1. A writ of
fieri facias, tested and issued after the
death of the party against whom the judgment is recovered is void
and confers no power on the ministerial officer to execute it.
Page 71 U. S. 238
2. The rule applies where the proceedings are commenced by
seizing property under a writ of attachment, under the laws of
Florida, as at the common law.
On a proceeding on foreign attachment, judgment had been
obtained in Florida, November 12, 1825, against St. Maxent, a
nonresident, but who owned certain lands in Escambia County there.
St. Maxent died on the 25th day of November, 1825. On the 26th day
of November, a
fieri facias was issued. The sheriff
returned it December 1, 1825, "levied on the land" in question.
Then followed a
venditioni exponas, but all proceedings
were stayed by injunction. Then, on the 21st of December, 1826, a
writ of
fieri facias against the said St. Maxent was
issued, directed to the marshal of the district, and under this the
land was sold and conveyed to J. K. Mitchell, or to persons from
whom he derived title. The heir of St. Maxent having brought
ejectment against Mitchell, the court, on the above state of facts,
gave judgment for the heir.
In this Court several questions were raised, among them, whether
the sale to Mitchell, under the circumstances above stated, was
valid.
Page 71 U. S. 242
MR. JUSTICE DAVIS delivered the opinion of the Court.
The solution of one question presented by the record is decisive
of this case. Does the writ of
fieri facias, tested and
issued after the death of the party against whom the judgment is
rendered, confer power on the ministerial officer to execute it?
That St. Maxent was the owner of the lands in controversy at the
time of his death, and the plaintiffs below are his heirs-at-law,
is admitted, but it is claimed that the title was divested by
certain proceedings in attachment against him in the courts of
Florida, which ripened into a judgment while he was alive. It is a
well settled principle of law, which has often received the
sanction of this Court, that the decree or judgment of a court,
having jurisdiction, is binding until reversed, and cannot be
collaterally attacked. But the defect in this case occurs after the
judgment, and is fatal to Mitchell's title, for purchasers at a
judicial sale are not protected, if the execution on which the sale
was made was void. Void process confers no right on the officer to
sell, and all acts done under it are absolute nullities.
The writ of
fieri facias on which Mitchell rests his
title, was tested after the death of St. Maxent, and according to a
familiar rule of the common law, it was therefore void. The death
of a defendant, before the test of an execution, compels the
plaintiff to sue out a writ of
scire facias, "for the
alteration of the person altereth the process." [
Footnote 1] The heirs, devisees, and
terre-tenants of the deceased must have
Page 71 U. S. 243
notice before an execution can regularly issue, for they are the
parties in interest, and should have an opportunity to interpose a
defense, if any they have, to the enforcement of the judgment.
Erwin's Lessee v. Dundas [
Footnote 2] is an authority in point, and it is
unnecessary to refer to any other.
But it is contended that the doctrines of that case have been
overturned by the decision of
Taylor v. Doe, reported in
13th Howard. This is an erroneous view of that decision. The court
held, in that case, that it is not necessary to revive a judgment
by
scire facias, where an execution regularly issued
during the life of the defendant had been levied on land, but that
the officer who had made the levy could proceed to sell, under a
venditioni exponas. That writ was regarded as a completion
of the previous execution, by which the property had been
appropriated, and not as an original or independent proceeding.
It was in the power of the Legislature of Florida to have
changed the rule on the subject of the test of process, but, having
failed to do it, and having adopted the common law of England, the
question in issue must be decided by the rules of the common law.
[
Footnote 3]
But it is insisted that the rules of the common law only attach
to suits prosecuted in the ordinary way, and do not apply where the
proceedings are commenced by seizing property under a writ of
attachment. This is a novel view, for the law of attachment, being
in derogation of the common law, courts are not inclined to extend
its provisions beyond the requirements of the statute authorizing
it. In Florida the service of the writ of attachment binds the
property, and retains it in custody of the law, for the benefit of
the attaching creditor, if he obtains a judgment and execution, and
the property is to be disposed of as in other cases of property
levied upon and taken in execution. [
Footnote 4]
As an execution is required, and the law is silent about the
manner of its issue, it follows that it is to be tested and
Page 71 U. S. 244
issued as writs of
fieri facias are on judgments
obtained through the usual methods of the common law.
The judgment of the court below is affirmed with
costs.
[
Footnote 1]
Bacon's Abridgment Title
"Scire Facias."
[
Footnote 2]
45 U. S. 4 How.
58.
[
Footnote 3]
Laws of Florida, 1822 to 1825, p. 136.
[
Footnote 4]
Id. 1823, p. 40.