Abercrombie v. Hall , 6 Ala. 657 ( 1844 )

COLLIER, C. 1.

In Lucas v. Doe ex dem. Price, [4 Ala. Rep. 679,] we held, that where an original fieri facias was issued in the lifetime of the defendant, and returned unexecuted, an alias or pluries fi. fa. issued after his death, will not authorise the levy on, and sale of, lands of which the defendant died seized.— That “by the death of the defendant, his lands descend to his heii's, 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 and its assignees, [4 Ala. Rep. 735,] the same question is largely considered, and the same conclusion intimated in no equivocal terms.

These decisions, it would seem, should be regarded as conclusive of the case at bar; but the counsel for the plaintiff, insists, that the act of 1835, “to authorise the issuing of executions in certain cases, and for other purposes,” was entirely overlooked in their consideration, and leads to a different conclusion. That statute* so far as it is necessary to notice it, is merely declarative of the law, and was intended to remove the doubts of professional men, by enacting, that where an execution issues within a year and a day after the rendition' of a judgment, it shall be lawful at any time thereafter, to issue execution on such judgment without suing out a scire facias or other process to revive the same. This enactment is so indicative of its own meaning as not to require the aid of construction. It was not intended to remove the influence of the death of the defendant upon the right to sue out execution in any case. But its purpose was to declare, that where the plaintiff has caused execution to be regularly isued upon his judgment, the judgment shall not lose its vitality by lapse of time only, but an execution may be sued out thereon, at any subsequent period.

If it is necessary to sell the lands of a deceased defendant, and the executor or administrator neglects to apply for an order for that purposse, the statute authorises a judgment creditor to subject them to sale by prosecuting a scire facias according to its directions. [Clay’s Dig. 197, § 27.]

Our conclusion is, that the judgment of the circuit court must be affirmed.