48 A. 163 | Md. | 1901
Lead Opinion
delivered the opinion of the Court:
Ryland & Brooks obtained judgment in the Baltimore City Court against Geo. W. Grafflin and William Coath for $457.16, on June 29th, 1887. The judgment was entered to the use of the Ryland & Brooks Lumber Company which caused a scire' facias to be issued thereon, in which a judgment of fiat was entered on May 8th, 1899. The only defendants to the scire facias were the original judgment debtors, no notice having been taken of their grantees or alienees.
In August, 1892, Maria Coath, the mother of the defendant, William Coath, died intestate, being the owner of a sub-ground rent of $180 per annum issuing out of a lot of ground in Baltimore City. She left three children including William, each of
On June 23rd, 1899, The Ryland & Brooks Lumber Company, after the judgment of fiat had beed entered, issued an attachment reciting both the original judgment and the fiat. On the next day, June 24th, the attachment was levied as per schedule upon the interest of William Coath in the sub-rent of $180., and on July 8th, 1899, it was laid in the hands of Sarah E. Wright.
She appeared to the attachment and pleaded property in herself to the interest in the sub-rent which had been levied on, and also moved to quash the attachment on the same ground and for the further reason that she had not been made a party to the scire facias by which the judgment had been revived before the attachment was issued. The motion to quash and the issue on the attachment were tried at the same time before the Court without a jury, and the Court overruled the motion to quash and rendered a verdict and entered judgment for the plaintiff for the property attached. and the garnishee appealed.
At the trial of the case the Court granted the prayer of the plaintiff which briefly recited the facts already stated in this opinion and asserted the plaintiff's right to a verdict thereon, and it rejected the three prayers of the garnishee which as
The original judgment against Grafflin & Coath was a lien on Coath’s one-third interest in the ground rent of which his mother died intestate. That.lien was not divested by the sale and conveyance of his share of the estate to his sister and the plaintiff might have seized it under a fi. fa. on the original judgment at any time before the issue of the scire facias. But after the judgment of fiat in the scire facias he could not have execution upon his original judgment.
This Court has repeatedly held that the fiat“is considered a new judgment;” Mulliken v. Duvall, 7 G. & J. 355; Weaver v. Boggs, 38 Md. 264; and that it is “the effective judgment” and must be “accurately recited in the process of execution” Hall v. Clagett, 63 Md. 61. In Lambson v. Moffett, 61 Md. 431, this Court cites with approval Roberts v. Pesing, Rolle’s Abridgement, 900, where it was held that the plaintiff who sued out a scire facias within a year and a day after judgment, could not have execution until he had a new judgment in the scire facias, and say that it is authority, if any were needed, for the proposition that where a party unnecessarily sues out a scire facias when he is entitled to and can have an immediate execution, he thereby subjects himself to the inconvenience and delay of having the execution withheld until he obtains a judgment of fiat under the sci. fa.
The remaining question to be determined is whether the lien of the original judgment upon the sub-rent was revive!! by the scire facias to which Mrs. Wright, the vendee of Coath’s interest therein, was not made a party as terre-ténant. The question who are necessary defendants to a scire facias has been frequently before this Court.
In Arnott v. Nicholls, 1 H. & J. 472, which was decided at
In Murphy v. Cord, 12 G. & J. 182, a fi. fa. levied upon lands which had been mortgaged by the defendant within a year and day after the judgment was upheld in an ejectment brought by the mortgagee against the purchaser of the land under the fi. fa., but no opinion was filed in the case and it does not appear upon what grounds or authority the Court relied in making the decision. In Warfield v. Brewer, 4 Gill, 268, the Court expressed the opinion that a fi. fa. issued within a year and day after the entry of the judgment might be levied on lands conveyed by the defendant after the judgment without first issuing a scire facias against the vendee, but the Court relied, in so holding, upon the erroneous assumption that Arnott v. Nicholls, supra, had been overruled by M'Elderry v. Smith, supra. It appears, however, from the record in Warfield v. Brewer, that the expression by the Court of the opinion just mentioned was merely an obiter dictum, as it did not appear in that case whether the alienation of the lands of the defendant had been made before or after the sci. fa. was issued and for that reason, among others, the judgment in favor of the terre-tenant was affirmed.
It has been uniformly held that when the scire facias was not issued until after the year and day, which period was extended
Since the Act of 1884, ch. 178, authorized an execution to be issued upon a judgment at any time within twelve years from its date, this Court has not passed upon the necessity of making the terre-tenants parties to a scire facias issued within that time, but both the practice hitherto pursued in issuing the writ and the principles of pleading seem to require that they should be made parties. So far as they are concerned the proceeding is a new one and it may result in giving vitality for a long time to a burden on their lands which is about to expire. Scire facias although a judicial process “ so far partakes of the nature of an action that the defendant may appear and plead to it in the same manner as to an action founded upon an original writ and the judgment thereon is a new judgment." Weaver v. Boggs, 38 Md. 264. It has been held in several cases that the writ is in the nature of a declaration and that it must “ contain upon its face such a statement of facts as to justify the process in respect to the form in which it issues and the persons who are made parties to it.” Prather v. Manro,
The law in its present status is very liberal toward the plaintiff who may issue execution on his judgment, at any time during the twelve years for which it is alien, and levy upon the lands of the terre-tenant without previous notice to that person. It imposes no hardship upon him' to require that, when he seeks to revive-and extend the lien of the judgment for another twelve years, the parties owning thé land to be affected by the revived lien should have notice and an opportunity to be heard in their own behalf before the fiat goes against them.
. We think that the appellant, Sarah E. Wright, was entitled to notice of the scire facias as térre-tennant and should have been made a défendant to it. The assignment to her of thfe equitable interest of her brother in their mother’s estate, followed as it was by the distribution of it to her in the 'administration account and the subsequent conveyance of the legal title to her by the administrator in pursuance of the order of the Orphans’ Court, and her entry into possession thereunder constituted her an alienee and terre-tenant of his interest in the rent. The omission to make her a party to the scire facias resulted in a failure to revive the lien of the judgment against the interest which she derived from her brother in the ground rent. The second and third prayers of the appellant presented this issue and they should have been granted by the Court below.
Judgment reversed with costs.
Dissenting Opinion
dissented and delivered the following opinion :
For the reasons which are given in the following expression of my views I have felt constrained to dissent, though with
On the 29th of June, 1887, Samuel P. Ryland and Chauncy Brooks, partners, obtained in the Baltimore City Court a judgment for $457.16, with interest and costs against George W. Grafflin, Jr., and William Coath, partners, trading as Grafflin & Co., which was on the 28th of April, 1899, entered to use of the Ryland & Brooks Lumber Company, a body corporate. On the 28th of April, 1899, a writ of scire facias to revive this judgment was issued and was returned as “made known to George W. Grafflin and William Coath, co-partners, trading as Grafflin & Co., by service” on each of the partners in the regular form. On the 8th of May, 1899, judgment of fiat was entered in the scire facias proceeding. On the 23rd of June following the plaintiffs sued out an attachment upon which there was the following return: “Entry made and attached and appraised as per schedule on the 24th day of June, 1899. Notice of this attachment given to Charles F. Evans and John B. Spence, trading as Evans and Spence, occupants in possession of the property attached, described in schedule. Also notice of this attachment given to Sarah E. Wright and Ella C. Dunlap, on the 8th day of July, 1899. Also laid in the hands of Sarah E. Wright on the 8th day of July, 1899, at 1.50 o’clock P. M., in presence of Bernard Schminke, and garnishee summoned.” The property embraced in the schedule accompanying the return was all the right, title, interest, estate, &c., of William Coath in and to a lot of ground with the improvements thereon, and particularly the annual sub-rent issuing thereout of $ 180, which was described as situated on Lombard street, in the City of Baltimore, and as “being the same property subleased by Maria Coath to Moses Moses by sub-lease bearing date the thirty-first day of January, 1868,” &c.
Sarah E. Wright, who was returned as garnishee, appeared
Upon the trial the evidence showed that one Maria Coath, in the month of August, 1892, died intestate, possessed of the annual sub-ground rent of $180 issuing out of the lot of ground described in the schedule returned by the sheriff with the writ of attachment sued out in this case; that William Coath, one of the defendants in this case, Sarah E. Wright, the garnishee, and one Ella C. Dunlap were the next of kin of the said deceased, and entitled, as distributees, to her estate ; that on the 30th day of January, 1894, William Coath executed, in consideration of one thousand dollars, to Sarah E. Wright an assignment of all his “right, title interest and distributive share in and to all the personal estate of” his mother, Maria Coath, which assignment was acknowledged before a justice of the peace and recorded in the office of the Register of Wills of Baltimore City ; that William Coath, as administrator of the estate of Maria Coath, in making distribution thereof, distributed to “Sarah E. Wright, a daughter of the intestate and assignee of the distributive share” of himself, “a son of said deceased, under deed dated January 30th, 1894, left to be recorded in the office of the register of wills, two undivided one-third interests in the annual sub-rent of $ 180,” &c., and to Ella C. Dunlap “one undivided one-third interest” in the said sub-rent; and that thereafter, in pursuance of an order of the Orphans’ Court the said administrator executed on the 23rd day of April, 1894, to the said Sarah E. Wright and the said Ella Dunlap a deed of the said
Upon this evidence under the pleadings the plaintiffs offered a prayer which the Court granted ; and the garnishee offered three prayers to the effect that there was no evidence- legally sufficient to sustain a verdict for the plaintiff; or to entitle plaintiff to a judgment of condemnation of the lands and tenements mentioned, &c.; or to show that the' defendants or either had any right, title’ ■ or interest in or 'to said lands and tenements 'at the time of entering up the judgment upon'which the attachment was-issued or at the laying of the attachment or at any time since. ' These prayers the Court rejected. The action of the Cou'rt upon the prayers is the subject of the first exception contained in the record. The garnishee then made a motion to quash the attachment upon the grounds set up as a defense in her pleas and upon the additional ground that the original judgment upon which the attachment was issued, was extended June '29th, 1887, and scire facias proceedings to renew the same were instituted by plaintiffs on April 28th, 1889, and judgment of fiat'was entered thereon on May 8th, 1889; and that the defendant, William Coath, had prior to these proceedings in scire facias, by a good and valid deed “assigned, conveyed and granted to the garnishee the lands and tenements mentioned in the schedule annexed to the sheriff’s return, and at the time of the institution of said proceedings in scire facias the garnishee was an alienee ór terre-tenant of said lands and tenements deriving title from said Coath ; and that said garnishee was not made a party defendant in said scirefacias proceedings, and was not served with the writ of scire facias; nor were the lands and tenements mentioned in said schedule' annexed to the shertff’s return in this attachment case,'described in the sheriff’s return in said scire facias proceedings ; and the defendant, Grafflin, has not now, and never
■ The attachment issued in this case recited the original judgment against the defendants therein, and also the scire facias proceedings and the judgment of fiat thereon, which was. proper (Hall v. Clagett et al., 63 Md. 57), and showed upon its face that the garnishee had not been brought in under the. scire facias and made a party to that proceeding. The real question in the ease, though there' is some confusion in the record in presenting it, is whether this omission to so bring in the garnishee under the scire facias proceedings as terre-tenant is fatal to the attachment as levied against the property described in the sheriff’s schedule, which is now possessed by the garnishee under .the circumstances detailed in-the proof. At the death of his mother, Maria Coath, in 1892, William Coath became entitled to an equitable interest in the property levied upon under the attachment in this case, to the extent of one undivided third part thereof as one of her distributees ;• and this interest immediately became subject to the lien of the original judgment rendered against him and his partner on. June 29th, 1887; 2 Code, Art. 83, sec. 1; 1 Code, Art. 26 sec. 19; and subject to the payment of the debts of the deceased, and to abide the due administration of her estate, was liable to immediate execution thereunder as-the law then stood. Formerly execution could not have been had, where the judgment had been standing for a year and a day, unless the same was first revived by scire facias proceedings. This was first changed by Act of 1823, ch. 194, which extended the time, within which execution might issue, without a resort to scire
Under the law as it stood prior to the Act of 1823, it was at one time held by the General Court that no execution could be levied on land which the judgment debtor had aliened, after judgment, bona fide and for a valuable consideration, although when so aliened a year and a day had not expired and the j udgment w'as still alive, unless a scire facias had been sued out and fiat had against the alienee. Arnott, &c., v. Nicholls, I Har. & John. 471. But this case was subsequently overruled in the case of McEldery v. Smith, 2 Har. & John. 72, as interpreted in the case of Warfield v. Brewer, 4 Gill, 265, where it is said that the law was then settled “ that if the fieri facias be issued within a year'and a day (now three years), after the rendition of the jüdgment it may be levied as well on land conveyed by the defendant after the judgment as on lands belonging to him at the time of levying the fieri facias.” In the case of McEldery v. Smith, the alienation was made pending scire facias proceedings to revive the judgment, and execution was levied by the plaintiffs upon the' land aliened, under the judgment of fiat upon said proceedings without having proceeded by 'scire facias against the alienees. This the General Court held to be irregular, but this decision was reversed by the Court of Appeals. In the subsequent case of Murphy v. Cord, 12 Gill & John. 182, a judgment was obtained against a certain John Dallam, who, within a year and a day after the rendition of the judgment (on the 6th of February, 1822), executed a mortgage of the lands which w'ere subject to the lien of the judgment. The plaintiffs in the judgment not having issued execution on the same within a year and a day instituted a
The facts in reference to which these several rulings were made show them to have been that where a judgment debtor aliened lands, subject to the lien of the judgment, while the judgment was still alive a fieri facias issued upon the judgment, subsequent to such alienation, and before it became dormant could' be levied upon such lands without first suing out a scire f acids against the alienee. And that where a scire facias had been sued out against the original defendant in a judgment, while the judgment was yet alive, to have it revived, and pending the proceeding on the scire facias, but after the time had elapsed when, in the absence of proceedings to revive, the judgment would have become dormant, lands subject to the lien were aliened, a fieri facias under the judgment of fiat could be levied upon such lands without first proceeding by scire facias against the alienee. Lastly, that where lands subject to a judgment were aliened when the judgment was still alive if subsequently it was revived by scire facias against the original defendant to which the alienee was not a party, execution could be had against the lands so aliened under the judgment of fiat. The effect of these rulings was to require that, in the conditions named, all parties should, at their peril, take notice of the rights of the judgment creditor. This was entirely consistent with the reason given for requiring scire facias to revive judgments remaining unexecuted, first, for a year and a day and then (under the Act of 1823) far three years, before execution 'could be had of them. This reason was that after such lapse of time the judgment was presumed to be satisfied or released. Foster's Writ of Sci. Fa., 3 (marg.), 3 Bac. Abridg. 724; Johnson v. Lemmon, 37 Md. 336-343. In
Now, under our statutes which have been referred to, the law as it now stands, and as it stood at the date of the original judgment in the case, neither raises nor suggests any.presumption of satisfaction or release of a judgment during the period of twelve years that it remains a lien on the real and leasehold property of the judgment debtor. During that period it is unnecessary to have scire facias proceedings to revive the judgment for. the purpose of executing the same, for the statute now provides, and did so provide at the date of the original judgment here, that execution may issue “at any time within twelve years from the date of judgment,” or that it “may be otherwise proceeded with within twelve years from its date.” So that the judgment is continued and invested with its full “active energy” during the full period of twelve years. It is also further provided “that at any time before the expiration of twelve years from the date of any judgment or decree, or in case of the death or marriage of any defendant in the judgment, the plaintiff shall have right to have a writ of scire facias to renew or revive the same.” When, therefore, a purchaser, or alienee, takes property subject to the lien of a judgment under our present statute law, he does so with notice of the existence of an active, live judgment upon which process of execution may issue at any moment.
The rights of a plaintiff in a judgment under our present statute law, with respect to continuing the effectiveness of the same, may be likened to his right to issue an execution “ to lie ’ ’ and renewing the same from term to term whereby the judgment may be kept alive, and operative for an indefinite time. Hagerstown Bank v. Thomas et al., 35 Md. 511. Here, according to the authority just cited, the judgment creditor by the proceeding of issuing an execution “ to lie ” preserves the effectiveness of the judgment and its priority over subsequent lienors ; and for the same reason he would be protected against subsequent purchasers. This reason must be that the law requires all parties to take notice of the rights of the judgment creditor who by the proceeding of having execution issued and repeated from term to term puts on record notice of his rights. Why would it not be even more consonant w'ith reason to require of all parties to take notice at their peril of the rights secured to the judgment creditor by our present statute law as to continuing the effectiveness of his judgment when they are notified by the public records of the existence of a live, active judgment and by the law of the right of the party holding the lien to have it renewed and kept indefinitely in active force ? This would seem to be in accord with the spirit and policy of the legislation in question; the
If the foregoing views be correct there is no error in the ruling in which the trial Court refused to sustain the motion to quash the attachment in this case.
The grounds upon which the motion was based are all at variance with these views. As to the first three grounds, the extent to which they are supported by the evidence is that the title to the property upon which the attachment was levied devolved upon William Coath, one of the defendants in the case, as distributee of the estate of his mother, pending the original judgment which was revived by proceeding on scire facias; and that prior to this proceeding to which the garnishee was not a party the property had been assigned by him and subsequently to his assignment conveyed by deed from the administrator of his mother’s estate to the garnishee. It would follow from the-views herein expressed that these facts could not avail to defeat the attachment-. The fourth ground of the motion did nothing more than to set out and detail these facts. In reference to the first exception the prayers of the defendant were in my judgment properly rejected. There was evidence to sustain the verdict, and evidence sufficient to entitle the plaintiffs to condemnation of the property, which was' the subject of the levy and which was described in the sheriffs return in the case. The first two prayers of the defendant assert propositions to the contrary of this. The third prayer was based on the facts herein already recited in disposing of the motion to quash as being the basis of the allegations in the first three grounds of the motion which, as we have seen, do not support the legal conclusion deduced therefrom by the prayer. The prayer of the plaintiffs may have been open to criticism in' its assump
I am of the opinion the judgment below ought to be affirmed.
Lead Opinion
Ryland Brooks obtained judgment in the Baltimore City Court against Geo. W. Grafflin and William Coath for $457.16, on June 29th, 1887. The judgment was entered to the use of the Ryland Brooks Lumber Company which caused a scire facias to be issued thereon, in which a judgment of fiat was entered on May 8th, 1899. The only defendants to the scire facias were the original judgment debtors, no notice having been taken of their grantees or alienees.
In August, 1892, Maria Coath, the mother of the defendant, William Coath, died intestate, being the owner of a sub-ground rent of $180 per annum issuing out of a lot of ground in Baltimore City. She left three children including William, each of *653 whom was entitled to an undivided one-third of her estate. He assigned his interest in the estate shortly before the distribution thereof to his sister Sarah E. Wright by a deed duly executed and acknowledged, which was lodged in the office of the Register of Wills of Baltimore City, but was not recorded in the land records. The assignment recited a consideration of $1,000. and its bona fides is not assailed in the record. By the final administration account of the estate two-thirds of the net residue, including the sub-rent of $180 was distributed to Sarah E. Wright, and a conveyance thereof was made to her by the administrator under the order of the Orphans' Court and she entered into possession of it. That conveyance was duly recorded in the land records, on August 16th, 1894, nearly four years before the issuing of the scire facias on the judgment against Grafflin Coath.
On June 23rd, 1899, The Ryland Brooks Lumber Company, after the judgment of fiat had been entered, issued an attachment reciting both the original judgment and the fiat. On the next day, June 24th, the attachment was levied as per schedule upon the interest of William Coath in the sub-rent of $180., and on July 8th, 1899, it was laid in the hands of Sarah E. Wright.
She appeared to the attachment and pleaded property in herself to the interest in the sub-rent which had been levied on, and also moved to quash the attachment on the same ground and for the further reason that she had not been made a party to the scirefacias by which the judgment had been revived before the attachment was issued. The motion to quash and the issue on the attachment were tried at the same time before the Court without a jury, and the Court overruled the motion to quash and rendered a verdict and entered judgment for the plaintiff for the property attached and the garnishee appealed.
At the trial of the case the Court granted the prayer of the plaintiff which briefly recited the facts already stated in this opinion and asserted the plaintiff's right to a verdict thereon, and it rejected the three prayers of the garnishee which asserted *654 that there was no evidence legally sufficient to entitle the plaintiff to a verdict, or to entitle it to a condemnation of the property levied on, or to show that the defendant had any interest therein either when the judgment was rendered, or when the attachment was issued, or at any time since. There are two bills of exceptions one on the Courts action on the prayers and the other to the refusal of the motion to quash.
The original judgment against Grafflin Coath was a lien on Coath's one-third interest in the ground rent of which his mother died intestate. That lien was not divested by the sale and conveyance of his share of the estate to his sister and the plaintiff might have seized it under a fi. fa. on the original judgment at any time before the issue of the scire facias. But after the judgment of fiat in the scire facias he could not have execution upon his original judgment.
This Court has repeatedly held that the fiat "is considered anew judgment;" Mulliken v. Duvall, 7 G. J. 355; Weaver
v. Boggs,
The remaining question to be determined is whether the lien of the original judgment upon the sub-rent was revived by the scirefacias to which Mrs. Wright, the vendee of Coath's interest therein, was not made a party as terre-tenant. The question who are necessary defendants to a scire facias has been frequently before this Court.
In Arnott v. Nicholls, 1 H. J. 472, which was decided at *655 a time when the law required a judgment to be revived by a scirefacias after a year and a day from its date before a fi. fa. could issue upon it, the Court held that if a defendant sells and conveys his lands bona fide for a valuable consideration after the judgment, even within the year and day, no execution can issue against the lands of the vendee until a scire facias has been sued out on the judgment and notice given to him as terre-tenant. That case has been erroneously referred to as having been overruled by M'Elderry v. Smith, 2 H. J. 72, but an inspection of the latter case shows that it did not overrule the former one at all, but simply decided that where the defendant aliened his land during the pendency of a scirefacias the plaintiff, after a fiat on the scire facias, might issue a fi. fa. and levy it on the land so aliened, without proceeding against the parties who become vendeespendente lite.
In Murphy v. Cord, 12 G. J. 182, a fi. fa. levied upon lands which had been mortgaged by the defendant within a year and day after the judgment was upheld in an ejectment brought by the mortgagee against the purchaser of the land under the fi. fa., but no opinion was filed in the case and it does not appear upon what grounds or authority the Court relied in making the decision. In Warfield v. Brewer, 4 Gill, 268, the Court expressed the opinion that a fi. fa. issued within a year and day after the entry of the judgment might be levied on lands conveyed by the defendant after the judgment without first issuing a scire facias against the vendee, but the Court relied, in so holding, upon the erroneous assumption thatArnott v. Nicholls, supra, had been overruled by M'Elderry v. Smith, supra. It appears, however, from the record inWarfield v. Brewer, that the expression by the Court of the opinion just mentioned was merely an obiter dictum, as it did not appear in that case whether the alienation of the lands of the defendant had been made before or after the sci. fa. was issued and for that reason, among others, the judgment in favor of the terre-tenant was affirmed.
It has been uniformly held that when the scire facias was not issued until after the year and day, which period was extended *656
by Act of 1823, ch. 194, to three years, during which execution might issue without resort to scire facias, it was necessary to make the alienees after judgment parties to the writ if it was desired to affect the lands conveyed to them. In Warfield v.Brewer, supra, the Court says: "We know, however, of no decision of our Courts that when the judgment is to be revived it is not necessary to make the terre-tenant a party in order to proceed against his land or that he is to be bound by any scirefacias issued after the alienation, to which he was not a party." In Polk v. Pendleton,
Since the Act of 1884, ch. 178, authorized an execution to be issued upon a judgment at any time within twelve years from its date, this Court has not passed upon the necessity of making the terre-tenants parties to a scire facias issued within that time, but both the practice hitherto pursued in issuing the writ and the principles of pleading seem to require that they should be made parties. So far as they are concerned the proceeding is a new one and it may result in giving vitality for a long time to a burden on their lands which is about to expire. Scire facias
although a judicial process "so far partakes of the nature of anaction that the defendant may appear and plead to it in the same manner as to an action founded upon an original writ and the judgment thereon is a new judgment." Weaver v. Boggs,
The law in its present status is very liberal toward the plaintiff who may issue execution on his judgment, at any time during the twelve years for which it is a lien, and levy upon the lands of the terre-tenant without previous notice to that person. It imposes no hardship upon him to require that, when he seeks to revive and extend the lien of the judgment for another twelve years, the parties owning the land to be affected by the revived lien should have notice and an opportunity to be heard in their own behalf before the fiat goes against them.
We think that the appellant, Sarah E. Wright, was entitled to notice of the scire facias as terre-tennant and should have been made a defendant to it. The assignment to her of the equitable interest of her brother in their mother's estate, followed as it was by the distribution of it to her in the administration account and the subsequent conveyance of the legal title to her by the administrator in pursuance of the order of the Orphans' Court, and her entry into possession thereunder constituted her an alienee and terre-tenant of his interest in the rent. The omission to make her a party to the scire facias resulted in a failure to revive the lien of the judgment against the interest which she derived from her brother in the ground rent. The second and third prayers of the appellant presented this issue and they should have been granted by the Court below.
Judgment reversed with costs.
(Decided February 8th, 1901.)
JONES, J., dissented and delivered the following opinion:
For the reasons which are given in the following expression of my views I have felt constrained to dissent, though with *658 great respect, from the conclusions of the Court in this case. Though the facts of the case appear in the opinion of the Court it will conduce perhaps to a better understanding of the views I shall here submit, to accompany them with a particular statement of the facts.
On the 29th of June, 1887, Samuel P. Ryland and Chauncy Brooks, partners, obtained in the Baltimore City Court a judgment for $457.16, with interest and costs against George W. Grafflin, Jr., and William Coath, partners, trading as Grafflin Co., which was on the 28th of April, 1899, entered to use of the Ryland Brooks Lumber Company, a body corporate. On the 28th of April, 1899, a writ of scire facias to revive this judgment was issued and was returned as "made known to George W. Grafflin and William Coath, co-partners, trading as Grafflin Co., by service" on each of the partners in the regular form. On the 8th of May, 1899, judgment of fiat was entered in the scire facias proceeding. On the 23rd of June following the plaintiffs sued out an attachment upon which there was the following return: "Entry made and attached and appraised as per schedule on the 24th day of June, 1899. Notice of this attachment given to Charles F. Evans and John B. Spence, trading as Evans and Spence, occupants in possession of the property attached, described in schedule. Also notice of this attachment given to Sarah E. Wright and Ella C. Dunlap, on the 8th day of July, 1899. Also laid in the hands of Sarah E. Wright on the 8th day of July, 1899, at 1.50 o'clock P.M., in presence of Bernard Schminke, and garnishee summoned." The property embraced in the schedule accompanying the return was all the right, title, interest, estate, c., of William Coath in and to a lot of ground with the improvements thereon, and particularly the annual sub-rent issuing thereout of $180, which was described as situated on Lombard street, in the City of Baltimore, and as "being the same property sub-leased by Maria Coath to Moses Moses by sub-lease bearing date the thirty-first day of January, 1868," c.
Sarah E. Wright, who was returned as garnishee, appeared *659 to the attachment and pleaded: 1st, that the land and tenements mentioned in the schedule annexed to the sheriff's return at the time of entering up the judgment upon which the attachment was issued, and at the time of laying the said attachment were and always since have been and still are, her property; 2nd, that they did not at any of the times mentioned belong to the defendants, nor to either of them; and, 3rd, the defendants did not at any of said times nor did either of them have any right, title or interest in or to said lands and tenements. The plaintiffs traversed the pleas and upon issues joined the case was submitted to the Court for trial.
Upon the trial the evidence showed that one Maria Coath, in the month of August, 1892, died intestate, possessed of the annual sub-ground rent of $180 issuing out of the lot of ground described in the schedule returned by the sheriff with the writ of attachment sued out in this case; that William Coath, one of the defendants in this case, Sarah E. Wright, the garnishee, and one Ella C. Dunlap were the next of kin of the said deceased, and entitled, as distributees, to her estate; that on the 30th day of January, 1894, William Coath executed, in consideration of one thousand dollars, to Sarah E. Wright an assignment of all his "right, title interest and distributive share in and to all the personal estate of" his mother, Maria Coath, which assignment was acknowledged before a justice of the peace and recorded in the office of the Register of Wills of Baltimore City; that William Coath, as administrator of the estate of Maria Coath, in making distribution thereof, distributed to "Sarah E. Wright, a daughter of the intestate and assignee of the distributive share" of himself, "a son of said deceased, under deed dated January 30th, 1894, left to be recorded in the office of the register of wills, two undivided one-third interests in the annual sub-rent of $180," c., and to Ella C. Dunlap "one undivided one-third interest" in the said sub-rent; and that thereafter, in pursuance of an order of the Orphans' Court the said administrator executed on the 23rd day of April, 1894, to the said Sarah E. Wright and the said Ella Dunlap a deed of the said *660 annual sub-rent, giving to the former two, and to the latter one, undivided interest in the same. This deed was duly recorded among the land records of Baltimore City, and by virtue of this deed and of the before-mentioned assignment the said Sarah E. Wright and Ella Dunlap entered into possession of their respective interests in and to said sub-rent.
Upon this evidence under the pleadings the plaintiffs offered a prayer which the Court granted; and the garnishee offered three prayers to the effect that there was no evidence legally sufficient to sustain a verdict for the plaintiff; or to entitle plaintiff to a judgment of condemnation of the lands and tenements mentioned, c.; or to show that the defendants or either had any right, title or interest in or to said lands and tenements at the time of entering up the judgment upon which the attachment was issued or at the laying of the attachment or at any time since. These prayers the Court rejected. The action of the Court upon the prayers is the subject of the first exception contained in the record. The garnishee then made a motion to quash the attachment upon the grounds set up as a defense in her pleas and upon the additional ground that the original judgment upon which the attachment was issued, was extended June 29th, 1887, and scire facias proceedings to renew the same were instituted by plaintiffs on April 28th, 1889, and judgment offiat was entered thereon on May 8th, 1889; and that the defendant, William Coath, had prior to these proceedings inscire facias, by a good and valid deed "assigned, conveyed and granted to the garnishee the lands and tenements mentioned in the schedule annexed to the sheriff's return, and at the time of the institution of said proceedings in scire facias the garnishee was an alienee or terre-tenant of said lands and tenements deriving title from said Coath; and that said garnishee was not made a party defendant in said scire facias proceedings, and was not served with the writ of scire facias; nor were the lands and tenements mentioned in said schedule annexed to the sheriff's return in this attachment case, described in the sheriff's return in said scire facias proceedings; and the defendant, Grafflin, has not now, and never *661 at any time had any right, title, interest or estate in and to said lands and tenements." The motion to quash was submitted by counsel to the Court upon the evidence that had already been given in the case and was overruled by the Court. This action of the Court was made ground for the second exception by the garnishee as disclosed by the record. After the overruling of the motion to quash a verdict was entered by the Court for the plaintiff followed by "judgment of condemnation of the property attached as per schedule" from which the appeal here was taken.
The attachment issued in this case recited the original judgment against the defendants therein, and also the scirefacias proceedings and the judgment of fiat thereon, which was proper (Hall v. Clagett et al.,
Under the law as it stood prior to the Act of 1823, it was at one time held by the General Court that no execution could be levied on land which the judgment debtor had aliened, after judgment, bona fide and for a valuable consideration, although when so aliened a year and a day had not expired and the judgment was still alive, unless a scire facias had been sued out andfiat had against the alienee. Arnott, c., v. Nicholls, 1 Har. John. 471. But this case was subsequently overruled in the case of McEldery v. Smith, 2 Har. John. 72, as interpreted in the case of Warfield v. Brewer, 4 Gill, 265, where it is said that the law was then settled "that if the fieri facias be issued within a year and a day (now three years), after the rendition of the judgment it may be levied as well on land conveyed by the defendant after the judgment as on lands belonging to him at the time of levying the fieri facias." In the case of McEldery v. Smith, the alienation was made pending scire facias proceedings to revive the judgment, and execution was levied by the plaintiffs upon the land aliened, under the judgment of fiat upon said proceedings without having proceeded by scire facias against the alienees. This the General Court held to be irregular, but this decision was reversed by the Court of Appeals. In the subsequent case ofMurphy v. Cord, 12 Gill John. 182, a judgment was obtained against a certain John Dallam, who, within a year and a day after the rendition of the judgment (on the 6th of February, 1822), executed a mortgage of the lands which were subject to the lien of the judgment. The plaintiffs in the judgment not having issued execution on the same within a year and a day instituted a *663 scire facias proceeding and obtained a fiat thereon, but did not make the mortgagee a party to this proceeding. On this judgment of fiat execution was issued under which the mortgaged premises were levied upon and sold, and it was held by the County Court and affirmed on appeal that the mortgagee could not maintain ejectment against the purchaser. In affirmance of rulings in this case see Doub v. Barnes, 4 Gill, 1 (page 11).
The facts in reference to which these several rulings were made show them to have been that where a judgment debtor aliened lands, subject to the lien of the judgment, while the judgment was still alive a fieri facias issued upon the judgment, subsequent to such alienation, and before it became dormant could be levied upon such lands without first suing out a scirefacias against the alienee. And that where a scire facias had been sued out against the original defendant in a judgment, while the judgment was yet alive, to have it revived, and pending the proceeding on the scire facias, but after the time had elapsed when, in the absence of proceedings to revive, the judgment would have become dormant, lands subject to the lien were aliened, afieri facias under the judgment of fiat could be levied upon such lands without first proceeding by scire facias against the alienee. Lastly, that where lands subject to a judgment were aliened when the judgment was still alive if subsequently it was revived by scire facias against the original defendant to which the alienee was not a party, execution could be had against the lands so aliened under the judgment of fiat. The effect of these rulings was to require that, in the conditions named, all parties should, at their peril, take notice of the rights of the judgment creditor. This was entirely consistent with the reason given for requiring scire facias to revive judgments remaining unexecuted, first, for a year and a day and then (under the Act of 1823) for three years, before execution could be had of them. This reason was that after such lapse of time the judgment was presumed to be satisfied or released. Foster's Writ of Sci.Fa., 3 (marg.), 3 Bac. Abridg. 724; Johnson v. Lemmon,
Now, under our statutes which have been referred to, the law as it now stands, and as it stood at the date of the original judgment in the case, neither raises nor suggests any presumption of satisfaction or release of a judgment during the period of twelve years that it remains a lien on the real and leasehold property of the judgment debtor. During that period it is unnecessary to have scire facias proceedings to revive the judgment for the purpose of executing the same, for the statute now provides, and did so provide at the date of the original judgment here, that execution may issue "at any time within twelve years from the date of judgment," or that it "may be otherwise proceeded with within twelve years from its date." So that the judgment is continued and invested with its full "active energy" during the full period of twelve years. It is also further provided "that at any time before the expiration of twelve years from the date of any judgment or decree, or in case of the death or marriage of any defendant in the judgment, the plaintiff shall have right to have a writ of scire facias to renew or revive the same." When, therefore, a purchaser, or alienee, takes property subject to the lien of a judgment under our present statute law, he does so with notice of the existence of an active, live judgment upon which process of execution may issue at any moment. *665 There is no fiction to excuse any want of care. Not only so, but he has notice that the judgment may, by the express terms of the statute, be revived by scire facias at any time during the twelve years and so have its "active energy" continued indefinitely. Is it not reasonable to suppose that a purchaser in taking property under such circumstances has provided for his own protection? And ought the law not to require this of him rather than expose the plaintiff in the judgment to further expense and the risk of further litigation with such purchaser or alienee by exacting the giving of a notice to him of the rights of the plaintiff under the judgment before they can be enforced against property taken subject to those rights? Would it not be more just and reasonable to treat him as already having notice of these rights?
The rights of a plaintiff in a judgment under our present statute law, with respect to continuing the effectiveness of the same, may be likened to his right to issue an execution "to lie" and renewing the same from term to term whereby the judgment may be kept alive and operative for an indefinite time. HagerstownBank v. Thomas et al.,
If the foregoing views be correct there is no error in the ruling in which the trial Court refused to sustain the motion to quash the attachment in this case.
The grounds upon which the motion was based are all at variance with these views. As to the first three grounds, the extent to which they are supported by the evidence is that the title to the property upon which the attachment was levied devolved upon William Coath, one of the defendants in the case, as distributee of the estate of his mother, pending the original judgment which was revived by proceeding on scire facias; and that prior to this proceeding to which the garnishee was not a party the property had been assigned by him and subsequently to his assignment conveyed by deed from the administrator of his mother's estate to the garnishee. It would follow from the views herein expressed that these facts could not avail to defeat the attachment. The fourth ground of the motion did nothing more than to set out and detail these facts. In reference to the first exception the prayers of the defendant were in my judgment properly rejected. There was evidence to sustain the verdict, and evidence sufficient to entitle the plaintiffs to condemnation of the property, which was the subject of the levy and which was described in the sheriff's return in the case. The first two prayers of the defendant assert propositions to the contrary of this. The third prayer was based on the facts herein already recited in disposing of the motion to quash as being the basis of the allegations in the first three grounds of the motion which, as we have seen, do not support the legal conclusion deduced therefrom by the prayer. The prayer of the plaintiffs may have been open to criticism in its assumption *668 of some of the facts which were embodied therein but no special exceptions were filed, and it was substantially correct in the legal proposition it asserted. After rehearsing the facts which had appeared in evidence other than those that appeared on the face of the proceedings on the attachment it in effect asked the Court to rule as matter of law that the one undivided third interest which passed to William Coath as distributee of his mother's estate was subject to the lien of the plaintiff's judgment and liable to condemnation under the attachment, notwithstanding the transfer of this interest by him to the garnishee by the assignment of the 30th of January, 1894, and the subsequent deed by him as administrator, dated the 23rd of April, 1894, to the garnishee and Ella C. Dunlap. This legal conclusion is in accord with the views expressed herein.
I am of the opinion the judgment below ought to be affirmed.
(Filed August 14th, 1901.)
