Harteaux v. Eastman, 6 Wis. 410

Harteaux v. Eastman

6 Wis. 410 | Wis. | 1858

By the Oowrt,

Cole, J.

It appears in this case, that the plaintiff below and defendant in error, for the purpose of establishing his title to the disputed premises, offered in evidence a warrantee deed from Daniel Whitney to Joseph Dickinson, dated December 10th, 1834, conveying the premises described in“the declaration. We likewise further showed that Dickinson died June-7th, 1838, leaving a widow, and two children— James and Emily — the former of whom died in the fall of 1838, and the latter, who became the wife of Lieut. Forsyth, died in July, 1854, and loft no children ; that at the time of Dickinson’s death, his wife and children resided upon the property, and that Forsyth, the husband of Emily, was living at the time *418of trial. The plaintiff claimed the premises by virtue of a quitclaim deed from Emily Root (formerly the wife of Dickinson), and her husband, dated May 13tb, 1856. To defeat a recovery, the defendant below and plaintiff in error, proposed to show that the property in question was sold to Daniel Whitney, at sheriff’s sale, under an execution upon a judgment of the district court of Brown county, Wis. Ter., rendered against Joseph Dickinson in his life time, and that the defendant claimed under a lease from Whitney. The judgment record book of the district court was thereupon introduced, showing that at the May term of said district court, held on the 28th day of May, 1838, a judgment was rendered in that court against Joseph Dickinson in favor of David A. Comstock and Robert W. Andrews, in the sum of $393.18 and costs. He then offered in evidence a writ of execution issued out of said district court upon said judgment on the 15th day of June, 1839, under which the sale to Whitney was made. To the introduction of the writ of execution in evidence the plaintiff below objected; because by its face it purported to be issued after the death of the defendant named therein as proved; because it was issued more than one yeár after the death of the defendant; and because the execution was void on its face, and for other reasons. The court held the execution void, and rejected the evidence, and the defendant excepted. The defendant further offered in evidence a certificate of sale by the sheriff under said execxttion, together with the sheriff s deed of the property to. Whitney; which evidence was also ruled out and exceptions taken.

Inasmuch as we consider the ruling of the circuit court rejecting the execution, certificate of sale, and sheriff’s deed, when offered in evidence, erroneous, we shall confine ourselves in our decision to a consideration of that question alone, and express no opinion upon the other interesting and important points raised in the case. Was, then, the decision of the circuit court, rejecting the evidence offered, correct and proper ?

It is understood that the principal ground upon which the *419circuit court relied in ruling on tbe evidence, was, that it beld that the execution was absolutely void, and that the purchaser at the sheriffs sale acquired no title to the land, for the reason that the execution was issued after the death of the' defendant, Dickinson, upon a judgment obtained against him in his life time, without its appearing that the judgment had been previously revived against Dickinson’s administrators or executors by scire facias. We are then to consider whether it was indispensably necessary, under the laws in force in the Territory in 1838, (at the time the judgment against Dickinson was obtained), when a judgment had been recovered in a court of record in the Territory if the defendant died before an execution issued, that the judgment should be revived by scire facias, before an execution could properly issue. The law then in force regulating the practice of issuing execution upon judgments, and which we think determines this whole matter, was the statute of Michigan. The 15th section of the act approved April 12th, 1827, and found on page 428 of the edition of the Michigan statutes before me, is the provision that has the most direct bearing upon the question under consideration, and reads as follows : “ That when any judg- “ ment hath been, or shall be recovered or acknowledged, or “ damages adjudged, in any court of record in this territory, “ if the defendant happens to die before execution shall have been issued thereon, the remedy of the person in whose favor “ the sand judgment shall have leen rendered, or acknowledged (< shall not le suspended ly reason thereof, nor by reason of the “ non-age of any heir or heirs of any such defendant; but no “ execution shall be issued on such judgment, until one year “ after the death of such defendant.”

We have not been referred to any judicial construction of this statute, and we know of none. We must therefore put our own interpretation upon it. In the absence of this statute, it probably would not be contended that where a sole defendant dies after final judgment and before execution, a scire facias need not be issued to revive the judgment against the *420administrators or executors, before an execution could regularly and properly issue ; but we believe the above provision changes the rule in this respect, and renders it unnecessary. For the statute expressly decdares that in such a case the remedy of the person in whose favor theliudgment shall have been rendered, shall not be suspended [by reason'of the death.'of the defendant. The remedy here spoken of, we are of the opinion, refers to the means the plaintiff might employ to enforce his rights, embracing therein the execution, the life and end of the law. Without this statute, as already observed, the remedy would, to a certain extent, have been suspended or modified, and the party plaintiff would not have been entitled to his execution until he had instituted an additional proceeding, and revised the judgment. But the statute provides that the death of the defendant in the execution anterior to suing it out, should in no wise affect the proceedings, or delay the plaintiff in the prosecution of his rights, except as therein afterwards specified; that is, that the execution should not issue until the expiration of a year from the death of the defendant. This provision we consider essentially different from the various enactments of our present statute upon the subject.

Conceding, however, that we are wrong in our construction of the statute, and assuming that it was a necessary prerequisite to revive the judgment by scire facias before the execution could properly issue, then after the great lapse of time that has intervened since the sale, and in consideration of the fact that only a part of the papers relating to the suit can be found, we deem it eminently a proper case for the ajjplication of the familiar rule, onmia praesvmuntur rite esse acta’, that everything necessary to render the issuing of the execution regular, will be presumed to have been rightly and duly performed, until the contrary is shown.

Some objections were taken to the form of the execution, and the return day thereof; but these objections, even if well taken, could not render it void. At most, they were irregu*421larities for which, perhaps, the execution might have been set aside before sale. But a sale having taken place under it, the lands having been bought in good faith by Whitney, and, for aught that appears, for a valuable and sufficient consideration, the sale should now, if possible, be upheld. The judgment of the court below is reversed with costs, and a new trial ordered.