15 Ala. 225 | Ala. | 1849
In Collingsworth v. Horn, 4 Stew. & P. Rep. 237, it was decided that where a writ of fieri facias had issued against the estate of an intestate in his life time, an alias and pluries might be issued thereafter, and personal property levied on and sold in order to satisfy the judgment ; that the first writ created a lien which the retrospection of the latter, continued and perfected. In fact, the several writs were regarded as a mere continuation of the process, which was necessary to complete the execution. But it was held in Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679, that that decision was inapplicable where real estate was the subject of levy and sale. The original fi. fa., it was said, originated no lien upon the “lands and tenements ” of the debtor, that it cannot connect itself with the alias and pluries for the purpose of showing their regularity, or imparting to them an energy which they do not intrinsically possess. “ The judgment itself operates a lien upon the real property; that is, it gives a right to have that property sold, in order that it may be satisfied. By the death of the defendant, his lands descend to his heirs, or vest as he may devise by will, and the mandate of an execution which directs the sheriff to make of them the amount of a judgment, must be wholly inoperative and void. In fact, such a writ could never be executed in consequence of the death of the defendant, which has cast his estate upon other proprietors.”
In Mansony and Hurtell v. the U. S. Bank et al. 4 Ala. R. 735, it is intimated in no equivocal terms that a fieri facias which requires money to be made of the estate of a deceased defendant, although it be an alias or pluries, following an original which issued in the life time of the defendant, is absolutely void; and if such process is executed, it will be regarded as a nullity from the beginning, so that a purchaser under it acquires no title as against heirs or devisees. See cases there cited; also Erwin’s lessee v. Dundas et al. 4 How. Rep. 58; Fryer v. Dennis, 3 Ala. Rep. 254; Cooper v. May, 1 Harring. Rep. 18; Samuel v. Zachery, 4 Ired. Rep.
Though the plaintiff should die within a year and a day after he has obtained judgment, his personal representative cannot have execution against the defendant, without a scire facias. If the defendant die within that period, the plaintiff cannot have an elegit under the statute of Westminster, the 2d Ch. 18, against his lands in the hands of his heir or terretenant, or generally any other execution without a scire facias against his heir, or terre-tenant, and personal representative. The rule being, that where a new person who was not a party to the judgment, or recognizance, derives a benefit by, or becomes chargeable to the execution, there must be a scire facias to make him a party to the judgment, or recognizance. Jefferson v. Morton et al. 2 Saund. Rep. 6, note 1.
In Stymets et al. v. Brooks, 10 Wend. Rep. 206, it was decided that land cannot be sold on an execution issued after the death of the defendant, although it is tested as of a day previous to the death. The reasons given, are, that a new party is affected by the execution, and there would be a discrepancy between it and the record, and indeed there is no authority for the process. The court consider the English doctrine which sanctioned the .testing of an execution of a day previous to the defendant’s death, so as to give it a retrospective lien upon the goods and chattels, and say that it never had any application to an execution against the lands of the debtor.
So in Hildredth v. Thompson, 16 Mass. Rep. 191, it is said by the common law, all proceedings in a suit at law are stop-ed by the death of one of the parties. If either of them die before judgment, no judgment can be entered ; if after judgment no execution can issue. No authority was known, either in England or this country, for issuing an execution, where a party to the judgment was dead, and if an execution issued under such circumstances, it was said it “ must be considered void.”
True, in Day v. Sharp, 4 Whar. Rep. 339, it was held,
The case last cited, it is believed, is indefensible in principle, so far at least as it maintains that an execution which issues in favor of a deceased plaintiff is voidable merely, and we think is not sustained by authority, The analogy of such an execution to one sued out after a year and a day from the time the judgment is rendered, is not perceived. In the lat
The argument which establishes the nullity of a fi. fa. against the estate of a deceased defendant, it is true, does not in terms apply, where the plaintiff has died before the execution issued, yet we think the same consequence results from the death of either party. It is a legal axiom, that to authorize a court to adjust the rights of parties, and to render an operative judgment between them, there must be what is sometimes called, in technical language, an actor and a reus, or in other words a controversy conducted by a plaintiff, and defendant, having an actual existence, no matter by what names they are known. If either party die pendente lite, or after judgment, the proceeding either abates absolutely, or becomes in a state of suspended animation ; in the latter case, the law has in most instances provided a remedy by which renewed vitality may be imparted to it, and the suit proceed to trial and judgment; or if judgment was rendered while the parties were in life, the plaintiff may have execution. But a judgment rendered against either party after his death, and which cannot be referred by relation to a day previous, is a nullity which will not sustain an execution, and may be recalled on writ of error coram vobis. See Holford v. Alexander, 12 Ala. Rep. 280, and cases there cited; Finney v. Ferguson, 3 Watts & Serg. Rep. 413; Greenough v. Patton, 7 Watts’ Rep. 336; North v. Pepper, 20 Wend. Rep. 677; Jennings v. Ashley, 5 Pike Rep. 128; Pool v. Loomis, Id. 110; Stickney v. Davis, 17 Pick. Rep. 169; Collins v. Prentice, 15 Conn. Rep. 423.