50 W. Va. 361 | W. Va. | 1901
Franklin Maxwell on July 29, 1885, obtained a decree in the circuit court of Doddridge County against Leroy Leeson for one thousand seven hundred and fifty-seven dollars and fifty cents and docketed it in the judgment lien docket, and on August 24, 1885, execution issued, which was returned, by direction of Maxwell, by the sheriff. Then Maxwell died, and in February, 1895, W. Brent Maxwell, administrator of Franklin Maxwell, •sued out a writ of scire facias against Leeson to revive the judgment and have execution awarded in his favor as administrator and on the 22d of March, 1895, the circuit court of Doddridge County entered an order in chancery reviving the decree in the name of said administrator and awarding execution. On the 3rd day of February, 1896, an execution was accordingly issued, and
A question in the case is whether the decree is barred by the statute of limitations as to Inskeep and Douglass? This chancery suit was brought on the 2d of September, 1899, more than ten years from the return day of the first execution, and thus the judgment is barred unless the decree, or rather, the award of execution upon the scire facias saves it from the bar of the statute. Inskeep and Douglass say that that scire facias and the award of execution upon it can have no effect upon them, because they were not parties to it. They are grantees of Leeson in possession while the lien of the judgment was in force. Is it necessary. that Inskeep and Douglass should have been made parties as terre tenants to that writ of scire facias? The authorities differ upon this question. It is laid down in 21 Am. & Eng. Ency. L. (1 Ed.) 861, 862, that “where the judgment debtor has parted with the possession of the land during the time the land was liable to execution under the judgment, the present occupant or terre tenant must be made a party to and served with the writ of scire-facias. The terre tenant is one who has an estate in the land coupled with the actual possession derived mediately or immediately from the judgment debtor while the land was bound by the lien.” 1 Black on Judgments broadly says that “the rule is that on a scire facias to revive the lien of a judgment on land, which is in the possession of a terre tenant, it is essential that the terre tenant be made a party to the proceeding.” To support this position we are also referred to Mower v. Kip, 6 Paige Ch. 88, and Chahoon v. Hollenback, 16 Am. Dec. 581, and Morgan v. Crogan, 20 Johns. 106, and Freeman on Judgments, Vol. 2, page 767 . In this case the scire facias was against a living defendant, and sought execution in behalf of the admin-istartor of a deceased plaintiff. In such case I state the true rule to be that laid down in 1 Freeman, Executions s. 87, that “in the case of the death of the original defendant, the terre
Now, this shows that where the execution goes only against personalty, only the personal representative is a necessary party. It goes to show that only he need be a party to a scire facias whose property is to be taken by execution under it. It goes to show that only a party to be benefitted or prejudiced directly by force of the execution itself need be a'party to the scire facias. An execution does not either benefit or injure a terre tenant in West Virginia because his land cannot be taken by it and it has no effect upon him directly, — the execution itself has not. This is confirmed by Maryland decisions cited for the proposition, that although the defendant be living, the judgment cannot be revived against him so as to affect his grantees, unless they are made parties. But those cases show that it is upon the ground of contribution that all terre tenants are required to be made parties to a scire facias. There the execution operates to sell the land, and in order that one party may have contribution from other vendees to help pay the debt, they must be parties. Doub v. Barnes, 4 Gill 1, also Morton v. Crogan, 20 Johns. 106. These views tend to the conclusion that as in this State an execution does not affect land, there need not be in any case of scire facias service thereof on terre tenants, and they need not be parties; but this case being against a living defendant the terre tenants • need not be made parties to the writ. This has been held in Righter v. Rittenhouse, 3 Rawle 273, and Jackson v. Shaffer, 11 Johns. 513, and Young v. Taylor, 2 Binn. 228. I will add that the passage quoted above from 21 Am. & Eng. Ency. L., so much relied on to support the necessity of purchasers being parties to a scire facias, relates to cases where a defendant has died.
In West Virginia the judgment is a lien on the land as against the debtor, and on land conveyed by him after the-judgment in the hands of his vendee purchasing after the docketing of the judgment, or without docketing if he hav,e notice of it. He takes the land encumbered by the judgment. He stands in the shoes of the judgment debtor, having acquired the land with
Why can we not just as well say that he who purchases land with notice of judgments thereon stands in the shoes of him from whom he derives his right, with no 'higher right than he has, taking the land subject to that lien as long as it continues good against his grantor?
Had Maxwell lived, he could have sued out execution without joining those terre tenants. Then, why can not his administrator likewise sue out a scire facias without joining them, its only purpose being to accomplish the same end which Maxwell would have accomplished had he lived.
Another consideration seems to me forceful. If either party to a judgment- die, while no execution can go without revival against the personal representative by sci fa, yet the lien on the land still exists as long as a sci fa may be sued out, and that is within the period limiting the judgment. Laidley v. Kline, 23 W. Va. 565. As statute law makes the judgment a direct legal, lien on the land until it is barred — I say makes the judgment a lien — an equity suit may be brought to enforce that lien notwithstanding the death of a party, either pai^, may have suspended right of execution upon the judgment until revival. Burbridge v. Higgins, 6 Grat. 120. This lien is a legal lien, born alone of the judgment, not of an execution, a lien independent of any execution, the only efficacy of an execution being to keep it alive. If it is capable of execution, or may be revived by sci fa, the lien may be enforced on land in equfi^, not because of an execution, but without execution, the lien of the judgment on the land being one thing, the lien of an execution on personalty being another thing — just as distinct from each other as is the personal debt of a note secured by deed of trust on land and the lien of that deed on the land. 2 Minor Ins. 314. Who will deny that a suit in equity might be instituted without any execution at
As stated above, the judgment may be in a state of suspension so far as execution is concerned, but alive and enforceable in equity on land without revival, because it is not the execution, but the judgment, that affects the land. If we are told that the scire facias does affect the land because it keeps alive the judgment, I reply that the same argument may be made as to a second
Another defense in this chancery suit is, that the judgment, so called, upon the scire facias is void and no lien. This defense is based on the theory that the order upon the scire facias is an original judgment, and not, as it should be, a mere revival and award of execution, because the law is that a scire facias is a continuation of the same suit, a process in cases of suspension of execution from dormancy of the judgment' by death or other cause, to have an award of execution in the name of a new party, and not to try the matter over again, and if the court go beyond this and render an original judgment, as in an original action, it exceeds its jurisdiction proper upon such a writ, and its judgment is void. Hogg’s Plead. & Forms (2 Ed.) 508; 2 Barton L. Prac. 1024; 1 Black, Judgm. 498; Lavell v. McCurdy, 77 Va. 763; Wade v. Handcock, 76 Id. 620.
The result is that we reverse the decree of the 28th day of November, 1900, overrule the demurrer to the bill, and repiand the cause with leave* to the defendants to answer the bill and for further proceedings according to the principles governing courts of equity.
Reversed.