59 Md. 382 | Md. | 1883
delivered the opinion of the Court.
This appeal brings for review several rulings, of the Circuit Court of Carroll County, upon a scire facias to revive a judgment in that Court alleged to have been recovered by the testator of the appellees against one William Stansbury, on the first day of April, 1854, and
The writ is, in fact, a declaration to which the parties defendant plead or demur as in any other action, hut directly to the writ. 2 Tidd’s Pr., 1090; Prather vs. Manro, 11 G. & J., 261; and Bowie vs. Neal & Luckett, 41 Md., 125.
In the case of Prather vs. Manro, this Court said the writ, “should contain on its face, such a statement of facts as to justify the process, in respect to the form in which it issues, and the persons who are made parties to it.” The formality, with which all recitals necessary to establish a terre-tenant’s liability, must he set out, will he seen by reference to Jefferson vs. Morton & Dawson, 2 Wms. Saunders, 6; which case is referred to in Adams vs. Terre-tenants of Savage, (2 Salkeld, 600,) as a good precedent. As respects terre-tenants, it is strictly a proceeding inrem. No personal judgment is obtained, but simply a judgment subjecting the land in the hands of the terre-tenants, which belonged to the judgment debtor at the date of the judgment, to its payment. The judgment of the Court is that such land may he taken by fieri facias. Thomas vs. Far
First, we may notice that whilst the writ alleges, that on the second Monday of May, 1874, a judgment was obtained against the lands of the judgment debtor, at date of the judgment; and in the hands or possession of the appellant as terre-tenant, it does not recite by what means such judgment was obtained. It fails to state whether this appellant was brought in by scire facias, in general or special form, whereby either in the writ, or in the special return of the sheriff, his land sought to be charged was indicated by description, giving him sufficient notice. Although, as against the judgment debtor and his heirs, or personal representatives, the scire facias proceeding, which culminated in judgment of fiat in 1874, was a continuation of the original proceedings in which judgment was obtained; yet, as against terre-tenants, who are entire strangers, a scire facias, intended to subject land claimed by them to the payment of a judgment against another, must be regarded as so far a new proceeding, that everything necessary to co-exist to affect their rights, must appear in the writ. The reason for this is, that strangers may falsify the judgment, whilst parties and privies are bound by it and estopped. Proctor vs. Johnson, 2 Salkeld, 599. "We find no precedent precisely in point, for we can find no instance where “fiat” having once been secured against lands of a terre-tenant, an
As against terre-tenants scire facias is a proceeding of great strictness, and all the common law requisites must be observed in the structure of the writ. It should set out all the facts relied on to justify the form in which it issues, and the relief it seeks against the persons named. This is especially seen in the case of Jefferson vs. Morton, (already cited.) The writ should contain everything that is necessary to make a complete cause of action against the terre-tenants’ lands, which are sought to be charged, to put the terre-tenants, who are summoned, to defence. Bowie vs. Neal & Luckett, 41 Md., 135.
2. In the second place, it may he observed, that this scire facias was intended to be special in form because there had been fiats already obtained against the appellant, and one Crouse as terre-tenants, which judgments it was sought to revive; but that should not have prevented the giving authority to the sheriff to notify all other terre-tenants, if there were any. There might have been some who became such since the proceedings began in 1868, which ended in fiat in 1874. Eleven years had elapsed. The judgment debtor was still alive. No suggestion, at least, is made of his death, and process was asked for him,
3. But if all this was not so, a still more serious and fatal defect remains to be considered. If the judgment which is recited as having been rendered against Bish, or rather the land in his possession, is all the judgment which was rendered, as we must suppose it to be, then it is such a judgment as cannot he enforced through fieri facias. This judgment contains no description of the lands intended, or sought to be affected by it, either in Crouse’s possession or the possession of Bish. It simply recites a judgment of the Court that the plaintiff should have execution of “the lands whereof the said William Stansbury was seized in his demesne as of fee at the date of the judgment, or ever afterwards, and of which Ephraim Bish was terre-tenant.” There is no further description supplied by reference to a sheriff’s return or to the pleadings, through which the judgment could be made certain as to what it was to operate on. Manifestly there is no description of the lands in this judgment, which a sheriff, by fieri facias issued thereon, can be enabled to seize. The fieri facias issued in such case must contain a description of the land to be seized for the satisfaction of the judgment. Thomas’ Case, 46 Md. 43 ; 2 Harr. Ent., 690.
No specific lands are recited as condemned by this judgment, and if a fieri facias were to issue directing the sheriff to seize the lands as they are described in the judgment, the whole question of what lands were covered by the judgment, and he was justified in seizing, would he left to the discrimination of the sheriff. He would have to determine what lands had been conveyed by the judg
Judgment reversed, and judgment on the demurrer to the writ for appellant.