Although by the law of Alabama, where an execution has issued
during the lifetime of a defendant but has not been actually
levied, an alias or pluries may go after his death, and the
personal estate of the deceased levied upon and sold to satisfy the
judgment, yet this is not so with respect to the real estate.
By the common law, the writ of
fieri facias had
relation back to its
teste, and if the execution was
tested during the lifetime of a deceased defendant, it might be
taken out and levied upon his goods and chattels after his
death.
But if an execution issues and bears
teste after the
death of the defendant, it is irregular and void, and cannot be
enforced against either the real or personal property of the
defendant. The judgment must first be revived against the heirs or
devisees in the one case, or personal representatives in the
other.
Such is the settled law where there is but one defendant.
Where there are two defendants, one of whom has died, the
judgment cannot be
Page 45 U. S. 59
enforced by execution against the real estate of the survivor
alone, and as it has to issue against the real estate of both, the
real estate of the deceased is protected by the same law which
would govern the case if he had been the sole defendant. The
judgment must be revived by
scire facias.
Before and since the Statute of Westminster 2d (which subjected
lands to an
elegit), a judgment against two defendants
survived against the personal estate of the survivor, and execution
could be taken out against him within a year without a
scire
facias.
But before the real estate of the deceased can be subjected to
execution, the judgment, which does not survive as to the real
estate, must be revived against the surviving defendant and against
the heirs, devisees, and terre-tenants of the deceased.
The interest of new parties would otherwise be liable to be
suddenly divested without notice.
In these views the highest court of the State of Alabama
concurs. (
See 6 Ala. 657.)
This was an action of ejectment brought by Erwin, the plaintiff
in error, to recover a lot in the City of Mobile, known as
Hitchcock's cotton press, bounded on the north by Main Street, on
the east by Water Street, on the south by Massachusetts Street, and
on the west by Royal Street, under the following state of
facts.
Prior to November, 1836, Henry Hitchcock was seized and
possessed of the above lot, and on 2 November, 1836, a judgment was
recovered against him in the Circuit Court of Alabama for Mobile
County by William McGehee to the use of Abner McGehee.
By the laws of Alabama, this judgment was a lien upon the
defendants' real estate.
On 21 December, 1836, Hitchcock sued out a writ of error to the
Supreme Court of Alabama, giving the usual bond, with Robert D.
James as surety, whereby the judgment was superseded.
On 23 June, 1838, the judgment of the circuit court was affirmed
in the supreme court, which affirmance, by the laws of Alabama,
operated as a judgment on the bond in error, against both parties
obligors.
On 14 July, 1838, Hitchcock executed a mortgage of the lot in
question to Cowperthwaite, Dunlap, and Cope, to secure the payment
of a debt due to them.
On 18 August, 1838, a
fi. fa. issued from the circuit
court clerk's office, on the affirmed judgment against H. Hitchcock
and Robert D. James, his security, which writ came to the hands of
the Sheriff of Mobile County, being for the amount of the debt,
besides the ten percent damages. The sheriff endorsed that he
received this execution on 20 August, and levied the same on
certain lots in Mobile, as the property of Robert D. James, and
returned it to the fall term.
On 10 October, 1838, Hitchcock, with the consent of
Page 45 U. S. 60
the mortgagees, leased the property to Mansoney and Hurtell for
a term of five years.
On 29 November, 1838, a
venditioni exponas issued to
the sheriff, commanding him to sell the property, on which he had
levied, as shown by his return. To this
venditioni exponas
he returned that he had advertised the property for sale and that
on 2 March, 1839, all further proceedings had been stopped by an
injunction.
On 2 March, 1839, Henry Hitchcock filed in chancery a bill
against McGehee, praying, for causes shown in the bill, relief
against the judgment at law and that the same should be enjoined.
On this bill an order was made for an injunction in the following
words:
"On the complainant's executing bond, with good and sufficient
security, in double the amount of the judgment at law, let an
injunction issue agreeably to the prayer of the bill."
"P. T. HARRIS"
"28 February, 1839"
"To the Clerk of the Circuit Court of Mobile County,
Alabama"
The complainant, Hitchcock, filed a bond by himself and William
Crawford, as his security, in the penal sum of $8,404, payable to
McGehee, dated 2 March, 1839, with a condition which, after
reciting the rendition of the judgment, the filing the bill, and
granting of the injunction &c., ran in these words:
"Now therefore, if the said Henry Hitchcock shall pay and
satisfy all damages that the defendant McGehee may sustain by the
wrongful exhibition of said bill, and in all things abide by and
perform the ultimate decree which may be rendered in the cause,
then this obligation to be void and of no effect, otherwise to be
and remain in full force and virtue."
A writ of injunction issued on 2 March, 1839, commanding the
sheriff to stay proceedings on the execution, on which he returned
that on the same day he desisted from all farther proceedings, and
returned the execution as enjoined.
On 12 August, 1839, Hitchcock died.
At the fall term of the chancery court, on 25 November, 1839,
the following order was made in the cause:
"HITCHCOCK v. McGEHEE"
"This day came the defendant, by his solicitor, and suggests to
the court that the complainant has died since the last term of this
court, and thereupon it is ordered, on motion of defendant's
counsel, that the representatives of the complainant revive the
proceedings by bill against the defendant by 1 April next, or
Page 45 U. S. 61
the injunction shall be from thence dissolved, and the defendant
have leave to proceed at law."
At the Spring term, 1840, 22f May, 1840, the following order was
made:
"At the last term of this Court an order was made suggesting the
death of the complainant, and that unless the suit be revived on or
before the first day of the next term of said court, that the
injunction be dissolved, and no party complainant being made, it is
ordered that the suit abate, and that the complainant's
administrator and heirs and security on the injunction bond pay the
costs."
Hitchcock, by his will, bequeathed all his real and personal
property to his wife, as trustee, with authority to make public or
private sales and conveyances for payment of debts, and constituted
her executrix.
On 8 July, 1840, Mrs. Hitchcock, without having taken out
letters testamentary on the will, made an absolute sale and
conveyance of the lot in question to Cowperthwaite &c., subject
to the lease above mentioned.
On 10 July, 1840, an alias
fi. fa. issued on the
affirmed judgment at law against Henry Hitchcock and Robert D.
James for the amount of the debt and ten percent damages, given on
affirmance, which came to the hands of the Sheriff of Mobile
County, on which he returned that he had levied on the land (now
the subject of this action of ejectment) as the property of Henry
Hitchcock, pointed out to him by Isaac H. Erwin, executor of Henry
Hitchcock, deceased, and that on the first Monday of November,
1840, he had sold the said land to James Erwin, who was the highest
bidder, for four thousand five hundred dollars.
On 10 February, 1841, the tenants attorned to Cowperthwaite
&c., as landlords.
On 3 March, 1841, Erwin brought this suit against the tenants,
who thereupon attorned to him and agreed to hold under him as
landlord.
On 8 September, 1841, Cowperthwaite &c., conveyed all their
estate and interest in the premises to Dundas and others, the
present defendants in error, who, on 22 March, 1842, applied to the
court to be admitted into the consent rule and to defend the action
as landlords on filing certain affidavits. This motion was resisted
by the plaintiff Erwin and also by the tenants, but in March, 1843,
the court admitted them to defend the suit. Whereupon the cause
went to trial and, under the instructions of the court, the jury
found a verdict for the defendants.
The plaintiff took the two following bills of exceptions.
"First Exception. Be it remembered, that at the Spring term,
1843, of this Court, James Dundas, Mordecai D. Lewis, Robert L.
Page 45 U. S. 62
Pittfield, Samuel W. Jones, and Robert Howell, appeared before
the court by their counsel and filed the affidavit of H. Barney,
which is made part of this bill of exceptions, and moved the court
to be admitted to appear and defend the action against the
plaintiff by entering into the consent rule and pleading. The
tenants in possession, Hurtell, Mansoney, and Griffiths, resisted
the said motion and showed cause on oath against the same, which
showing, which is on file, is made a part of this bill of
exceptions, together with the documents thereto appertaining and
referred to, and the said motion was also resisted by the
plaintiff. Whereupon, the said motion coming on the be heard, the
same was argued, and the hearing of said motion was continued from
term to term till at this term, when the said motion was argued,
and upon argument had, the said motion of the said applicants,
claiming to be landlords, was granted, and the objections of the
said plaintiffs, and of the tenants thereto, were overruled. And
the said parties, admitted by the court to defend against the will
of the said plaintiff and tenants, and the said tenants thereupon,
refused to plead. For all which decisions of the court allowing
said motion, the plaintiff excepts, and prays this to be sealed as
a bill of exceptions, which is done accordingly."
"[Signed] J. McKINLEY [SEAL]"
"Second Exception. Be it remembered that on the trial of this
cause, on the issue joined between the said plaintiff and the said
James Dundas, Mordecai D. Lewis, Robert L. Pittfield, Samuel W.
Jones, and Robert Howell, who have appeared as landlords, and
entered into the consent rule and pleaded not guilty, the
plaintiff, to maintain the title, on his part, produced and gave in
evidence the proceedings had in the Circuit Court of Mobile County,
in the State of Alabama, in an action wherein William McGehee, use
of &c., was plaintiff, and Henry Hitchcock was defendant,
together with the judgment, executions, sheriff's returns &c.,
copies of all which are hereto annexed, marked A. Also the
proceedings of the Supreme Court of Alabama on the affirmance of
said judgment, a copy of which is hereto annexed, marked B. Also
the record of the proceedings in a chancery suit, wherein the said
judgment was enjoined, the injunction &c., a copy of which is
herewith, marked C. And the sheriff's deed on the sale of the
property in controversy by the Sheriff of Mobile County, under the
said judgment, after the injunction was dissolved, a copy of which
is herewith, marked D, showing that the same was purchased by James
Erwin."
"It further appeared that Henry Hitchcock died on 13 August,
1839, that at and before the time of the rendition of the
judgments, he owned in fee simple and was in the possession of the
property sued for and sold by the sheriff, and continued so till
his
Page 45 U. S. 63
death, except that he executed a mortgage on 14 August, 1838, by
which he conveyed the said land to Messrs. Dunlap, Cope, and
Cowperthwaite, under whom the defendants claim title."
"Upon the evidence offered by the plaintiff, the court
instructed the jury that the sale by the sheriff was irregular and
void and that by such purchase at the sheriff's sale, under the
said judgments and the executions aforesaid and the injunction
proceedings, the sale and conveyance by the sheriff could convey no
title to the plaintiff, and that therefore he was not entitled to
recover in this action, to which the plaintiff excepts and prays
the court to seal this as a bill of exceptions, which is done
accordingly."
"[Signed] J. McKINLEY [SEAL]"
Upon these two exceptions the case came up to this Court.
Page 45 U. S. 74
MR. JUSTICE NELSON delivered the opinion of the Court.
The first execution issued upon the judgment in this case was
issued on 18 August, 1838, during the lifetime of both the
defendants, and was therefore regular and valid, but according to
the return of the sheriff, a levy was made only upon the property
of James, the surety, and was abandoned when the proceedings at law
were enjoined by the bill in chancery. We may therefore
Page 45 U. S. 75
lay this execution out of the case. For although, according to
the law of Alabama, when an execution has been issued during the
lifetime of a defendant but not executed, an alias or pluries may
go after his death, and the personal estate of the deceased be
levied on and sold to satisfy the judgment, for the reason that the
lien, thus regularly acquired under the first, is continued by the
succeeding writs down to the time of the sale, yet it appears to be
well settled there that the practice has no application to the
enforcement of executions against the real estate of the deceased.
Lucas v. Doe ex dem. Price, 4 Ala. 679, N.S.;
Masony
v. U.S. Bank, id., 735; and
Abercrombie v. Hall, 6
id. 657.
The validity of the plaintiff's title therefore must depend
altogether upon the execution issued on 10 July, 1840, nearly one
year after the death of Hitchcock, under and by virtue of which the
premises in question were sold and conveyed to him.
At common law, the writ of
fieri facias had relation to
its
teste, though in fact issued subsequently, and bound
the goods of the defendant from that date. The Act of 29 Car. II.
(reenacted in most of the states) took away this relation as
respected the rights of
bona fide purchasers and confined
its binding effect upon the goods as to them to the time of the
delivery of the writ to the sheriff, but as between the parties, it
remained as it stood at common law.
One consequence of this relation has been that if the execution
can be regularly tested in the lifetime of a deceased defendant, it
may be taken out and executed against his goods and chattels after
his death the same as if that event had not intervened.
The theory or fiction upon which this result is arrived at is
that the execution is taken in judgment of law to have been issued
at the time it bears date, however the fact may have been, and that
being prior to the death of the defendant and the goods being bound
from the teste, or presumed issuing, execution upon them is deemed
to have commenced in the lifetime of the party, and being an entire
thing, may be completed notwithstanding his death.
It is regarded in the same light as if delivered into the hands
of the sheriff and the goods bound in the lifetime of the
defendant, for the reason the officer being entitled to seize them
at any time after the teste, the death of the party could not alter
the right, and therefore, though the execution came to the sheriff
after, still if tested before, his death, the goods may be seized,
in whose hands soever they may be found.
In illustration of the extent to which this doctrine of relation
is carried, we may add, it has been frequently held that if a
judgment is entered in vacation against a defendant who died the
preceding term, an execution tested on a day in the said term prior
to the defendant's death may be sued out without a
scire
facias, for as the judgment signed in vacation relates
Page 45 U. S. 76
to and is considered as a judgment of the first day of the
preceding term, and as the execution relates to the judgment, it
may, in point of form, be considered as having commenced before the
death of the defendant on account of the date or
teste,
and, of course, upon the ground above stated, being an entire
thing, be completed afterwards.
There are numerous authorities establishing this view of the
case in respect to the enforcement of judgments and executions
against the goods or other personal estate of the defendant. Gilb.
on Ex. 14, 15; Bing. on Ex. 135, 136, 190; 2 Tidd's Pr. 1000, 9th
Lond. ed.; 7 T.R. 24; 6
id. 368.
This doctrine of relation is resorted to with a view of meeting
and avoiding the objection which might otherwise be alleged that
the rights of new parties, to-wit, the personal representatives of
the deceased, would be affected by the issuing and enforcement of
the writ upon the goods after the death of the defendant, who
should be called in and made parties to the record for the purpose
of enabling them to interpose a defense, if any, to the judgment.
For upon the construction given, the writ is regarded as having
been issued in the lifetime of the defendant himself, and inasmuch
as he had not taken any steps to arrest it before his death, no
good reason could be given for the interposition of his
representatives. They, upon the view taken, were not new parties,
nor parties at all to the proceedings, as the last step in the
appropriation of the goods to the satisfaction of the judgment had
been taken in the lifetime of their intestate.
The same doctrine, it seems, has been held to be equally
applicable to executions against the lands and tenements of a
deceased defendant, and therefore an
elegit bearing
teste before may be issued after his death, for the
reasons given in the case of executions against the goods and
chattels. 2 Tidd's Pr. 1034, 9th Lond. ed.
It is otherwise as respects the writ of extent issued against
the King's debtor, for as that cannot be antedated, but must bear
teste on the day it issues, it can only be issued against
the lands and goods in the lifetime of the defendant. Another writ
issues in case of his death to the sheriff to inquire into the
special circumstances before execution is enforced. 2 Tidd's Pr.
1049, 1053, 1057.
This series of cases, coming down from the earliest history of
the law on the subject, and the reasons assigned in support of
them, necessarily lead to the result -- and which has also been
confirmed by express decision in all courts where the authority of
the common law prevails -- that an execution issued and bearing
teste after the death of the defendant is irregular and
void, and cannot be enforced either against the real or personal
property of the defendant, until the judgment is revived against
the heirs or devisees in the one case, or personal representatives
in the other.
Page 45 U. S. 77
Fitz. N.B. 266;
Harwood v. Phillips, O. Bridgman's R.
473; Dyer's R. 766; Pl. 31; 2 Wms. Saund. 6, n. 1; 2 Ld.Raym. 849;
Archb.Pr. 282; 2
id. 88;
Woodcock v. Bennett, 1
Cow. 711; 10 Wend. 212;
Hildreth v. Thompson, 16 Mass.
191.
Mr. Williams, in his note to the case of
Jefferson v.
Morton, 2 Wms.Saund. 6, n. 1, says that if the defendant dies
within the year, the plaintiff cannot have an
elegit under
the Statute of Westm. 2 against his lands in the hands of his heirs
or terre-tenants, or generally any other execution, without a
scire facias against his heirs and terre-tenants, or
personal representatives, although he may in some cases have a
fieri facias against his goods in the hands of the
executors, referring to the exception to the general rule, when
issued in the lifetime of the defendant. So if the conusee dies
within the year, his executor cannot have an
elegit at
common law without a
scire facias, nor, if the conusor
dies within that time, can the conusee have an
elegit
against his heir or terre-tenant without such writ. The rule being,
he says, that where a new person who was not a party to the
judgment or recognizance derives a benefit or becomes chargeable to
the execution, there must be a
scire facias to make him a
party to the judgment or recognizance.
Penoyer v. Brace, 1
Ld.Raym. 245;
S.C. 1 Salk. 319, 320;
S.C. Carth.
404.
Such is, we apprehend, the settled law of the case where the
judgment is against one defendant, and the execution issued and
tested after his death.
In the case before us, the judgment upon which the execution was
issued and the lands sold had been rendered against two defendants,
one of whom was living at the time, but the lands sold belonged to
the estate of the deceased. And it is material to inquire whether,
in this aspect of the case, a different rule can be applied to the
sale.
At common law, a judgment or recognizance in the nature of a
judgment did not bind the lands of the defendant, nor did the
execution disturb the possession, as it went only against the goods
and chattels. The statute of Westm. 2, ch. 18 (13 Ed. I), first
subjected the lands of the debtor to execution on a judgment
recovered against him, and gave the plaintiff the writ of
elegit by virtue of which the sheriff seized and delivered
a moiety of the lands until the debt was levied out of the rents
and profits. Under this statute, a moiety of the land is deemed
bound from the rendition of the judgment. 2 Bac.Abr., tit.
Execution, 685; 3 Bl.Com. 418: 3 Co. 12;
The People v.
Haskins, 7 Wend. 466.
Before the statute, a judgment was considered a charge only upon
the personal estate of the defendant; since, a charge upon both the
real and personal estate.
Before and since the statute, in case of a judgment against two
defendants and the death of one, the charge of the judgment
survived against the personal estate of the survivor, and
execution
Page 45 U. S. 78
could be taken out against him within the year without a
scire facias, and the debt levied. 2 Tidd 1120; 1 Salk.
320; Bing. on Ex. 136;
Norton v. Lady Harvey, 2 Wms.Saund.
50, 51, n. 4, and 72, n. 3; 16 Mass. 193, n. 2; 1 Cow. 738.
The writ, however, must be in form against both, to correspond
with the record, but it could be executed against the goods of the
survivor only, or, on making a suggestion of the death upon the
record, the writ could be against the survivor alone.
Ibid.
And if the judgment against both defendants is founded upon
contract, the surviving defendant is entitled to contribution out
of the estate of the deceased, Bing. on Ex. 137, and cases cited;
if upon tort, it would be otherwise.
But since the statute, if the plaintiff seeks to enforce the
judgment against the real estate of the defendants in the case put,
he must revive it be
scire facias against the surviving
defendant, and the heirs, devisees, and terre-tenants of the
deceased before execution can regularly issue. For as to the real
estate of the defendants, the charge of the judgment does not
survive, and the execution must go against the lands of both; and
as it cannot be regularly issued against the deceased codefendant,
not be allowed to charge the estate in the hands of his heirs,
devisees, or terre-tenants, until they have notice, and an
opportunity to set up a defense, if any, to the judgment, a
scire facias is indispensable to the regularity of the
execution. 2 Wms.Saund. 51, n. 4; Bing. on Ex. 137, and cases
cited; 4 Mod. 316; 2 Co. 14
a; 1 Ld.Raym. 244;
S.C. 1 Salk. 320;
S.C. Carth. 404; 16 Mass. 193,
n.; 1 Cow. 711.
It will be seen, therefore, upon these authorities that the same
objections exist, both in principle and in reason, as it respects
the enforcement of a judgment against two by a sale of the real
estate on execution after the death of one which have been shown to
exist against the enforcement of a judgment against a single
defendant after his death. For as the charge of the judgment
against the lands does not survive, but continues upon the lands of
both after the death of one, the same as before, and cannot be
enforced against the real estate of the survivor alone, as in the
case of the personalty, and the execution must therefore be issued
against both if issued at all, it is obvious the lands of the
deceased, in that event, are as liable to be sold by the sheriff as
the lands of the survivor. The rights of the heirs and devisees,
and the reasons for protecting them by the
scire facias,
are the same in the one case as in the other, and when the law
disables the plaintiff from suing out execution against the real
estate on a judgment against one defendant after his death, it must
equally disable him from suing it out on a judgment against two,
after the death of one. Otherwise, in both cases, the interest of
new parties, upon whom the estate has fallen, or to whom it may
have passed, is liable to the suddenly and without notice divested
by the silent, and till then dormant, power of the
Page 45 U. S. 79
law; parties, too, who from their age and situation in life will
not unfrequently be the least qualified to understand and protect
these interests, being the children of the deceased defendant.
This writ of
scire facias is also made necessary in
order to secure the judgment in cases where the plaintiff has
neglected to take out execution within the year. And yet it has
always been held that, if taken out after the year, and sale under
it is valid, and the title of the purchaser protected. The
execution is not void, but voidable, and may be regularly enforced
unless set aside on motion.
In analogy to this course of decision, it has been argued that
an execution issued after the death of the party should not be
considered void, and the sale under it a nullity, and that the only
remedy should be on a motion to set it aside.
Before the Statute Westm. 2, already referred to (ch. 45), if
the plaintiff had neglected to take out execution within the year,
his only remedy was an action of debt on the judgment. The law
presumed it had been satisfied, and therefore drove the plaintiff
to a new original. 2 Tidd 1102; 1 Bing. on Ex. 123, n. This statute
extended to him the writ of
scire facias, by means of
which the judgment could be enforced after the year by execution,
and as the writ could thus be issued after the year by a
scire
facias, the judges held, if issued without, and the defendant
did not interpose and set it aside, it was an implied admission
that the judgment was unsatisfied and existed in full force. The
issuing, under the circumstances, was regarded simply as an
irregularity which it was competent for the party defendant to
waive.
It is apparent that the analogy between this class of cases and
the one under consideration is exceedingly remote and feeble, and
that they stand upon different and distinct grounds, and the
conclusions arrived at upon substantially different and distinct
considerations.
Another ground has been urged in support of the sale in this
case which deserves notice.
It has been argued that the grantees of lands sold on a judgment
against the grantor, or previous owner, through whom the title was
derived, where the sale confessedly would be valid, stand upon the
same footing as the heirs or devisees in the case of a sale after
the death of the defendant.
But the distinction between the two cases is manifest.
In the first place, the grantee, in making the purchase, is
presumed to have made the proper inquiry into the nature and
validity of his title, and therefore to have known of the existence
of the encumbrance, and to have taken the necessary precautionary
measures against it.
The sale on the execution cannot take him by surprise, with
ordinary attention to his rights.
And in the second place, the defendant in the execution, not
the
Page 45 U. S. 80
grantee, is the party most deeply interested in the proceeding,
for if his grantee, or any succeeding grantee under the title,
should be dispossessed by reason of a sale on a prior encumbrance
by judgment, he, the defendant in the execution, would be
answerable over upon his covenants of title.
The grantee therefore is neither exposed to a sale under the
judgment by surprise nor is he the party usually interested in the
sale. Upon the whole, without pursuing the examination farther, we
are satisfied that, according to the settled principles of the
common law and which are founded upon the most cogent and
satisfactory grounds, the execution having issued and bearing
teste in this case after the death of one of the
defendants, the judgment was irregular and void, and that the sale
and conveyance of the real estate of the deceased under it to the
plaintiff was a nullity.
We may further add that since this suit was commenced, and while
it was pending in the circuit court of the United States, the
highest court in the State of Alabama have had the same question
before them and have arrived at a similar result. 6 Ala. 657.
Judgment of the circuit court affirmed.
