hands of executors or administrators-assets, sub modo or conditional assets:" Gilchrist, J., etc., v. Filyau and Wife, 2 Fla. 99. They are assets for the payment of debts in all cases where the personal estate is exhausted, and may become so before. The act of the seventeenth of February, 1833, sec. 4, Duval Comp. 137, Thomp. Dig. 203, note 3, enacts "that the judge of probate Dr officer discharging the functions of ordinary, may order and decree a sale (in like manner as to supply the deficiency of personal assets) of the real estate of any deceased person, in preference to a sale of slaves where it may be necessary for the payment of just and lawful debts, or demands against his estate, and when it may be deemed most beneficial to the heirs, legal representatives, or devisees of the estate." The act of March 4, 1841, Thomp. Dig. 203, 204, note 6, declares that it shall be lawful for any administrator of any deceased intestate, or the executor of any deceased testator, who has not power, by the will of the testator, to sell real estate for the purpose of paying debts, or to make more equal distribution amongst the heirs or devisees or legatees, to file a petition in the circuit court of the county in which the letters of administration or letters testamentary were granted, etc., for the sale of the real estate." This act is set forth, and the views of this court so fully expressed upon it, in Gilchrist, J., etc., v. Filyau and Wife, 2 Fla. 96-100, above cited, that it is deemed unnecessary to enlarge upon it here. This court, in that case, held that it did not repeal the act of 1833, further than changing the mode by which executors and administrators were enabled to sell real estate for the payment of debts where there is a deficiency of personal assets; on the contrary, that the law of 1841 is a virtual affirmance of that of 1833, which asserts that lands shall be assets; indeed, its provisions, as there held, are more extensive, as it enables an executor or administrator to sell real estate to make more equal distribution, etc. It is clearly the duty of the executor or administrator, in case there should be a failure of personal assets, to make application for the sale of lands in the mode pointed out. It is not a matter with him (said the court) of mere discretion; being assets, they must carry with them the incidents of assets; the rents and profits of the land constitute a fund for the payment of creditors, and it is obvious that the law intended that the whole estate should be subject to the payment of debts: 2 Fla. 97, supra. Upon the death of the ancestor, the fee vests in the heir by our statute of descents, but he takes it subject to the debts of the testator or intestate. If

the testator or intestate has entered into any written agreement or contract for the conveyance of real estate (in this state), the executor or administrator (and not the heir) is by statute authorized and empowered to execute such conveyance.

Had the law in these respects been the same in England that it is here, we think that the ruling of the courts there would, in a case like this, have been different. They hold that where any new person is either to be better or worse by the execution, there must be a scire facias, because he is a stranger, to make him a party to the judgment. As in the case of an executor or administrator: Pennoir v. Brace, 1 Salk. 319; S. C., sub nom. Penoyer v. Brace, 1 Ld. Raym. 244, Holt, C. J., held that a capias, or fieri facias, being in the personalty, might survive, and might be sued against the survivors, without a scire facias; otherwise of an elegit, for there the heir is to be contributary: Id., citing 2 Inst. 471; Williams v. Keinshame, 2 Dyer, 175; Mad. Ca. 138; and Williams v. Cary, 4 Mod. 404.

Now an executor or administrator should be made a party to a scire facias here, for the same reason, viz., because he is contributary, and he is a new person, a stranger to the judgment, and to be better or worse by the execution; and it is laid down as a general rule, that, in all cases where the inheritance or freehold is affected, the tenant of the freehold is to be made a party: 8 Bac. Abr., ed. 1848, p. 612. Yelverton says, page 209, supra," the executor must be made a party, that he may plead in salvation of the testator's goods." Is it not quite as important that he should have an opportunity to plead in salvation of the testator's lands, where they fall into his hands as assets-assets for the payment of debts, and it may be for distribution? He can not plead plene administravit, until the real, as well as personal, assets have been exhausted; he is required to pay all the debts of the estate, which are fairly and justly due, and the order in which they are to be paid is prescribed. First, the necessary funeral expenses; debts due for board and lodging during the last sickness of the deceased; next, physicians' and surgeons' bills, and debts incurred for nursing and other attendance, and for medicines by an apothecary, during the last sickness of the deceased; next, judgments of record, rendered and docketed in this state in the life-time of the deceased, and all debts due the state; and finally, all other debts, whether by specialty or otherwise, without distinction of rank: Thomp. Dig. 206, notes 3, 4; Duval's Comp. 175, 186.

The lands are, therefore, assets in the hands of the executors, for the payment of this very judgment, if it has not been paid, or is not by law deemed to be paid, and is not otherwise barred; and if the personal assets in their hands can not be reached in this case, because, as contended, the judgment does not survive as to them—yet it does, by the rules of the English laws, survive as to the realty; and these executors, standing in the place of the heirs in that regard, so far as the debts due by the estate are concerned, they should have been made parties to this scire facias, and had an opportunity to plead in salvation of these lands.

Whether it was necessary that the heirs and terre-tenants should have been made parties or not, may be more questionable; it may be proper to remark here, that if these lands can be considered assets in their hands for the payment of this debt, then they are persons, other than executors, in charge of the estate, and are properly made parties to this proceeding; but if the lands are not assets in their hands for the payment of the debt, then the scire facias will not lie against them. We have seen, that if "they have the estate itself," as is contended, it is subject to the payment of this debt, and the executors hold it as assets for that purpose, and have a right to the rents and profits; they hold it not only for the payment of this debt in particular, but for the payment of all the debts of the testator, which were due or owing at his death, and not yet paid, or barred by any statute of limitation, and the heirs, so far as they are in charge of it, hold it for the same purpose.

In the case of Reynolds, Adm'r, et al. v. Henderson, Adm'r, 2 Gilm. 118, which was a scire facias against the heirs, terre-tenants, and administrator, to enforce the payment of a judgment rendered against the intestate in his life-time, where the question of lien arose as here, service was upon all, and held regular, and we so consider it in this case.

In the case of Bell et al. v. The Heirs of Robinson, 1 Stew. 193, 195, the chief justice, delivering the opinion of the court, said: "Our statute of 1812 gives to judgments and decrees a lien on the lands and tenements, etc., and directs that the clerk shall frame the execution accordingly." The clerks of our courts, without any such express direction by statute, have framed an execution to meet the provisions of our statutes, which subject lands to levy and sale on execution, and this is in accordance with a rule of law as old as the institution of a court of chancery, that where a case arose, and there was no writ to suit it, the clerks in chancery should frame one.

We do not, therefore, perceive any insuperable difficulty, were it necessary in such a case as this, again to change the form of the execution, so as to make it reach either the real or personal, or both, in the hands of the executor or administrator. We are not so strongly attached to technical rules, as to be unwilling to overturn them, when they stand in the way of the administration of substantial justice; and our statutes have opened a way for us to do so. Whether, however, such a change in the process may be necessary, or can be made, we shall leave to be decided when a proper case shall arise, and the question shall be directly presented.

From the view we have taken of this case, we consider the plea a good bar to the action; but were it otherwise, we should feel constrained to act in consonance with the rule, that, upon demurrer, the court will give judgment for the party who, on the whole case, appears to be entitled to it, and against the party who committed the first error: Egberts v. Dibble, 3 McLean, 86; Greathouse v. Dunlap, Id. 303; Rosenberg v. McKaine, 3 Rich. L. 145; Parkhill v. The Union Bank, 1 Fla. 131; Steph. on PI. 144; 1 Ch. Pl. 707, and authorities there cited in note 1096; and for reasons above stated, adjudge the declaration bad.

The judgment of the court below is therefore affirmed, with costs.

LIABILITY OF LAND TO EXECUTION AT COMMON LAW, and under the early English statues: See Bank of Utica v. Mersereau, 49 Am. Dec. 189, and note.

SCIRE FACIAS LIES TO MAKE EXECUTORS PARTIES, WHEN: See Dibble v. Taylor, 42 Am. Dec. 368; also Hanson v. Barnes' Lessee, 22 Id. 322. As to when a sci. fa. should name the terre-tenants, see Chahoon v. Hollenback, 16 Id. 587.

AT COMMON LAW, EXECUTOR OR ADMINISTRATOR COULD NOT SELL REAL ESTATE of the deceased for the payment of his debts, unless expressly charged for that purpose: Ticknor v. Harris, 40 Am. Dec. 186.

DEATH OF DEFENDANT, EFFECT OF, ON JUDGMENT LIEN: See Ex parte Dixon, 12 Am. Dec. 92; Jones v. Jones, 18 Id. 327; Coombs v. Jordan, 22 Id. 236. DEMURRER BRINGS WHOLE RECORD BEFORE COURT, and upon examination judgment will be given against a party who committed the first fault: Donnell v. Jones, 48 Am. Dec. 59, and note.

CARPENTER V. MCBRIDE.

[3 FLORIDA, 292.]

GUARDIAN CAN DO NOTHING TO PREJUDICE HIS WARD.

WHERE GUARDIAN TRANSFERS OBLIGATION DUE WARD IN PAYMENT OF HIS OWN DEBT, the purchaser, if he has notice, takes it at his peril, and the ward can charge him with the obligation.

PERSONS ACQUIRING PROPERTY BOUND BY TRUST, WITH NOTICE of the trust, are considered as trustees.

INFANT WARDS MAY AFFIRM OR DISAFFIRM TRANSFER BY GUARDIAN of an obligation due them, on arriving at age, and may pursue the trust fund.

APPEAL from a decree of the Leon circuit court. The opinion states the case.

By Court, HAWKINS, J. The complainants in this case come into court and claim the proceeds of what is termed the McBride obligation, transferred by A. R. S. Hunter to Leigh Read, in part payment for lands and negroes sold by Read to Hunter. This instrument is in the following words:

"EXHIBIT F.-Condition of a bargain and cale made and entered into between Archibald R. S. and James M. Hunter and A. R. S. Hunter, guardian of William H., Hiram S., and Grace Fenton Hunter, minor heirs of Adam Hunter, late of the county of Gadsden, deceased, of the one part, and Joseph McBride, of the county aforesaid (all of the territory of Florida), of the other part, witnesseth: That the said parties of the first part have sold to said McBride all the land, negroes, stock, and every other thing or things upon or belonging to said plantation and premises belonging to said estate, and hereby bind themselves in the sum of twenty thousand dollars to make, or cause to be made, to him good and sufficient titles to the property aforesaid, as soon as it can legally be done; and said McBride shall give them (or deposit in the clerk's office) his notes (with security) for fourteen thousand dollars (deducting or settling what they may owe him), payable at the following times, viz.: six thousand dollars on the first of May, 1839, two thousand on the first of May, 1840, two thousand on the first of May, 1841, two thousand on the first of May, 1842, and two thousand on the first of May, 1843, all with interest from the first of May, next; and said McBride binds himself in the sum of twenty thousand dollars to give, or cause to be given, the before-described notes whenever the parties aforesaid shall make, or cause to be made, to him good and sufficient titles and bills of sale for