|
|
|
|
|
|
|
310 COOMBS v. JORDAN.
the full extent of the English law; and, in some instances, appa-
rently in accordance with the previously settled principles in rela-
tion to imperfect legal titles and equitable interests, carried farther
as to such interests; although nothing more than the legal title or
equitable interest of the defendant could, in any case, be sold; as
to which the purchaser is considered as standing in the place of
the defendant. And therefore, it has been held, that a real estate
held intail could not be subjected to the payment of the debts of
the tenant intail further than to the extent of his interest; so that,
after his death, the heir intail should take the estate, as by the law
of England, entirely unincumbered with any such liability, (t)
By this statute of 1732, 'the houses, lands, negroes, and other
hereditaments and real estate,' belonging to any person indebted,
are made liable for all his just debts. The lien which a creditor
obtains by his judgment upon the real estate of his debtor, arises
as a necessary consequence from this liability. Therefore, such a
lien only fastens upon that which may properly be denominated
real estate; because by the statute of frauds it is declared, that no
writ of execution shall bind the property of the goods of the party
against whom it issued, but from the time of its being delivered to
the sheriff. In reference to this distinction, therefore, it may often
be necessary to ascertain whether the property of the debtor be, in
fact, real estate or not.
It may also frequently become necessary to ascertain whether
the thing be real or personal estate, not only with a view to the
nature and commencement of the lien by which it is proposed to
be bound; but also in reference to its ownership, so as to shew
whether it can be, in any manner, liable to be taken in execution
under the writ by virtue of which it may be attempted to be sold.
For, no real estate can be bound by a judicial lien but that which
belongs to the defendant; nor can any real or personal estate but
his be taken in execution. Hence, in reference to the parties to
the judgment, it may be necessary to ascertain whether the thing
has been so incorporated with the inheritance as to have Tested in
the landlord, or to have passed to the heir, or him in reversion or
remainder; or whether the thing be one of those kinds of fixtures
which a tenant may remove during his term; or which, as per-
sonal estate has vested in the particular tenant, or has passed to
the executor or administrator of the deceased owner of the land.
(t) Glib. Execu. 41, 42; Ridgely v. McLaughlin, 8 H. & McH. 220.
|
|
|
|
|
|
|
|
 |
