Hanson v. Barnes' Lessee , 3 G. & J. 359 ( 1831 )

Archer, J.,

delivered the opinion of the court.

It is supposed, that the death of the defendant, before a levy on the fieri facias, although it was issuéd, and in the hands of the sheriff before his death, would render a scire. facias against the heirs and ierre tenants necessary, and that the sale, made under a fieri facias thus issued, and thus levied, passed no title to the purchaser.

Whether the alienation of land to a bona fide purchaser, or its descent to the heir before any steps are taken by the plaintiff, to put his judgment in execution, would render a scire facias against the heirs and terre tenants indispensable, it is not necessary to determine. For the question presented here, is whether pending proceedings in execution of the judgment, and which were all rightful and proper, at the time of their institution, the death of the defendant suspends them in point of law, or if in fact they are after-wards put in execution, the law declares them void. If this were a question connected with a levy on personal property, it would be too clear for discussion. The execution would go on, and the plaintiff would have a right to reap the fruits of his judgment. But this is a levy on land. Should it be governed by different principles ? There is no process of execution in England, bearing an exact affinity to our fieri facias, so far as this question is concerned. We will, however, proceed to notice those, which bear to it the strongest resemblance.

A writ of sequestration, being a personal process, grounded on a contempt, and requiring the further order, or action of the court, to give it an effect beneficial to the plaintiff, it is remarkable that it should have been doubted, whether it did not abale de facto, by the death of the defendant. Yet it appears to have been long in uncertainty ; but it is now settled, that it does abate by the death of the defendant. 3 Atk. Burdett vs. Rockey, 1 Vern. 58. 2 P. Wm. 621. Wharam vs. Broughton, 1 Ves. Sen. 182. These determinations will show the diversity of views which have been entertained on the subject, and the latter opinions of the court, will show that its abating,' depends upon reasons and principles which will not apply to the process, under consideration. '

The writ of extent on a statute merchant, will not abate by the death of the defendant; 2 P. Wm’s. 621.; and. in 2 Saund. 70, (C) it is said, that an extent shall go, notwithstanding the death of the defendant shall be returned on a capias si laicus. And the same doctrine would seem to be deducible, with regard to a writ of extendi facias, issued on a statute staple, or on a recognizance in the nature of a statute staple from 2 Saund'. 70, (C) in which the nature and character of the sheriff’s return, with regard to the lands extended, where the sheriff shall return the death of the defendant, is pointed out. The same princL pies would seem to apply to the writ of elegit, in which any future action of the court, to give the plaintiff the entire benefit of his execution becomes unnecessary; for the inquisition, appraisement, and delivery of a moiety of the lands, is done under the direction of the sheriff and the authority of the elegit itself. Like the writs of elegit and extendi facias upon a statute merchant, the fieri facias requires no other order or action of the court, to give to the plaintiff the fruits of his execution. These are reaped, when the sheriff discharges his duty under the process. The mandate goes to the sheriff to seize and sell the lands, and if it be regular in its inception, he derives his authority from the writ, and is bound to execute it. Unlike the original writs, judicial writs do not in general abate by the death of the party. 1 Bac. Abr. title Abatement.

The general principle, that where a new person is to be benefitted, or charged by the execution of the judgment, there ought to be a scire facias to make him a party, is ad- : mitted ; but it cannot apply to a case, where the new party becomes interested, after the process is regularly in the, hands of the officer for execution. If this be riot an exception to the rule, and a scire facias against the heirs and terre tenants be necessary, then successive alienations and descents, might defeat the plaintiff, ad infinitum. Even excessive vigilance could not always secure to the plaintiff the satisfaction of his judgment.

It supposed that there existed no right under the fieri facias to levy on the lands, if there was a sufficiency of personal property to satisfy the judgment. Under the writ of elegit, if there be enough of personal goods, the sheriff ought not to levy on the lands. But this duty of the officer under the writ of elegit, grows out of the statute of West. 2. 13 Edw. 1. ch. 18, which gave that writ. But the statute of 5 Geo. 2, ch. 7, stripped lands in the Plantations, of the sanctity with which they had been guarded, and by subjecting them to sale, no longer considered them as a secondary fund for the payment of debts in the hands of the debtor, but rendered them equally liable with his personalty. It is at the election of the plaintiff, whether he will seize lands or goods, and this has always been the construction of the statute, unless under peculiar circumstances of equity he shall be restrained from exercising his election, to the prejudice of an alienee, devisee or heir. It is true, that after the death of a debtor, lands are only secondarily liable; but this must be taken with the qualification, that prior to the death of the debtor, they had not become liable to be affected by an execution. It does not appear from the evidence in the cause, that any endorsation was made on the back of the writ, as the statute demands of the sheriff, of the day of its delivery to him, and it is therefore supposed that parol evidence to establish that date is inadmissible. If this idea be correct, there exists scarcely a case in Maryland, in which the date of a delivery of a fieri facias to the sheriff, could be proved. This requisition has in practice been neglected, and fallen into disuse. To give the statute such a construction here, would make its provision in this respect a dead letter. Its object, was only directory to the officer, that means might be placed in the power of every one, to derive benefit from the salutary provisions of the statute; and was not meant to exclude other evidence, should that officer neglect his duty. Bealls vs. Guernsey, 8 Johns. 52. There is then proof in the record, that the fieri facias was delivered to the sheriff before the death of the debtor, if it were material to have established that fact. But suppose the fact had not been established, but that merely an execution had been issued by the plaintiff in the judgment; it is most certain that lands in the seizin of the heir, might be levied upon, because the statute renders them liable to seizure, sale, and disposition, in the same manner as personal property; and in such a case, the levy could have been made on the personal property, in the hands of the executor; for the judgment and execution, binds the personal property from the day of the signing of the judgment, and the test of the writ of execution, against the party himself, and all other persons except purchasers. 1 Saund. Rep. 219, f. It is true, that the fieri facias does not bind land, as it does personal property from the delivery of the writ to the sheriff. The statute of Charles II. only applying to goods, but the lien on the lands is from the rendition of the judgment, and the right to execution of lands in the tenure of the heir., grows out of the statute of 5 Geo. 2, ch. 7, in connexion with that lien.

It does not become necessary to express an opinion how far the sheriff’s sale would be operative, to pass title to a purchaser, unless he shall have given the notice of sale required by law, because there is no evidence in the record, from which the jury could infer, that notice had not been given. The adduction of a single advertisement, which does not even appear to have been any where published, or affixed to give notice to the public, can furnish no data for deductions, that regular notices were not given, and in the absence of evidence to that effect, every thing is to be presumed in favor of the performance of his duties by the sheriff. It has been objected, that no memorandum in writing, of the sale by the sheriff, was made at the time of the sale. The sheriff has made a return to the fieri facias, which evidences the sale, and has executed a deed to the purchaser, either of which is sufficient evidence of the sale, and a sufficient memorandum, in writing, within the statute of frauds. Barny vs. Patterson, 6 Harr. and Johns. 182. It is clearly not necessary, that the return should be endorsed on the writ, or the deed executed at the time of sale.

We have thus noticed all the points which have been raised before us. There are in the record, several other opinions of the court, from which exceptions have been taken, but they have not been argued before us, and we have considered them as abandoned.

JUDGMENT AFFIRMED.