|
|
|
|
|
|
|
TESSIER v, WYSE. *20
although it has been so construed as to allow simple contract creditors to obtain
payment from the realty in no other way than by a creditor's suit in equity. The
act of Assembly which authorizes the sale of land, with the consent of the guar-
dian of the infant, does nothing more than, so far, to qualify the infant's privilege
to have the parol to demur. The several acts of Assembly relative to the mode
of proceeding by or against an infant, where a suit at law abates by death; and
relative to the administration of assets, have made no alteration in the law as to
the rights of creditors, or as to the mode of proceeding in a creditor's suit, The
only material alteration of the pre-existing law made by the act of Assembly in
relation to the sale of real estate descended or devised to infants, is that of hav-
ing virtually abolished an infant's privilege of having the parol to demur in a cre-
ditor's suit. The provisions of the act of Assembly allowing creditors to obtain
satisfaction from the escheatable estate of their debtor, do not affect their rights,
or any mode of proceeding as against his heirs or devisees. Where the then de-
fendants are entitled to both personal and real estate, the making of the personal
representatives of the deceased debtor a parly may be dispensed with.
In a creditor's suit, even if the bill should be dismissed as to the heirs, yet relief
may be had against the administrator to the extent of the assets in his hands.
The decree for a sale virtually puts the estate order the protection of the court;
and, therefore, an injunction may be granted to stay waste. The mere fact of an
infant's having attained his full age is not a ground for rehearing in a creditor's
suit Although an infant, who attains his full age pending a suit, may be allowed
to come in, as of course, and demur, plead, or answer, yet he cannot be permitted
to do so in a creditor's suit after a decree.
THIS bill was filed on the 15th of June, 1825, by John Tessier
and Samuel Smith and James A. Buchanan, trading under the firm
of S. Smith & Buchanan, against John M. Wyse, William A.
Wyse, Eliza Wyse, Margaretta Wyse, Edward Wyse, Nicholas H.
Wyse, Matilda Wyse, Francis O. Wyse, Joseph Allender, and
George Riston. The bill states, that William Wyse was indebted
to the plaintiffs S. Smith & Buchanan, in the sum of $2,737 48,
for sundry matters properly chargeable in account; that William
Wyse made his will in the following words:
'Baltimore, 12th March, 1814, having at this perilous moment of
my life committed myself to the care of Almighty God, whom I
trust will receive my soul, I have only to request my affectionate
wife and son John, in case of a deficiency of my estate to support
and educate my children, that my real estate, and now known by
the name of the Deer Park, be disposed of for the maintenance of
said children, under the direction and management of my wife
Rachel, and John Wyse.'
The bill further states, that William Wyse afterwards, on the
first of April, 1814, died so indebted, seised and possessed of a
large real and personal estate, leaving a widow Rachel Wyse, and
these defendants John M., William A., Eliza, Margaretta, Ed-
|
|
|
|
|
|
|
|
 |
