Nancy J. Turney, Admrx of the estate of J. Turney, deceased, Pltff in Error, v. A. B. Gates, Deft in Error.
ERROR TO JO DAVIESS.
It is erroneous, in reviving a judgment against an administrator, to award an execution against the goods and chattels, lands and tenements of the intestate.
In such a case, where execution was not issued on the judgment against the intestate within a year and a day, the lien on the lands of the intesiate was lost.
The proper order would he to revive ttie judgment against the administrator, to he paid in the due course of administration.
In the distribution of the assets of deceased persons, under our statute, judgment creditors without a hen, and simple contract creditors, stand upon the same footing.
*144This was a proceeding by Scire Facias, in the Jo Daviess Circuit Court, to revive a judgment theretofore rendered in favor of the defendant in error, at the March term, 1842, of said Court, against John Turney, who afterwards deceased. The Sci. Fa. issued against the present plaintiff in error, as administratrix of John Turney. The cause was heard before Thomas C. Browne, Justice, at the October term, 1844, a default was taken, and a judgment was rendered against the plaintiff in error, reviving the former judgment, and ordering that execution issue “against the goods and chattels, lands and tenements, rights, credits, and effects of the said John Turney, in the hands of the said administratrix to be administered, with costs of suit,” &c.
The administratrix brings the cause to this Court, assigning for error, the rendition of judgment on the Sci. Fa. against the lands and tenements of the intestate, and in awarding execution, &c. It does not appear that any execution had issued upon the judgment against the intestate within a year and a day.
The writ of error herein, was issued in November, 1847.
Van H, Higgins, submitted this cause to the Court, ex parte, on the errors joined.
Treat, C. J.
Gates recovered a judgment against Turney, in March, 1842. No execution was issued thereon within a year. Turney died in 1844; and, in 1846, Gates sued out a scire facias to revive the judgment against his administratrix. An order was entered in that proceeding, that the judgment stand revived against the administratrix, and that the plaintiff have execution against the goods and chattels, lands and tenements of the intestate. The order was erroneous. The plaintiff was not entitled to execution on the judgment. He lost his lien on the lands of the intestate, by failing to sue out an execution within the year. The proper order would have been, that the judgment be revived against the administratrix, to be paid by her in the due course of administration. Welch v. Wallace, 3 Gilman, 490. In the distribution of the assets of deceased persons, under our statute, judgment creditors without a lien and simple contract creditors are put on the same footing. Paschall v. Hailman, 4 Gil., 285.
The judgment of the Circuit Court will be reversed, with costs, and the cause remanded for further proceedings.
Judgment reversed.