind the defendants, and the lands in their hands as devisees cannot be sold under that judgment. They were not parties to that suit and thus had no opportunity to dispute the claim. Although the claim was sued to judgment, that fact does not give it any higher rank or greater effect, in so far as the defendants are concerned. As to them it is not res judicata. And when, as in this case, the judgment is made the basis of an action to obtain a decretal order to sell the lands in their hands as devisees to pay the debt of their testatrix, they have the right to contest the claim as freely as if it had not ripened into a judgment. They may, as we have already shown, set up the defense that it was not a valid debt against their testatrix, or they may plead laches or any other good defense. They may plead the statute of limitations as running in their favor in a proper case.

But in this case the statute did not begin to run when the plaintiffs held a past due obligation of the testatrix and the defendants held lands devised and liable therefor, as was held by Judge Gage. The statute began to run only after the remedy against the executor had been exhausted. The judgment was recovered in March, 1895, execution issued and nulla bona returned thereon. This action was commenced in April, 1899, only four years after the remedy against the executor had been exhausted. It is clear, therefore, that the statute of limitations could not properly be set up as a defense by these defendants, and that the plaintiffs' first ground of demurrer directed against that defense should have been sustained; and that it was error in the Circuit Judge to overrule it.

It is the judgment of this Court, that the decree of the Circuit Judge herein be reversed, in so far as it overruled the plaintiffs' first ground of demurrer; and that in all other respects the judgment of the Circuit Court be affirmed, except as to the right of homestead, which was left open by the Circuit Judge, and that the case be remanded to the Circuit Court for the purpose of hearing and determining the claim of homestead, with leave to the defendants to apply to that Court for such amendments to their answer as may be deemed necessary to bring before the Court all such facts as may be pertinent to the claim of homestead.