15 Ala. 587 | Ala. | 1849
The material inquiry in this case is this: If a judgment be rendered against two, and one die before execution is issued, can an execution be issued and levied on the lands of the survivor, without a sci. fa., and by a sale thereof, pass the title to the purchaser 1
By the common law, if judgment was rendered against two, but one died before the execution issued, nevertheless the plaintiff might sue out execution, and have it levied on the goods of the survivor. Bingham on Ex. 135; 3 Tidd, 1120; 16 Mass. 193; 3 Bibb, 334; 4 Howard, 58. The execution, however, for the sake of conformity with the record, issued as against both ; but was in law an execution against the survivor only, and his goods alone could be levied on in satisfaction of the judgment. But if the judgment was against a sole defendant, and he died before execution was issued, no execution could be issued, without a scire facias to his representatives.
These are the general rules applicable to executions, so far as they affect the goods and chattels of the defendants. By
By the act of 1812, (Clay’s Dig. 205) lands are made liable to all judgments and decrees-rendered by any court of record, and the clerks are required to frame their executions accordingly. Under this act, the fi. fa. is issued against the goods and chattels, lands and tenements, and the lands are equally liable, under this process, to be sold; and the sale, and execution of the sheriff’s deed, will pass to the purchaser a fee simple title.
Lands, then, are liable to be sold for the payment of debts Under the same writ, by which goods are sold ; and the land of one defendant may be sold, although no levy or sale is made of the land, of the other; or the lands of both may be sold, as the goods of one, or both of the defendants might be; at the common law. It may well, then, be asked, if lands; in this state, are liable to be sold under execution, by the same writ, by virtue of which, the goods are sold, and the goods of a surviving defendant may be sold without a sci. fa. why deny the right to sell the lands, when both the land and goods are liable, under the same writ, to be sold for the payment of the debt ? If the goods of the survivor can be sold without a sci. fa., his lands, which are placed on the same footing, it would seem might be also.
It is true, that there are to be found decisions to the contrary. In the case of Erwin’s lessees v. Dundas, 4 Howard, 58, it is said, that if one defendant die, although the execution may go against the goods of the surviving defendant, it cannot be legally issued against his lands, unless it has been revived against the heirs of the deceased defendant. Why is this ? Why may not the plaintiff proceed against the land of the survivor, in the same manner that he might against his goods ? Both are equally liable to the judgment: both may be sold by. the same writ, if the other defendant is in life; why not, if he is dead ? No answer, in my opinion, can be given. It is a little strange, that the court did not notice our statute law, in the opinion delivered in the case referred to.