Lenoir County NcArchives Court.....Richard Caswell Heirs, Smith V. 1792
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File contributed for use in USGenWeb Archives by:
Martha M. Marble 58marble@suddenlink.net February 20, 2008, 2:51 am

Source: NC Reports
Written: 1792

SMITH vs RICHARD CASWELL'S HEIRS, DEVISEES & LEGATEES

North Carolina Reports, Vol. 2, pp 465, 466

No card could be found which indicates the case did not survive as a Supreme 
Court Case. More than likely the case was as a result of Claims against the 
estate of Gov. Richard Caswell SOURCE: Hillsborough District Court Records 
DSCR 204.508.2 
Original at North Carolina Archives – submitted by Clair Hadley

A creditor obtained judgment against an executor and granted a stay of 
execution; the executor, before the stay expired, removed the personal 
property, so that it could not be found to satisfy this execution. Equity will 
support a bill against the heirs and devisees to charge the real estate, which 
the executor was by the will, directed to see for the payment of debts.

Upon the bill, answers and evidence, the case appeared to be – that the 
testator by his will, charged his real estate with the payment of his debts, 
and authorized a sale by his executors, in case it should be necessary.

Smith objained (sic) a judgment at law in this court, in September Term, 1792, 
for about seven hundred pounds, with stay of execution for six months. At that 
time the executor had assets to the amount of eight thousand, or nine thousand 
dollars. Before the six months were expired, other judgments were obtained. 
The largest of these, to the amount of five hundred and forty-one pounds, the 
executors purchased. Under these executions, part of the property was sold; 
and in 1796, a sale was made by the sheriff to satisfy the execution of five 
hundred and forty-one pounds. Before the expiration of the six months, the 
property was removed into another county, and a sale was attempted afterwards 
to satisfy the plaintiff's execution; but the executor and one of the heirs, 
now a defendant, drove away the bidders, and a sale was postponed. After this 
time the property could not be found by the sheriff.

The plaintiff's counsel insisted that the bill was a proper one, in aid of the 
execution; for the lands could not be come at at law (sic), since although 
they were made assets by the will in the hands of the executor, they could not 
be sold by a common law execution; neither could they be sold by a sci.fa. to 
be issued upon this judgment; the executor had not pleaded fully administered.

For the defendant it was argued, that the executor was liable to be proceeded 
against as for a devastavit, and should be resorted to before recourse could 
be had to the lands.  Indeed the heirs cannot be proceeded against at all in 
equity, because the deficiency of assets was occasioned by the delay of 
execution, which the creditor consented to. It is the loss which took place in 
consequence of this delay that has forced the plaintiff to attempt a recovery 
against the heirs. Part of this property was not sold till 1796. The 
plaintiff's execution bore test before several others under which it was sold. 
Secondly, the plaintiff can yet have remedy at law, by an action of debt on 
the bond against the heirs, if they were liable to the debts under the 
circumstances of this case. Thirdly: the plaintiff can have remedy at law, by 
proceeding against the executors or the representatives of the executor, who 
it is said, is now dead.

Johnston, Judge, decided, that notwithstanding these objections, the bill in 
equity will lie – and decreed for the complainant. He said, it is sufficient 
for the plaintiff that his execution was returned – nothing to be found. He 
need make no further proof. Possibly he might sue the heir upon the bond. He 
might, perhaps, by proceeding against the representatives of the wasting 
executor, recover; but he would meet with great difficulties in that way, if 
not be finally defeated. And why take that course, when there is one more near 
and plain than the one he has taken. There can be no doubt but that this court 
has jurisdiction over the cause. The will directs the executors to sell the 
lands for the payment of debts. It is a trust in them, and this court is 
properly called on to enforce the execution thereof.


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