Under the statute of Illinois which authorizes execution to
issue against the lands of a deceased debtor
provided that
the plaintiff in the execution shall give notice to the executor or
administrator,
if there he any, of the decedent -- a sale
without either such notice or
scire facias, as at the
common law (or proof that there were no executors?) is void. On a
question of title
under this statute, the burden of
proving that his purchase was after due notice rests with the
purchaser, the record of execution and sale not of itself raising a
presumption that notice was given.
Ransom brought ejectment against Williams in the Circuit Court
for the Northern District of Illinois. Both parties claimed title
from Galbraith. The plaintiff relied upon a sheriff's deed, made
pursuant to a sale under an execution upon a judgment against
Galbraith and others, obtained in the state court of Ogle County on
the 27th of March, 1841. The execution was issued on the 25th of
November, 1847, the sale made on the 25th of November, 1848, and
the deed executed on the 24th of July, 1849. The defendants claimed
under a deed from Galbraith and wife dated on the 31st of May,
1842. This deed contained a special covenant against the "claims of
all persons claiming, or to claim, by, through, or under him."
Galbraith died in 1843, and letters of administration upon his
estate were issued on the 25th of February in that year.
A statute of the State of Illinois, it is here necessary to say,
authorizes execution to issue against the lands and tenements of a
deceased judgment debtor,
"
provided, however, the plaintiff or plaintiffs in
execution, or his or their attorney, shall give to the executor or
administrator, if there be any, of said deceased person or persons,
at least three months' notice in writing, of the existence of said
judgment before the issuing of execution."
There was no proof that such notice had been given to the legal
representatives of Galbraith, but it was proved by the plaintiff
that the premises in controversy had been sold under a prior
execution, and that, on the motion of the judgment creditor, the
court
Page 69 U. S. 314
to which the execution was returned had set the sale aside,
quashed the execution, and ordered that another execution should
issue. This order was made on the 24th of September, 1847.
The court below charged the jury, that the want of proof of due
notice to the legal representatives of Galbraith, before the
issuing of the execution, under which the sale was made, was fatal
to the plaintiff's case.
The jury found accordingly, and the plaintiff excepted. The
correctness of the charge was the point on error here.
Page 69 U. S. 317
MR. JUSTICE SWAYNE delivered the opinion of the Court.
By the common law, the death of either party arrested all
further proceedings in the case. If the death occurred before
judgment, the suit abated. If there was but one defendant, and he
died after judgment, no execution could issue unless it was tested
before the death occurred. In such case, it was necessary to revive
the judgment by
scire facias. The statute of Westminster
2d (13 Edward I) first gave a remedy against the lands of judgment
debtors. The same rules applied to a writ of
elegit sued
out under that statute. If there was more than one defendant, and
one of them died, execution might issue against all, though it
could be executed only as to the survivors. It was so issued,
because it was necessary that it should conform to the record of
the judgment. [
Footnote 1]
The notice under the statute is cumulative. The plaintiff may
give it, or resort to the common law remedy by
scire
facias. Executions in Illinois are required to bear test on
the day they are issued. [
Footnote
2] When a defendant dies after judgment, and an execution is
subsequently issued without the notice required by the statute
having been given, or the
Page 69 U. S. 318
judgment revived by
scire facias, the execution is a
nullity, and all proceedings under it are void. [
Footnote 3]
The order of the court of Ogle County, that another execution
should issue, does not in our judgment affect the case. Upon the
death of Galbraith, the jurisdiction of the court as to him
terminated. He was no longer before the court. When the order was
made he had been dead more than four years. It does not appear that
his legal representatives were present, or had any knowledge of the
proceedings. The order was proper, and the execution was valid as
to the surviving defendants. As to them, the process might have
been executed. We cannot understand from the order, that the court
intended to affect the estate of Galbraith, or those claiming under
him. If such were the intention, the order having been made against
parties not shown to have been actually or constructively before
the court, was, so far as they are concerned, clearly void.
The authorities which require the fact of competent jurisdiction
to be presumed in certain cases have no application here. The
statute is in contravention of the common law, and hence to be
construed strictly. The notice is a substitute, and the only one
permitted for the proceeding otherwise indispensable, by
scire
facias. The provision is plain and imperative in its language,
and it is the duty of a court called upon the administer it, not
lightly to interpolate a qualification which the statute does not
contain.
The deed from Galbraith contains a special covenant against the
"claims of all persons, claiming, or to claim, by, through, or
under him." If the premises in controversy should be lost to the
defendants, his estate would be liable in damages; and his legal
representatives were entitled to all the time which the statute
allowed them after notice, to show, if they could, that the
collection of the judgment ought not to be enforced.
It is contended that it was incumbent on the defendants
Page 69 U. S. 319
to show that the proper notice had not been given. We cannot
take that view of the subject. The judgment survived only for the
preservation of its liens, and as the basis of future action. The
statutory notice, or its alternative -- a
scire facias --
was necessary to give it vitality for any other purpose. Upon the
death of the defendant being shown, any execution issued upon it
was, as to him,
prima facie void. This presumption could
be overcome only by showing either that no legal representative had
been appointed or that the notice required by the statute had been
given. The plaintiff asserted a title, and it was for him to show
everything necessary to maintain it. The rule on this subject is
thus laid down by Chief Justice Marshall: [
Footnote 4]
"It is a general principle that the party who sets up a title
must furnish the evidence necessary to support it. If the validity
of a deed depends upon an act
in pais, the party claiming
under that deed is as much bound to prove the performance of the
act as he would be bound to prove any matter of record on which its
vitality might depend. It forms a part of his title; it is a link
in the chain which is essential to its continuity, and which it is
incumbent on him to preserve. These facts should be examined by him
before he becomes a purchaser, and the evidence of them should be
preserved as a necessary muniment of title."
We understand the Supreme Court of Illinois to have ruled this
point in the same way. [
Footnote
5]
The instructions given in the circuit court were, in our
opinion, correct, and the
Judgment is affirmed with costs.
[
Footnote 1]
Woodcock v. Bennet, 1 Cowen 711;
Stymets v.
Brooks, 10 Wendell 207;
Erwin's Lessee v.
Dundas, 4 How. 77;
Brown v. Parker, 15
Ill. 307.
[
Footnote 2]
Brown v. Parker, 15 Ill. 309.
[
Footnote 3]
Picket v. Hartsock, 15 Ill. 279;
Brown v. Parker,
ibid., 307;
Finch v. Martin, 19
id. 111.
[
Footnote 4]
Williams v.
Peyton, 4 Wheat. 79;
See also Thatcher v.
Powell, 6 Wheat. 127.
[
Footnote 5]
Finch v. Martin, 19 Ill. 110.
