Page:Harvard Law Review Volume 4.djvu/140

124 HARVARD LAW REVIEW, debtor's land, the judgment ought to be satisfied out of the corpus of such land, and there is no propriety in compelling the creditor to wait until he can obtain satisfaction out of the income. But this is not all ; for, if there were several creditors, they could enjoy the land only in succession, and hence, when one had obtained a judgment and extended the land, all the others must wait till his debt was satisfied, and the last one must wait till all the others' debts were satisfied ; and yet the corpus of the land might be sufficient to pay all the creditors in full. Fourthly, as an extent had no retroactive effect, there was no way, at common law, of reaching the income of the land between the ancestor's death and the making of the extent ; and yet the land could not be extended until an action had been brought against the heir, and a judgment recovered. For the foregoing reasons, it seems never to have been doubted that an heir could be sued in equity by a creditor of his ancestor. Equity treated an heir just as it did an executor, mutatis mutandis^ i.e., it held him liable only to the extent of assets which he had received by descent ; but it held that the corpus of such assets, as well as the rents and profits produced by them subsequently to the ancestor's death, should be applied immediately to the pay- ment of those specialty debts of the ancestor for which the heir was bound. Accordingly, when, upon a bill filed against the heir by the owner of such a debt, the plaintiff" had proved his claim, and the court had ascertained what land the heir had by descent, a decree was made that such land, or a sufficient portion of it, be sold under the direction of a Master, that the heir execute a con- veyance pursuant to the sale, and that the proceeds of the sale be applied, so far as necessary, to the payment of the plaintiff"'s claim, the surplus, if any, going to the heir; ^ and, if necessary, the decree further directed an account by the heir of the rents and profits of the land between the death of the ancestor and the sale.^ I have said that debts by matter of record did not share with specialty debts the advantage of being secured by the liability of the heir. The former, however, in turn had advantages of their own, which they did not share with debts of any other class. First, all matters of record (and therefore recognizances and stat- 1 See Seton, Decrees (isted), pp. 82, et seqq. ; Eddis, Administration of Assets, c. 7. 2 Davies v. Topp, i Bro. C. C. 524, Seton. Decrees (ist ed.), pp. 95-8; Stratford v. Ritson, 10 Beav. 25 ; Schomberg v. Humfr^y, i Dr. & W. 411.