John Whitaker vs. William Patton, Adm'r, et al., 1 Port. 9

By Mr. Justice Saffold. This is a proceeding under statute, to subject the real estate of L.

Robinson, deceased, to the payment of a judgment, obtained against Patton, administrator of his estate, by Whitaker, on which an execution had issued, and been returned, “no property found.” Whitaker filed, in the Circuit Court of Madison county, where this judgment was had — a suggestion of the facts against'the said administrator and the heirs of his intestate — alleging, that Robinson died seized of a largo real estate, situate in Madison county, and that it had descended to Panihie iilobinson, widow and relict of said'deceived, John ¡¡¿sbr'sci»

Martha Robinson, William RcMnsoiq Chowy ^ .wi tori, v/Lib of Modah Morion, and Fanny Di::hr:/r.í¡í, xrife of John .hichercoD: also stating the subsequent death of Cherry Norton, Wl that Rodah Horton held as tenant by the curtesy j that the persons above mentioned, os tease to whom the estate descended, were the children and hetrs of Robinson; and that the administrator had not applied to the County Court for a sale of the lands,, in order to pay off the debts of his intestate ; that such sale was necessary, and therefore prayed a scire facias, accord ing to the statute, against the administrator and the heirs, requiring them to shew cause why the said real estate should not be subject to execution.

Afterwards, on the 28th September, 1828, the writ of sci. fa. was accordingly issued, stating the facts as above suggested, and praying an order of sale for the aforesaid purposes. The original sci. fa. not having been served on all the defendants, an alias issued, and by means of the two, service was effected on the defendants. None of the persons, however, named as “ the children and heirs of the deceased,” were personally served with process : nor is it any where suggested that they .were infants or minors: but the sci. fa. .vas executed on I|or-ton, as guardian of the hei"c of L.

If Robinson, in April, 1829, Und a.lciv.crd.j, in ¡.he i’’o\ c..l w 'NotíÚ/.j, on motion, the court mg chkcfi ú .-1, b'-t ■- ’ whircrcef, to be guardian, cd t/hrg to Jchma the sth. f, m appears, that the administrator, and the Ipko, fc/ ISrui» the guardian of the latter, pleaded to the sdre fadas^ that the administrator had made to the county court, a report — (but which report, the transcript states, is not on file, in the clerk’s office, nor is it set out or defined in the plc{i.) The plea then > proceeds with an averment, that the said suit, in said report mentioned, was still pending, and undetermined, and concludes with a verification, &c.

To this plea, the plaintiff demurred, which was overfuled, and judgment given for defendants. The plaintiff now assigns for error, that the pica contains nothing in bar of the s ice facias, and that the court erred ' in overruling the demurrer. It is not contended, that the plea contains any matter constituting a bar to the remedy sought by the scire facias; indeed, (without the report, referred to in it,) it neither avers or defines any thing, from which we can infer the nature of the defence intended to be set up.

But, it is insisted, on the part of the defendants, that, admitting the plea to be insufficient, the scire facias is defective also, in not averring that the children of the intestate, (who, by the subsequent order of the court, are represented by guardian,) were minors, and that the plaintiff’s demurrer should be visited onhis own defective pleading; that the scire facias being thus insufficient, the judgment was, therefore, properly rendered for the defendants. These proceedings are understood to have been had, un¿}er tjie statute of 1828.

That act authorises a judgment .. creditor, in a case like this, to file a suggestion in the clerk’s office, of the facts ; setting out the names of the personal re-, presentatives and heirs, and to sue out a scire facias thereon, against such executor or administrator and heirs, to show causé, &c.

Nothing is expressed in that act, respectingthe necessity of shewing, either by the suggestion or the scire facias, whether the heirs be infants or adults ; but, according to the rules of justice, and by legal analogy, particularly % comparison with the1 statute of 1822, the record must, in some way, show the fact of infancy, if it exist, as well as the names and condition, in other respects, of the heirs or .devisees: and, if equally incompetent to represent themselves, they must have the aid of one who is. The

section of the statute, last referred to, prescribes the mode of proceeding, by án executor or administrator, to obtain authority to sell real estate, for the payment of debts, or to make more equal distribution among the heirs and devisees, &c. This is directed to be, by petition to the county court, setting out, among other things, the names of the heirs or devisees, and particularly stating, which are of age, and which are infants or femes covert.

In as much, however, as the latter statute, under which this proceeding was had, does not express the same requisition, as a judgment creditor is not presumed to have, as ’intimate knowledge of the facts of infancy, as the personal representative, and as it may. be inferred, that the Circuit Court had before it a legal showing, whether or not these heirs were infants, before' making the appointment of a guardian, ad litem, to defend them, we are of opinion, that the defect, if any, in the suggestion and scire facias, has been cured, The question, however, does not depend alone on this view of the case.

The' person thus appointed to defend as guardian,, appeared and made defence, by pleading in bar to the scire facias, whereby he has waved any objection that otherwise might have been urged by him for the want of service of process on the minors, or as to any uncertainty respecting the fact of their being such.

We should, therefore, be inclined to reverse and rem’and the cause, but for a defect in the writ of error, which has attracted our notice; it is, that the guardian of these supposed minors, on whom devolved the most valuable interest in contest, is not a party to the writ of error — so that his wards are entirely unrepresented in this court; for which, unless terms be agreed on by the parties, the writ of error must be dismissed. Aik. D. 156 s. 17. Aik.D.g-16.