Adams v. Higgins

23 Fla. 13 | Fla. | 1887

Mr. Justice. Raney

delivered the opinion of the court.

I. This is an action of ejectment instituted July 20th, 1885, by the appellant as administrator de bonis non cum testamento annexo of John S. Adams, deceased, against Edwin Iliggins and Charles P. Lovell, to recover an undivided half interest in a parcel of land in Sumter county. Higgins pleaded not guilty, and Lovell’s plea denies any possession or control by himself or any one claiming under him at the time of the commencement of the action, and further disclaims any right, title, interest or possession in, to or of the land or any part thereof. By consent of parties the case was referred to Mr. Francis P. Fleming, an attorney at law, for trial. He gave judgment in favor of the defendants and overruled a motion of the plaintiff for a new trial, and the latter has appealed. The findings of the referee are set out in the statement. His conclusions of fact are fully supported by the testimony.

The controversy before us is between the appellant and Higgins, and the first question it involves is the effect of the amendment nunc pro tunc made by the Circuit Court of Duval county, November 28th, 1885, upon writs of scire facias issued July 23, 1885, of the judgments’ and writs of fieri facias mentioned in the findings of the referee, these judgments having been rendered, one November 3d and the other November 12th, 1879, and the executions having issued July 19th, 1880. These judgments and y?, fads were obtained when Driggs was administrator of the estate of John S. Adams, but when the sci. fa.’s issued and the amendments nunc pro tunc were made; the appellant was such administrator. The orders allowing the amendment nunc pro tunc wei’e appealed from, but affirmed by this court. Chas. S. Adams, Administrator, vs. ReQua for the use of Edwin Higgins, 22 Fla., 250. The land was purchased by Higgins at public sale made by the Sheriff of Sumter county, under the fi. fa’s, on the first Monday in September, 1880. Higgins was, at the time of the sale, the owner of both judgments. The deed from the Sheriff conveying the land to him bears date September 6th, 1880, and was recorded in the Sumter county records the next day.

The amendments are unquestionably amendments nunc pro tunc. No other construction can be given to the action of the Circuit Court considering the entire proceedings on the writs of scire facias.

Appellant insists that “ the judgments as originally rendered, upon which the executions were based, did not authorize a sale of these lands by the Sheriff, or any interest therein which belonged to John S. Adams at the time of his death,” and that “ the executions as they were when the lands were so sold did not authorize a levy upon or a sale of said lands, or any interest therein which belonged to John S. Adams at the time of his death.”

Mr. Freeman, in his work on Judgments, says that excepting the rights of third persons (none of which are involved in the case before us) a judgment entered nunc pro tunc must be everywhere received and enforced in the same manner and to the same extent as though entered at the proper time. Though, says he, an execution may have issued and proceedings under it culminated by the sale of property when there was nothing on the record to support it, yet the omission was one of evidence and not of fact, and the evidence being supplied in a' proper- mariner, full force 'and effect will be given to the fact as if the evidence had existed from the beginning. Ib.,67. The former of these two sentences from Mr. Freeman, so far as it speaks of the enforcement of a judgment entered nunc pro tuno, relates to one which had not been enforced, but the latter sentence relates to the effect of an entry nuno pro tuno of a judgment which had been previously enforced. As the judgment before us had been enforced previously to the amendment nuno fro tuno, it is apparent that what is said in the former sentence as to the enforcement has no application here. Of course, however, the enforcement made before the amendment must be in the same manuer as if the amendment had been made. The same author, in his work on Executions, states that the time within which an execution may be amended has no limit. A sale of property may have been made under execution and for years may have been confirmed by the silent acquiescence of all the parties in interest. After time has thus elapsed the execution may for the first time be made subject to objection for some amendable informality.

In such case the court, irrespective of the lapse of time, will either disregard the informality or order the execution to be amended. When the amendment is made the writ has'the same force as though issued in due form. Ib., 71. In Galloway vs. McKeithen, 5 Iredell, 12, Galloway and his wife, as administrators of Corbit, began an action of detinue against McKeithen on December 5th, 1838, to recover prop-, erty of their intestate’s estate. The defendant on the trial in 1844 objected to their recovering on the ground that they were not administrators of Corbit at the date of the writ. The facts were that at the March term, 1837, of the County Court, administration was granted to Galloway, but Mc-Keithen who opposed such grant appealed to the Superior Court, which, at the June term of the same year, ordered the administration should be granted to Galloway and his wife on their giving a bond in the penalty of $8,000, and that a writ of procedendo should issue to the County Court to.carry this order into effect. This writ did issue. The records of the County Court of December term, 1842 showed that the County Court omitted at the June term, 1837, to comply with the procedendo, and on motion it was ordered that the letters of administration issue to plaintiffs and a bond be taken, nunc pro tunc, and that the letters and bond should have relation and bear teste as of June term, 1837. The above record of December term, 1842, was introduced by defendants to show the facts, as from- the record of June term, 1837 ; as such record stood in 1844 it appeared that the letters were ordered and bond taken, although in fact no such entries had been then made. The plaintiffs were nonsuited, but the Supreme Conrt reversed the judgment and declared that when the record of 1837 was amended in 1842 it stood as if it had never been defective, and that the affidavits, motions and orders which were made in 1842 were not and ought not to have been incorporated into the amended record of the term of 1837, and were no part of it. In Graham vs. Linn, 4 B. Monroe, 17, whore there was a failure to extend a judgment on the record, but execution issued and was returned “nidia bona,” and afterwards an entry of the judgment was made nunc pro tunc, it is said that the object and effect of such an order is to furnish proper evidence of acts properly done by the court, but not properly exhibited by its record, and such evidence is furnished nunc pro\tunc for the very purpose of supporting those acts which, though the proper consequence of a judgment, would seem to be irregular and void because there is no proper evidence of the judgment. “ If the judgment be in fact rendered by the court, but not at.the time regularly and fully entered, *a fieri facias issued in pursuance of the judgment is not void, but voidable only and capable of complete validation by afterwards making a proper entry of the judgment on the record, showing when it was in fact rendered, entering it now for then. * * * Although, therefore, the writ of fieri facias in this case might-have been quashed on motion so long as no judgment appeared on the order book, yet the judgment might, if there were sufficient grounds for it, have been put there nunc pro tunc even during the pending of the motion with the effect of removing the ground of quashal and making good the writ and the acts done under it. And so if the entry nunc pro tunc were made on sufficient grounds during the pendency of this trial, such entry, read as a part of the record of the case in which it was made, would have removed all objections to the validity of the execution and the verity of the officer’s return thereon, so far as such objections were founded upon the mere fact that there was no judgment on the order book during the life of the execution.” The issue of execution and return of the Sheriff in another suit were relied on here as evidence of due diligence upon part of the plaintiffs and as entitling them to the remedy sought in the case in which the opinion was delivered; and it is a fact that there was an error made in a date stated in the order nunc pro tunc, and this was corrected on the trial of the second suit. See also Burnette vs. State, 14 Texas, 455. In Parker vs. Rugg, 9 Gray, 210, a judgment by default in favor of the latter against the former was adjudged in the common pleas at a term in 1885 or 1836, but by reason of Rugg’s omission to furnish the Clerk with the necessary paper's the record of the judgment was not completed until 1855'when the court ordered it to be done. At the same term in 1855 Rugg asked to plead this judgment in set-off to one entered against him in favor of Parker at the term in 1835 or 1836, and was permitted to do so. “ The Court of Common Pleas,” says the opinion, “ in ordering the record of the judgment of Rugg against Parker to be made up, rendered no new judgment, but only perfected the evidence of the judgment rendered at the December term, 1836. That judgment was therefore in existence at the time of the commencement of this action, and so a proper matter of set-off.”

In view of these authorities the effect of the amendment upon the judgment cannot be doubted ; it is to be regarded as if no defect had ever existed, and, in law, the only judgment “ originally rendered ” is that evidenced by the record as amended. We cannot now consider or assume that any other than a judgment such as the amended record shows was ever rendered or intended to be entered. In contemplation of law, no other judgment ever existed, either before, at or since the Sheriff’s sale, under the facts of this case—the rights of third persons not being involved.

In Higgins vs. Driggs, 21 Fla., 103, cited for appellant, the pi'ceeipe was Henry S. Higgins vs. J. S. Driggs, administrator of estate of J. S. Adams. The cause of action upon which the declaration was filed was simply a promissory note of “Ellen E. Adams, executrix of J. S. Adams;” a judgment was entered that the' plaintiff recover of the “ defendant as administratrix of J. S. Adams, deceased.” Upon this the Clerk issued an execution commanding the Sheriff that “ of the goods and chattels, lands and tenements of John S. Driggs as administrator of the estate of John S. Adams, deceased,” he make the amouut of the judgment. The plaintiff moved to amend the judgment “ so as to have’it read and appear of record as against the goods' and chattels, lands and tenements of John S. Adams,, deceased.” This motion was denied. The defendant moved to suspend the execution and it was so ordered. These rulings were affirmed, the first, because there was no cause of action against or binding the estate of John S. Adams, the promissory note being the mere personal obligation of Ellen E. Adams ; the second, because It did not appear upon the face of the execution whether it was to be satisfied out of the property of Driggs or the estate of J. S. Adams. As the cause of action was not one against the intestate, no judgment de bonis tesiatoris could have been properly pronounced, or be held to have been intended, and in view of this fact the suspension of the execution was also not only proper, but necessarily followed the refusal to amend the judgment. The more regular the execution had been upon its face the stronger and more urgent would have been the reason for suspending it in view of the protection which such regularity affords an officer executing the writ. Had, however, the declaration been upon a promissory note, made by John S. Adams, it cannot be doubted that the amendment of the judgment and likewise of the execution (if asked for) would have been allowed. The Judge who delivered the opinion in this case says, “ The praecipe, summons and declaration were also against Driggs, administrator of the estate of John S. Adams, and it would follow that upon proper proof the judgment should have been entered against John S. Driggs, as administrator of the estate of John S. Adams, to be levied of the goods, &e., * * * of John S. Adams, &c., and an amendment of any informality in the judgment ought to have been allowed.” If the declaration properly described the note of Mrs. Adams we do not see that there could have been any proper proof under it for a judgment de bonis testaloris, or, we may add, one de bonis p>ropriis. If his meaning is that the declaration did describe an indebtedness of John S. Adams and that if proper proof thereof had been produced the judgment de bonis tesiatoris should have been entered and the amendment allowed, his view sustains the action which this court has taken in affirming the amendment under discussion. The opiniou cites decisions affirming the validity of a judgment like that in Higgins vs. Driggs when rendered upon an obligation of the testator •or intestate, though not approving it as in due form. There is no inconsistency between the action of this court in Higgins vs. Driggs, and Adams vs. ReQua. The case •of Palmer vs. Palmer, 2 Conn., 462, an action of ejectment, is earnestly commended by counsel for appellant. In it the writ and declaration offered in evidence were in favor of Minor, “ administrator of the goods and estate of Ferris Palmer ; ” the judgment was, Minor, “administrator of the estate of Ferris Palmer, deceased,' plaintiff, against Palmer, defendant, in a plea of case demanding 75 dollars,” &c., and subsequently throughout the judgment the parties are described simply by the words “ plaintiff ” and “ defendant.” The execution recites, “ Whereas, Simeon II. Minor recovered ” judgment against Palmer and afterwards designates the parties by the words said “ creditor ” and said “ debtor.” Under this execution the land was set off to said Minor, under whom the plaintiff in ejectment claimed. It was held that thejudgmentwas in favor of Minor as administratorof Ferris Palmer,but that the execution was in favor of him individually, and that the levy on the land of the judgment debtor and other proceedings under the execution gave Minor no title. If the doctrine of this case is correct and applicable to one where the defendant is an administrator we think the effect of it is to sustain the original execution, if not the original judgments, as binding the estate of Adams. We may remark that in Branch vs. Branch, 6 Fla., 344, it is held that the words “ adm’r., Ac.,” are in themselves merely deseriptio persones as that to sue in a representative capacity one must describe himself and make his claim as administrator. We find nothing inconsistent with the view we ake of the case before us, in Averett vs. Thompson, 15 Ala., 678, cited by appellant,, where an execution leviable of the goods, &c., of “ William H. Thompson, administrator of James Colvett ” was held to authorize the sale of Thompson’s individual property. The view that the execution in Finley vs. Lee, 51 Ga., 482,. was “ in totidem verbis, ” or “ substantially ” the same as that now under consideration is, we submit, a mistake;. that execution wTas against the goods, &c., * * * of Thomas Howell, “ executor of William Finley, deceased,”' and the decree likewise against Thomas Howell, “ executor,” &c. The words quoted were unsuccessfully relied •upon to.support the idea that the decree did not bind How ell personally, nor the execution sale pass the title to his-individual property. In none of these cases, moreover, had there been any amendment nunc -pro tuna.

What we have said as to the effect of the amendment nunc pro tunc upon the judgments is equally true as to the amendment of the execution. We are not, however, prepared to say that a sale made of property of a decedent’s estate upon an execution framed in the language which these were in before the amendment was made, and which had been issued upon a judgment propérly entered against an administrator to be levied of the property of his intestate (which we are now bound to regard as the fact in this-case) would not be valid.

In deciding the question of the validity of the execution sales, we are bound to regard the writs of execution, whether we consider them either as amended or as in their original shape, as resting upon perfect judgments leviable of effects of the intestate Adams. Assuming that n’o-amend'ment of the executions was made, we yet have in each case, resting upon a perfect judgment against Hriggs, •as administrator, an execution to be levied of “ the goods and chattels, lands and tenements of John S. Driggs, as administrator of the estate of John S. Adams, deceased.” Though not in the form it should have been, and though if Driggs, who was admisistrator at the time of the sale, had before the sale asked for a suspension of the executions, they might have properly been suspended, unless the plaintiff had asked for an amendment or the court had of its own motion refused Driggs’ motion and ordered an amendment, we think that such an execution resting upon a perfect judgment, (which we have to regard each of the judgments in this case as having always been), was not void, but that it showed a sufficient intent to be leviable ■of property held by Driggs, not in his personal right, but in Ills capacity as administrator of Adams, and hence, of the estate of Adams, to sustain a sale of estate property. Moreover, the representative of the estate of Adams at the time of the enforcement of the writs had not by motion to •quash or suspend, or otherwise, questioned the sufficiency of these executions, or that they were leviable of the intestate’s property. Defects in writs of execution do not vitiate sales, unless they are such as render the writs void and are not amendable. In Sabiu vs. Austin, 19 Wisconsin, 421, 443, the latter recovered a judgment against Sabin and purchased land at the execution sale thereunder. The execution did uot state the time and place the judgment was docketed, and upon this ground Sabin sought to have the execution and all the proceedings thereon, including the sale and certificate thereof, declared null and void. “ If, ” says the court, “it was a-void process, then of course it conferred no -authority whatever upon the Sheriff to proceed under it, and no ' title could be acquired at the sale. But if the defect ‘did not render the execution void and was an error or defect which the court might have cured by amendment,, then a different rule applies.” Holding the defects to be such as were amendable, and that therefore the acts done-under it were not void, it is said, “ and since the court would have been authorized to amend the execution in this-particular, even on a direct application to set the same aside,. we cannot hold the matters stated in the first cause of action sufficient to entitle the respondent to the relief he-asks. In Doe ex dem. vs. Lecony, 1 N. J. Law, 111, 131,. a fi. fa. tested out of term was held not to be absolutely void but amendable, and that whenever process is amendable it will be considered as done whenever the objection-is taken. “ It is true the amendment was not made when ■ the writ was offered; but that is not necessary, for if it might be amended the court would consider it done.”' P. 132. “ There is a case in 1st Vesey where, after a ca. saexecuted, a fi. fa. was taken out and a term sold upon if.. There was a great irregularit3r,so much so that Lord Ilardwicke said the fi. fa. would have been set aside on motion. Yet he held the sale good because the officer might have-justified under the writ.” P. 133-4. In Sickles vs. Overton, 3 Penn. State, 325, a venditioni exponas was held to be-amendable by the praecipe by inserting the name of one of the defendants during the trial of an ejectment under the-sheriff’s deed, and a sale under such a writ passes the title. “The writ,” say the opinion, “ was undoubtedly amendable by the praecipe, and we treat a right to amend as an equivalent for actual amendment. But right or wrong the-amendment had actually taken place at the time of the-trial and we cannot enquire into its propriety. That it was made pending the- present action cannot restrict its effect, and there is therefore no semblance of error on the-record.” In Porter et al. vs. Goodman, 1st Cowen, 1, a motion was made to amend the fi. fa. which had been levied-The defects in it were an omission of Porter’s name and error in the teste. Trespass has been brought by the defendant in fi. fa. on the ground that the levy was under a void writ. The amendment was allowed on payment of costs of the motion and of the action of trespass. In Phelps vs. Ball, 1 John. Cases, 31, a fi. fa. was amended after it had been returned satisfied, and in Holmes vs. Williams, 3 Caine’s Repts., 98, a ca. sa. was amended after an action for false imprisonment had been brought. See also Moore vs. Dewey, 3 N. H., 535 ; Lewis vs. Lindley, 28. Ill., 147. In Representatives of Bourdeaux vs. Treasurers, 3 McCord, 142, a motion to arrest a judgment and set aside sale was met by a motion to amend, and it was held that an execution can be amended after a sale of lands had been made under it, the usual words of authority to the Sheriff having been omitted ; that the power is as ample to amend after as before judgment, but will be exercised with more circumspection after judgment. It is stated in the opinion that in Richard vs. Brown, (Douglas, 46,) and in Short vs. Coffin, (Burrows, 2730,) it was held that a judgment may be amended from de bonis propriis to de bonis testatoris.

In view oí all these authorities we think that the fi. fa.’s were not void, but that the sale under them was valid though they were not perfect in form at the time it was made, and we are further of the opinion that the amendment of the executions nune pro tunc, as between the parties, made them as if no defect in them had ever existed, and that upon this point the parties are concluded by the orders nunc pro tunc ; it is res adjudicaba. ■ Iu view of the amendment of the judgments and -the effects thereof the execution did authorize a levy upon and sale of the lands of John S. Adams, and the amendment of the executions has settled this question between the parties. The executions must have been so defective as not to be amendable before we can hold that they did not authorize the sale. If they had been so the order allowing their amendment nunc pro tune should neither have been made by the Circuit Judge, nor affirmed by this court; but they were not so.

There is to be found in some opinions a declaration or statement to the effect that a plaintiff cannot acquire title under an erroneous or voidable execution.

An examination of the cases will show that the defects ■were of a very different character from that in the executions before us. In Bybee vs. Ashby, 7 Ill., 151, the writ was directed to the Sheriff of another county than that of the Sheriff by whom and in whose county the land was sold, and was held to confer upon its face no authority even upon the Sheriff who made the sale, and that all his acts under it were void, and that the defect was not amendable. In Jackson vs. Cadwell, 1 Cowen, 622, the purchase was by one of the plaintiffs in an execution which had been previously satisfied and he had himself previously paid to the Sheriff the other execution upon which the sale was also made. In Waite vs. Dolby, 8th Humphreys, 406, an action of detinue, the judgment was that Waite “ recover the mare Bollo, if she can be had * * and the damages aforesaid,” $10, aud that in case said mare cannot be had that the plaintiff recover of the defendant “ $185,” the value of themare * "x" * with the dam gages aforesaid, &c. On this judgment the Clerk issued a fi. fa. in the usual form for the value of the mare and the damages and costs, and it was levied upon real estate of defendant and Waite purchased it and brought ejectment against Dolby to recover possession of it. There was verdict. and judgment for Waite, and Dolby appealed. “ It is manifest,” says the opinion, “from the form of the judgment and the object in fixing the value [previously stated to be fixed at the highest price to compel the delivery of the same] that a distringas for the thing recovered most be issued in the first instance. [low can it be ascertained that the thing cannot be had unless by the return of process, which had issued to obtain it? And the judgment for the money is conditional, i f the thing cannot be had; therefore, if execution for the money issue before it is ascertained by a distringas that the thing cannot be had, it is certainly erroneous if not irregular and void. It is often difficult to determine whether process be irregular or erroneous only, but we are inclined to regard the execution in this case as irregular and void. “In Weaver vs. Cryer, 1st Devereux (law), 337, referred to in Waite vs. Dolby, the suit was against, the officer and plaintiff in a fi. fa. which had issued after a year and a day and it was held that the officer was protected, but that the plaintiff who sued out the erroneous fi. fa. was liable to the action. In Larkin Keating vs. Heard & Hickerson, 3 Head, 592, the judgment under which the land was sold had been previously paid. None of these cases, we perceive, were instances of mere in-artificial expression like that we are considering, and in none was an amendment nunc pro tunc made, and in but one of them, Bybee vs. Ashby was motion to amend made, and in it the irregularity was held to render the writ void and not to be amendable; in two of them the judgments had been previously paid, and of coarse no amendment entitling a plaintiff to a double satisfaction could bo made ; in another, Weaver vs. Cryer, the plaintiff was not entitled, to his writ, except upon and till after a hearing or opportunity to the defendant to be hoard on a sci. fa., and an erroneous proceeding is presented which wo do not see that an .amendment could cure as between plaintiff' and defendant; in Waite vs. Dolby the plainti if was also not entitled to ji. fa. unless accompanied by a distringas, and not entitled to an enforcement of the former until there was a return of the latter, showing that the mare could, not be found, and we are satisfied an amendment would not have been allowed if applied for. Neither of these cases is one of mere clerical misprison in a writ addressed to a proper officer, and issued at a proper time, but in each the error is such as to deprive the writ of all authority to the Sheriff, or the case is one in which the plaintiff was either not entitled to a writ ex parte, or had been previously paid his recovery, or not entitled to the enforcement of the writ until another writ had been issued and returned unsatisfied.

Decisions to the effect that a Sheriff’s deed executed before the time allowed by statute for redemption of land (Bernal vs. Glim, 33 Cal., 688 ; Gorham vs. Wing, 10 Mich., 486,) are void, or to the effect that a purchaser at a Sheriff’s sale, he being also plaintiff' in execution and parting with no money, is not entitled to the protection of a bona fide purchaser for a valuable consideration (Williams vs. Hollingsworth, 1 Strobhart, 103,) are not decisions of the points involved, nor are they questioned. The case of Allen’s administrator vs. Thrall, cited in Smith vs. Howard, 41 Vermont, 74, 79, was, it would seem, one in which a defective execution had been returned unsatisfied, and a motion to amend was made but denied on the ground that the amendment if made might charge the officer returning i(, or his bailees, who had already been discharged by reason of the defect, and not one where the amendment was asked to support action taken by officers or rights acquired by parties thereunder. We have not seen the case in full. The general doctrine of the effect of amendments nunc pro tune is too well established to be shaken by it.

In § 340 of his work on executions, Mr. Freeman says: “ Whenever the irregularity is such that the defendant can be deemed to have waived it by his laches, or where it is of such a character that it can be cured by amending the writ, we think it cannot render the sale void, although the plaintiff may have purchased,” we are of the opinion that the sale was valid and that as between the parties the amendment of the judgment and execution has adjudicated the question.

II. Appellant also insists that the Sheriff’s deed to Higgins does not in point of fact convey any interest or estate in the land which belonged to John S. Adams at the time of his death. It is true that this instrument is inartiñcially drawn ; it describes the executions as issued upon wo judgments wherein Wakefield and ReQua, for the use of Driggs, are respectively plaintiff, and “John S. Driggs, administrator of the estate of John S. Adams,” is defendant, and as issuing from Duval county Cii'cuit Court, and recites that he, the Sheriff, did “ levy on and seize all the estate, right, title and interest which the said defendant had of, in and to the property hereinafter described,” and that y the said property was struck off ” to Higgins, and it grants, bargains, sells and conveys unto him and his heirs, “ all the estate, right, title and interest which the said defendant, the said estate of J. 8. Adams, deceased, had at the date of the respective judgments aforesaid, or at any time afterwards ” of, in and to the land. We think, looking at the whole instrument, that the purpose and meaning oí the Sheriff was to convey that interest or title in said land which at the rendition of the judgments was a part of the estate of John S. Adams. The words italicised explain the understanding, meaniug and design of the Sheriff as to which and whose property he had levied on and had sold and was conveying, and there is no question but that it was done on writs connecting themselves with the judgments, which were subsequently amended nuno pro tunc. Steward vs. Preston, 1 Fla., 10. The distinction between the decision in Griffin vs. Wilson, 22 Fla., and this, is plain.

Judgment is affirmed.

Case Details

Case Name: Adams v. Higgins

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1887

Citation: 23 Fla. 13

Court Abbreviation: Fla.