¶1This was a bill in chancery, filed by McDowell, administrator of Whitton, against Adam Jesse Cochran, to subject a certain tract of land to the payment of a judgment recovered by the complainant, against the administratrix of the estate of Adam Cochran, which estate the bill alleges is insolvent. The bill charges that Adam Cochran entered the land, with his own funds, in the name of his infant child, the defendant, with the fraudulent design of preventing the complainant from collecting the debt, for which the judgment was rendered. The Court sustained a special demurrer, and dismissed the bill.
¶2If the allegations of the bill respecting the purchase of the land are true, the complainant has in equity a clear right to enforce satisfaction of his judgment out of the land. It is insisted, however, that he cannot seek this relief until an execution has been issued on the judgment, and returned unsatisfied. The general rule undoubtedly is, that a creditor must obtain a judgment for his debt, and endeavor unsuccessfully to enforce its collection by execution, before he can go into equity to satisfy it, out of property that cannot be reached at law. His right to relief in equity, in such case, rests on the fact that he has exhausted his legal remedies without being able to collect his debt. Ordinarily an execution must issue on the judgment, and be returned unsatisfied, before a Court of Equity will entertain a bill, to reach real estate in which the judgment debtor has not such an interest as can be sold on execution. But the present case is an exception to the rule. The complainant has already exhausted his legal remedies without success. Under our statute, an execution cannot issue on a judgment against an administrator, but the judgment is to be paid in due course of administration, as all other claims against the estate. Welch vs. Wallace, 3 Gilman, 490. The estate being insolvent, the complainant cannot obtain payment in the latter mode. His only remedy, therefore, is to proceed in equity against the land, and to that, on the showing of the bill, he is clearly entitled.
¶3But it is contended that, instead of permitting him to pursue this remedy, he should be required to institute proceedings in the Probate Court, to compel the administratrix to petition the Circuit Court for leave to sell the land, to pay the debts against the estate. The statute seems only to authorize the Circuit Court to order the sale of real estate of which the intestate died seized; but however that may be, there are strong reasons why all questions affecting the title to the land in question should be adjusted, before the land is exposed to sale. These matters could not be investigated and settled, in a summary application by the administratrix for a license to sell land to pay debts. Unless a good title could be acquired by the purchaser, the property would be sacrificed, and the rights of the estate and creditors prejudiced. All obstacles in the way of acquiring such a title, should be removed before a sale is ordered.
¶4It is insisted that a bill of this character should be filed on the behalf of all the creditors of the estate. If there is any force in this objection, it is a sufficient answer to remark, that the case no where shows that there are any other creditors than the complainant. If there were other creditors, and the complainant should succeed in subjecting the land to sale, perhaps a question might arise whether he would be entitled to a priority in payment, as a reward for his superior vigilance, or whether the proceeds should be considered simply as assets to be distributed pro rata among all the creditors. But these questions do not arise, and it is not necessary to express any opinion respecting them.
¶5It is insisted that the administratrix is a necessary party to the suit. This objection to the bill is well taken. The complainant should have made the administratrix a defendant, and allowed her an opportunity of showing that the judgment had been paid, or, if unpaid, that the estate was solvent, and, therefore, this proceeding was unnecessary. For this defect in the bill, the demurrer was properly sustained.
¶6It is assigned for error that the Court erred in dismissing the bill unconditionally. If the complainant wished to amend the bill, he should have asked leave of the Court for that purpose; which would have been granted. But omitting to do that, he elected to stand by the bill, and the proper decree on the demui’rer was for its dismissal.
¶7The decree of the Circuit Court is affirmed, with costs.
¶8Decree affirmed.