Miller v. Taylor

29 Ohio St. 257 | Ohio | 1876

White, J.

At common law the lands of a debtor were not chargeable with" his debts, and when they became so chargeable by statute, provision was made, in case of the death of the judgment debtor, for proceeding directly against the heir to subject such' lands to the payment of ^the judgment. 2 Tidd’s Pract. *1118, *1120; 2 Wms. Sand. 6, 51; Harbert’s Case, 3 Rep. 44.

In the history of our own remedial system, statutory provisions somewhat analogous have from time to time been adopted, and, in order to understand the effect of the decisions found in our reports on the subject, care must be taken to observe the statutes under which the several cases arose.

The case of McVickar v. Ludlow’s Heirs, 2 Ohio, 246, and the ease of The Union Bank of Georgetown v. Adm’x and Heirs of Meigs, 5 Ohio, 312, arose under a statute which authorized, under certain conditions, the issuing of a scire facias against the heirs, of the judgment debtor, provided they held lands by descent.

The same is also true of the case of Douglass v. Waddle, 8 Ohio, 209, which is especially relied on by the plaintiff in error, .Although the case arose under a different statute, yet it, as well as the subsequent case of Hutchinson’s Ex’r v. Hutchinson et al., 15 Ohio, 301, was decided on the state ^of legislation existing at the time.

Since the decision of those cases the legislation on the subject bas been changed. The rights of the parties in the present case are governed by the code of civil procedure and the act for the settlement of estates now in force. Part nine of the act last named (S. & C. 610) prescribes the cases in whiqh the heirs and distributees may be made liable for the debts of the deceased, and the extent of such liability. These cases do not include the liability sought to be enforced against the defendants in the present instance.

The plaintiff relies to suppoi’t the judgment of the court of common pleas on section 116 of the code, and section 117 as amended April 16, 1867. S. & S. 562.

Section 117 provides for the revivor of judgments which have become dormant under the statute ; and it is clear that under this section the revived judgment can have no greater operation than it would have had if it had not become dormant.

Section 116 provides for making the representatives, real or personal, as the case may require, parties to the judgment, where either or both of the original parties die after judgment and before satisfaction.

The plaintiff is not a creditor having a lien on specific real estate. lienee an inquiry as to the rights of such creditor is foreign to the case.

The judgment of the plaintiff against the intestate is in personam. There was no levy during the lifetime of the judgment debtor, nor was the judgment a lien at the time of his decease. If there had been such lien, section 150 of the administration law makes provision for its payment.

The only remedy of the plaintiff to obtain satisfaction of the judgment is through the administrator in the regular course of administration.

The judgment of the court of common pleas was properly reversed.

Leave refused.