Palmer v. Palmer

2 Conn. 462 | Conn. | 1818

Swiít, Cb. J.

The question in this case is, whether an execution levied on land, which is in favour of the plaintiff, in his private capacity, and the judgment was in his favour as administrator, will create a title to the land. It is an unquestionable rule, that the execution must pursue, and be warranted by, the judgment, to render it valid. Here is no judgment in favour of the plaintiff in his private character j but only as administrator. The execution, then, does not pursue the judgment ; and there is no judgment: to warrant it. JiHÍecd, ill ere does not appear to be any judgment on which the execution issued. It is, therefore, a nullity ; and the court did right to reject it.

Ooui.d» J.

None of the authorities, referred to in support of the motion, apply to the case before us. There was no question of variance, in any of them : whereas, in the present case* that is the real and only questions That an administrator may maintain debt, or a sc ire facias, in his individual capacity* upon a judgment recovered by him in his representative character, there appears now to be no doubt, notwithstanding former opinions to the contrary. Crawford v. Whittal, Doug. 4. n. Bonafous v. Walker, 2 Term Rep. 126. For the judgment, it is agreed, converts the original demand into a debt, due to himself, in his own rights Hut this admission is nothing to the purpose of the plaintiff’s argument: for it is equally certain* that in whatever mode the original judgment is to be enforced, it must be set out or counted upon* as it iss Hence, if the administrator sues upon the first judgmenthe must unquestionably aver, that he recovered it as administrator. And for the same reason, if he takes execution upon it without a second suit ;• the execution must show the same fact: otherwise, the judgment will not support the second action, in the one case, or the execution in the other— as there will necessarily be, in either case, a fatal variance'. There is also no doubt, that upon a judgment recovered against an administrator, as such* he is liable lo a sci.fa. in his individual capacity. But will it be, therefore, contended, that, without any intervening suit, execution upon such a judgment, might issue* in usual form, against him, in that capacity ? Or, that execution could issue against him, in any form, without showing, upon the face of it, the capacity, in which he was subjected by the judgment ? This cannot be. The execution must pursue the judgment, whether it he against, or for, him. Upon the same principle, upon which the judgment must conform to the declaration, the execution must conform to the judgment. For, as the declaration is the foundation of the judgment; so is the judgment the foundation of the execution. But, in the present instance, there is, between the two latter, a most material variance. For if any thing in the judgment, or execution, can he material * surely, the representative character, in which ¿Minor sued ami recovered, must be so : since, upon the face of the record of his recovery, his right of action was only in tha; character. It cannot be denied, then, that this execution,, which is sued out, in his own right, and imports to have issued upon a judgment, recovered by him, in the same right varies, essentially, from the judgment. The judgment produced, as it appears, and must appear, to the court, is not that, upon which the execution issued. And as no other judgment is shown, to warrant the issuing of the execution ; the only conclusion is, that none such exists. How can the court know, that this execution actually issued, as the plaintiff claims, that it did, upon this judgment ? The legal inference is directly against such a supposition. And this inference cannot be ousted by evidence aliunde. If this is, in truth, the same judgment, upon which the execution was granted •, we still cannot take the fact to be so, upon averment. It must appear, prima facie, from inspection : for an execution follows, or emanates, from a judgment, as the latter does from the preceding part of the record, or, as a conclusion from its premises. According to this view of the subject, it is very manifest, that the execution, under which the plaintiff claims title, is unsupported by any judgment. The difference between the two capacities, in which Minor appears, in the judgment, and in the execution, is virtually a difference of parties ; and must produce the same legal effect as if the execution had issued in the name of a different person. I will add, merely, that if there has been a mistake, in issuing the execution, (as, in point of fact, is doubtless the case;) there can be no difficulty in correcting it, by a proceeding, adapted⅜0 that end. But I am very clear, that the legal title is not, now, in the plaintiff.

The other Judges were of the same opinion, except Chapman, J. w ho gave no opinion, having been absent w hen the-case was argued. #

New trial not to be granted .