7 Tenn. 1 | Tenn. | 1823
— The facts of this case are as follows: The ancestor of the complainants being in possession of 2,500 acres of land, which they claimed through several channels, under Robert King, the grantee; and, being doubtful of the title which they had to the same, were endeavoring to get a judgment against King, after his death, which should be sufficient to sell the land, and to vest a good title in the purchaser. Southerland and Mc’Campbell, having, a judgment of Terry against King, upon which execution had been taken out more than twelve months after the judgment, issued a scire facias against the heirs of King, there being no executor or administrator; and upon such scire facias, there was an award of execution against the heirs. ' In 1816 they agreed to sell it to the plaintiffs, appointed Mr. Lane their agent for that purpose, representing to him, which he represented to the plaintiffs, that this judgment was properly revived ; that the execution upon it was a valid execution, and would pass the title to the purchasers under it. Upon these representations the plaintiffs purchased. The lands were sold, the plaintiffs purchased them ; and they now say that the revived judgment, as it is called, passing over the executor and proceeding against the heirs only, was void, and' that any sale under it was also void; and that they, having paid their money under a mistake, into which they were led by the misstatements made on the part of the defendant, should be relieved against the contract thus unfairly drawn from them; that they purchased under the belief that the judgment and execution was valid, and that the sale under them would be a valid sale, is manifest; that they relied upon the sale made by the defendant is equally so, for the record
I will consider, in the first place, whether this execution, obtained against the heir without a previous judgment against the executor, be a void execution, and whether such judgment against the heir be a void judgment. And, secondly, if it be a void judgment, whether a sale under it be a void sale.
In order to discover whether the judgment obtained on the scire facias against the heir be a void judgment or not, it will be first considered whether such judgment would have been void before the Act of 1784, ch. 11. Secondly, whether it is made so by the Act of 1784, chap. 11. Thirdly, what effect is produced by the death of the debtor, without an executor or administrator.
First, by the law, as it stood in 1782, before and at the time when the act of Parliament was passed for subjecting lands in the plantations to be sold b ¶ fieri facias, a judgment rendered against the testator or intestate in his lifetime was a lien upon his lands, and this lien had the same effect upon the lands as the lien by fieri facias had upon the personalty of the deceased. If the lien attached before the death of the testator, as it did, if the fieri facias was dated at a time previous to his death, then it might be executed on the personalty in the hands of the executor: 2 Bac. Ab. Execution, letter G, § 2; 7 T. 20, 24; 2 Stra. 1081; 8 T. 368; L. Ray. 766; 3 P. W. 399; 2 L. Ray. 850; 1 L. Ray. 655; Cro. Eliz. 181; 2 Ver. 218; 1 L. R. 244; 1 Salk. 319; 3 P. W. 399; Barnes, 268; 1 B. & P. 572; Dy. 76; Cro. Eliz. 174; 12 Mod. 130; 1 Mod. 188; Cro. C. 149, 447, 448; Cro. 171; Cro. J. 451; L. Ray. 695, 808, 850, 1073; 1 T. 361, 729; 5 Mod. 377; 1 Salk. 320; 2 Mod. 310; Burr. 271; 6 Bac. Ab. c. scire facias, § 4, — because the attaching of the execution upon the goods was prior to the title of the executor, the former being by the teste of the execution, the latter by the death of the testator. The lien takes them into the possession of the law for the satisfaction of the execution, so that they do not go into the legal possession of the executor till the execution be satisfied. So in the cáse of a lien upon lands by judgment against the ancestor; that lien commencing by the judgment which preceded the death of the testator, takes them into the possession of the law, so that they do not descend to the heir, and execution might be
It is next to be inquired whether such judgment was made void by the Act of 1777, ch. 19, or by the Act of 1784, ch. 11; the frame of these Acts directed that execution should first be levied on the personalty,' and if not sufficient, then on the realty. The same principle had been established by the Act of Parliament, which introduced the elegit; 13 Ed. 1 Ch. 18; and has been observed from the time of the Saxon Government; 1 Reeves, 243; by the Act of the 13th of Edw. 1, the creditor was at liberty to take out a fieri facias against the personalty, or an elegit against the whole of the personalty which was to be applied in the first instance, and one half of the realty, which was not to be touched if there was personalty enough ; 2 Bac. Ab. Execution, letter C, § 2; to secure this purpose, with respect to debts to be thereafter recovered against executors, the Act of 1784 was made ; it was not made to clear up doubts or to remove difficulties, with respect to judgments obtained against ancestors in their lifetime, for the law upon that subject was well settled; but it had been a matter of great controversy, even before the Revolution, whether a judgment against the executor could be levied of lands in the hands of the heir. It had been decided in North Carolina in the Superior Court of Halifax, in the time of the Royal Government, that the heir must first be made party, by scire facias, before a fieri facias upon a judgment against the executor could affect him ; Lathberry was one of the parties. The case is more particularly stated in that of Baker and Long in 1 Hay. Rep. It was contended before this decision that lands were personalty for the payment of debts, by the Act of George II., and as personalty could be affected by a fieri facias against the executor. By this decision it was established that they were not personalty, for such purpose, but continued realty as be
Can it be inferred from the preamble of the Act of 1784, or from any other part of the Act, that the Legislature meant to make void a judgment against the ancestor, so far as to take from the creditor the lien which the former laws gave him for the security of his debt; and that the lands, which the former laws appropriated to discharge the execution which issued against the ancestor in his lifetime, should be snatched from the hands of the creditor, by the death of the debtor, and be placed again in a common fund for the satisfaction of all debts generally, instead of his debt particularly ? If entitled to preference, had the ancestor lived, for what reason take away this preference in case of his death ? Had the ancestor given a lien by a mortgage, that lien would have continued, notwithstanding his death; why not, also, the lien acquired by judgment? Suppose th § fieri facias in the hands of the sheriff, in the lifetime of the ancestor, and
When, by the Act of 1789, ch. 39, § 3, it is declared that the heir shall pay the value of lands alienated, before process sued out against him, does not the Legislature impliedly declare that lands aliened after process sued out against the heir are bound by the lien of the judgment which shall be pronounced against the heir upon that process ?
We are next to inquire what effect is produced by the death of the debtor, without leaving any executor or administrator to represent him. Could it even be supposed that, where there was an executor or administrator to be sued, the judgment creditor would be compelled to give up bis lien upon the real estate, and to sue the executor or administrator; yet surely when there is no such executor or administrator whom he could sue, he should be excused from doing so. What! sue a man by description who is .known not to be in existence ? Take out a scire facias against him, and upon two nihils returned get a judgment against the personalty and sell it.
And if the practice holds as well in relation to judgments against ancestors as to those against heirs, it is conclusive in favor of the continuance of the lien after the death of the ancestor. Suppose judgment against the executor, in debt upon a judgment against the ancestor, scire facias against the heir, and the award of execution upon it, which judgment would the purchaser produce, that against the executor or that against the ancestor ? It could not be the award of execution upon the scire facias against the heir, for that, in reality, is no judgment, but only the permission of the Court to have execution of a former judgment; and if that be the judgment against the executor, then the judgment against the ancestor is void from the time of his death, and can never be executed, and cannot overreach any sales made after it. But if the lien continues after the death of the ancestor, then execution ought not to be awarded of the judgment against the executor, this being incompatible with the judgment against the ancestor, — the latter binding the lands from the judgment, the former from a period long subsequent thereto. It follows that no such judgment ought to be gotten against the executor, with a .view to the real estate; and judging upon principle, I should say that, in the case before the Court, the award of execution, without any previous proceeding against the personal representatives of the deceased ancestor was not a void, but a valid judgment; but the law has been decided otherwise by a majority of the Supreme Court, in Boyd and Armstrong’s Heirs, 1 Y. 55, and I must submit to the authority of that decision, though I by no means agree with the reasons upon which it is founded. Upon principle also, I am of opinion that
Okiginax Note. —When a new fieri facias goes after a scire facias, and an award of execution upon it, it binds from its teste, but the elegit, after such award of execution, commands to be extended all the lands of the ancestor which he had on the day of the judgment rendered. And if owe fieri facias against lands is in place of the elegit, it would seem to follow that the fieri facias awarded upon a scire facias will bind the same lands that the elegit would.
Okigistax Note. — So long as the lien continues and the lands do not descend, but are in custodia ¡egis, and the heir does not hold as heir, what hinders him to plead no assets by descent 1 And this would defeat a scire facias against him founded upon a judgment against the executor, and of course any recovery against him through that channel..
Original Note. —Those cases established that the lands were not personalty for the purposes of satisfying execution. And it established, likewise, another principle, that lands were conditionally bound by judgment against the executor; that is to say, unless the heir upon the scire facias against him founded upon that judgment could show that the debt ought to. be paid by the executor. Otherwise, for what purpose issue a scire facias ? And why award execution of that judgment against him if, suopte natura, it did not bind the lands descended to him 1 It would be a perfect anomaly to make a man pay a judgment to which he was not a party, was not in any wise bound, and which, as to him, was completely res inter alios acta. But still, this one case did not settle the law. It was pronounced just before the discontinuance of the courts of North Carolina about the years 1773, 1774, which was immediately followed by the war of the Bevolution, and when the courts were again erected under the new government, the question was not entirely settled. The Act of 1784 was made to solve these doubts. It admitted the conditional lien of the judgment rendered against the executor, the necessity of a scire facias against the heir, and for a sentence of the court upon such scire facias that the creditor should have execution of that judgment against the executor out of the lands descended to the heir. And there are one or two circumstances which show decidedly that the Act of 1784 did not mean to meddle with judgments against the testator. Hirst, the process then used to have a judgment against the. testator levied of his chattels in the hands of his executor -was a scire facias against the executor to have execution out of the assets of the testator in his hands to be administered. This scire facias lay at the common law; it was not introduced like the scire facias by the statute of Westminster, where the judgment had lain dormant for a year and a day. 5 C. D. pleader, scire facias, 3 L. 1; 1 Saund. 219; Dy. 222. And where the creditor sues the executor in an action of debt upon judgment against the testator suggesting a devastavit he must allege in his declaration that the judgment against the testator had been revived upon a scire facias against the executor, which could not be an indispensable allegation, if judgment against the executor, in an action of debt founded upon a judgment against the testator, would have answered the same purpose.
The inference is, that such action of debt upon such judgment may not lie against the executor, but the scire facias only; and if so, may not be any of the actions contemplated by 17S4, ch. 11, upon which judgment may be rendered against the executor after the death of the testator. Upon the scire facias certainly there could not be a judgment against the executor, as the Act of 1784 requires, but only the award of execution or permission to the creditor to take out execution of the judgment against the testator; and then this is not one of the judgments against the executor upon which a scire facias may issue against the heir, by the Act of 1784, but the action there meant, upon which such judgment may be rendered against the executor, as is there intended, is an action not yet passed in remjudicatam. A second circumstance is, that the lands being bound by the judgment against the ancestor, and by that judgment a lien being created which prevents the descent to his heir, he may, to the scire facias upon the judgment against the executor, plead “nothing by descent,” and that being a true plea, would bar the scire facias of the creditor, founded upon the judgment against the executor; and, therefore, the remedy hy scire facias against the heir, provided by the Act of 1784, was adapted only to the case where the lands were not arrested, in their descent to the heir, by a judgment against the ancestor.
OmeiNAn Note. —Suppose A, a creditor, get judgment against the executor, a scire facias against the heir, and an award of the Court that he shall have execution against the heir of the lands descended to him, will not the judgment of the creditor be overreached by the prior judgment and lien of another creditor, obtained against the ancestor in his lifetime ? And will not such scire facias and award of execution obtained by A, be wholly illusory t And if useless as to the creditor, is it not equally so to the heir, who, after the award of execution upon the scire facias of A, will, with respect to the creditor by judgment against the ancestor, be bound and liable precisely as before.
Okiginai. Note. — If there be a lien by the judgment against the ancestor, which, prevents the descent of the lands to the heir, and he may plead to the scire facias upon the judgment against the executor, no assets descended, and so defeat this scire facias, then the lien makes void the scire facias; and if he cannot plead so, then the lien is gone, so that the lien and the scire facias upon the judgment against the executor are incompatible, and cannot stand together, and one is destroyed by the other, and the .only •question is, which shall give way.
Original Note. — Ch. C. 74; Hard. 512; 1 Ch. Rep. 156; 2 C. D. Chancery, Heir, 3, p. 3, page 526. The heir cannot, by pleading an executor and assets in his. hands, compel the creditor to sue him in the first instance by the law before 1784, ch. 11; 2 Saund. 7 (4); Plow. 439; 6 Dy. 204-6; 3 Levinz. 189; 2 P. W. 175.
Original Note. — Before the elegit was introduced, if an ancestor died indebted and his lands descended to his heir, a creditor by specialty, in which the heir was named, might sue the heir and recover against him his debt, to be levied of the whole lands descended, and which were in possession of the heir on the day when the process was sued out against him; 3 Bac. Ab. 30; Plow. 440; 5 Rep. 35; 2 Bl. Rep. 1240; Dy.
Original Note. — I-Iow is it possible to reconcile this opinion with that in 3 Haywood, 305, where it was decided that heirs and devisees could not he proceeded against by description, but must be specially named in the leading process against them ? And that, too, in opposition to the case of Seawell and Jones, decided at Clarksville, which it overruled; it is difficult to conceive, unless for some reason which governs the law, how executors may be sued by description when heirs cannot; though by the rules of the common law, there is no difference, as both may bo sued by description. 2 Saund. 6.
Original Note. — In addition to note (2) p. 378 it may be barely remarked that, by construing the Act of 1789, ch. 39, § 3, to he confined to the scire facias upon judgment against the executor, when it uses the terms “ action commenced or process sued out against him,” and not to comprehend, likewise, actions originally brought against the heir, the same which are spoken of in the Act of 3 and 4 of William and Mary, ch. 5, tj 5, that undesignedly, no doubt, the creditor has been divested of very important advantages ho before possessed ; for now he must first sue the executor and get judgment against him before he can take out the scire facias, a considerable time necessarily elapses, and in the interim the heir may alien the lands, and'thereby the creditor may lose his debt forever; whereas, by the old law, the creditor might have bound the lands by the simple act of suing out process against the heir. The Act of 1789, ch. 39, was made for the benefit of creditors, and does not seem to admit properly of such a construction. Here is an instance to show the great danger there is of superseding the ancient rules of law by constructive implication, when the Legislature has not spoken anywhere of their repeal; and is the more repugnant, as, by the growing notions of modern times, all statutes are to be construed by the letter, and are not to be extended by their spirit; for here is a repeal, hot expressed in terms, but rejected by them, and which is, also, at points with the spirit of the Act, which is not adverse to but promotive of the benefit of creditors. And when this repeal is effected we are next called on to repeal, likewise, the law of liens, and to render judgments, when given, of no effect, by giving to defendants, through the extinction of liens, the power of alienating the property which in justice ought to be liable to their satisfaction. 'How contrary the new rule is to good policy and the dictates of common justice is abundantly evinced by the constant efforts which are made in the Legislature, under the pressure of difficulties which it occasions, to return to the ancient course, and to make the heir liable in the first instance. The Act of 1789, ch. 39, and of 1809, ch. 121, are some of the instances which might be recurred to in support of this remark. And if so much mischief has already been done by impli-cative repeals, we should take warning from them not to repeal by implication the ancient law of liens, which, from the earliest periods, has been invariably observed hitherto ; having been found, by the uniform experience of all ages, to be essential and indispensable to the efficacy of j udgments, and to prevent them from being eluded, by the alienation of the defendant, or by other act voluntarily done or suffered, by him, and without which the courts of the country would not bé able to do effectual justice to the suitors. This exposition of the Act of 1789, ch. 39, § 3, was the parent, likewise, of another inconvenience to the creditor. By considering the scire facias upon the judgment against the executor as the process sued out against the heir, from which the lien should be in operation, it transferred the lien from the judgment against the executor to the date of the scire facias upon it, giving to the debtor the liberty of alienation, even after the time of his judgment, which gave him notice of his danger. Instead of restraining alienation, from the first notice given to the heir of a demand by an action commenced against him, it extends the power of alienation, not only after an action commenced against the executor for the purpose of affecting the land by a conditional judgment against the lands, but even to a point of time subsequent to the pronunciation of that judgment. And this Act of 1789, which seems to have intended an extension to anticipate early
The Legislature, in treating of a remedy after a judgment against an executor upon, an action voluntarily brought against him by the creditor, when they passed the Act of 1784, ch. 11, wereobliged to sa.y that a scire facias upon ajudgment against the executor should be the remedy pursued by the creditor, because his original demand, upon which his action against the executor was founded, became merged and extinguished in the judgment against the executor, and could no longer be used in an action against the heir. But the same necessity for using the scire facias did not apply to cases where judgment had not been obtained against the executor, and, therefore, was not intended to apply to them. These latter cases were left untouched by the Act of 1784, and, with respect to them, the creditor was at liberty to proceed by original action against the heir, as he might have done before the Act of 1784. And when the Assembly, in the preamble of the Act of 1784,spoke of the doubts expressed in the preamble, “ whether heirs and devisees should be liable to the payment of debts upon judgments obtained against executors,” they used the utmost precision, and meant exactly what they expressed, and no more. It had no intention to regulate demands not passed into judgments against executors. It left untouched judgments against ancestors, and demands for which executors had not been sued, and for which no judgments had been obtained against them, leaving them to be governed by the laws already in being concerning them. And what were the laws in being concerning them in the year 1784 ? Real estates in the plantations were, by the 5 of Geo. II. ch. 7, passed in the year of our Lord 1732, made liable to all just debts, and were made “ assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty.”. The liability of real estates and the laws of England in relation to it, were made laws in the plantations, and these were the common law; the statute of Westminster the 2, ch. 18 ; the statutes of 3 and 4 William and Mary, ch. 5 ; 3 and 4 William and Mary, ch. 14; 29 Char. II. ch. 3. The alteration effected by the 5 Geo. II. ch. 7, was a sale of the whole lands by fieri facias, instead of an extent and delivery of half to the creditor. The Act of 1784, ch. 11, admitted the liability of devisees, which was only by the statute of the 3 and 4 William and Mary, ch. 14. There was no necessity for the Act of 1789, ch. 39, to make void devises to the prejudice of creditors ; that had already been done by the Act of 3 and 4 William and Mary, ch. 14 ; nor was there any necessity for the Act of 1789, ch. 39, § 3, to subject heirs for the value of lands alienated before actions commenced against them, for that had already been done by the statute of 3 and 4 William and Mary, ch. 5. A're-enactment of these statutes, in the same words in which they were before conceived, ought to have no other effect than had been produced by the laws re-enacted. But by confining them exclusively to writs of scire facias upon judgments against the executor, the actions against heirs, which the statutes regulated and improved, have been entirely abolished. Some judges of North Carolina, of great celebrity never would yield to this exposition of the Acts of 1784 and 17S9, but maintained the contrary; that original actions might still be brought against heirs, and that original attachments would lie against them. One decision of this sort was made by Judge Johnston, at Ncwbern, and may be found in Yol. II. of Haywood’s Reports.
Had it not been for this exposition of our acts of Assembly, there would have been
By the exposition aforesaid the last two cases were confounded, and, by a late decision, the case of a judgment against the ancestor is also involved in the same common vortex. The perplexities which have'resulted should serve as beacons to keep us clear for the future of going beyond the words of the Legislature, and of repealing by construction whole branches of the juridical system, when such construction is neither necessary nor in any respect useful.