Page:United States Reports, Volume 1.djvu/492

Rh 

1789.

cafe came before the Court on a rule to fhew caufe, why the Sheriff fhould not be directed to poftpone the fale of lands taken in execution in the hands of the purchafors from John Smith, the eldeft fon of Robert Smith, the interftate, till all the lands remaining unfold in the hands of the other children of Robert Smith, fhould be fold by virtue of the execution.

After argument, ftated the circumftances of the cafe, and delivered the opinion of the Court, in the following manner.

SHIPPEN,Preʃident :––The facts agreed on both fides in this caufe, are, that Robert Smith died inteftate indebted to feveral perfons, and poffeffed of a confiderable real eftate, but not of fufficient perfonal eftate to pay his debts ; that his adminiftrators applied to the Orphan's Court for an order to fell certain parts of the real eftate, fufficient to pay the debts and maintain the children ; that fuch order was accordingly obtained, and that part of the real eftate was fold for that purpofe ; that a fubfequent application was made to the Orphan‘s Court for a divifion of the remainder among the children ; that the pare alloted to John Smith,  the eldeft fon, on that divifion, was by him fold and conveyed to bona ƒide purchafors ; and that John Smith was himfelf an adminiftrator, and neglected to difcharge all the debts out of the fum arifing from the fale of the lands ordered to be fold by the Orphan's Court, but wafted the money, and is fuppofed infolvent.

Some of the creditors Robert Smith, whofe debts remained unpaid, have fince obtained judgments, and iffued executions againft the lands of the interftate, as well thofe by John Smith, under the order of divifion, as againft the lands remaining unfold in the hands of the younger children.

Three queftions have arifen upon the argument.

1. Whether, upon the death of the interftate, his lands were bound to the payment of the debts, in fuch a manner, as that they may be taken in execution and fold, notwithftanding the heir may have previoufly fold and conveyed the fame to bona ƒide purchafors?

2. Whether the purchafors from one of the heirs, is bound to contribute to the other heirs?

3.Whether the purchafors under the order of the Orphan's Court, are likewife bound to contribute?

I. In order to folve the firft queftion, it will be neceffary to take into view the feveral acts of Affembly which fubject lands to the payment of debts.

The act of 1700 fubjects all lands of debtors to fale on judgment and execution againft them, their heirs, executors, or adminiftrators. Rh