Land cannot be sold under a fi. fa. which issues and bears teste, after the death of the debtor, without bringing in the heirs by scire facias: and this, although the fi. fa. may be an alias, the original of which issued and bore teste in the lifetime of the debtor.
Since it is held here that the judgment, (which in England is the ground of the charge on the terre-tenant,) is no lien, if a fi. fa. be issued, the court should be more solicitous to preserve the lien of the fi. fa. In this case, the first fi. fa. bearing teste in the life time of the debtor, a lien was thereby created, and the land might have been sold under that. If this be true, it has repeatedly been decided that the lien is continued by aliases regularly issued. Yarbrough v. State Bank, 2 Dev. Rep. 23. Palmer v. Clark, Ibid. 354-359. "The security of the creditor is founded on the teste of the execution, and derives no aid from the levy." Per TAYLOR, C. J. in Frost et ux v. Etheridge, 1 Dev. Rep. 34. Though he die before the return of the execution, the land may still be sold, c. Per HALL, J. Same case, 43-296.
RUFFIN, Chief Justice
— The record presents but a single question; which is, whether land can be sold upon a fieri facias, which issues and bears teste after the death of the debtor. Upon that question, the case of Den ex dem. Bowen v. McCulloch, N.C. Term Rep. 261, is a precise authority in the negative. A point is there left open, whether land is bound by the judgment, or only by the fieri facias, which has been since so decided as to restrict the lien to the teste of the fieri facias, if that be the process used. Consequently, the sale must be made upon a writ having relation to a day previous to the debtor's death, or the heir must be brought in by scire facias. The authorities there cited establish the necessity of process against the executor in similar circumstances. If he is not to be concluded without being heard, surely the heir is equally entitled to the defences, that the executor has paid the debt, or that the heir has paid other judgment debts to the value of the land descended, or the like.
PER CURIAM. Judgment affirmed.