Woodcock v. Bennett , 1 Lock. Rev. Cas. 66 ( 1799 )

This decree was reversed by the Court of Errors, Wood-worth, J., delivering the opinion of the court, in which the following questions are disposed of, as the ground of reversal :—

1. Where one agrees to convey land by quit-claim, the agreement has reference to the title as it is at the time of agreement, not to one subsequently acquired. And if the covenantor had none at the time, there is nothing upon which a decree for a specific performance can operate; and it would be inequitable to decree the conveyance of a title subsequently acquired.

2. Where there is a judgment against two joint debtors, and one1 dies before execution, the judgment maybe enforced against the personal estate of the survivor, but not against his realty. Against the real estate, execution can not issue nor be enforced, without a scire facias against the survivor and the heirs, terra tenants, &c., of the deceased, to show why the money should not be levied of their respective lands, without mentioning goods. If it issue without a scire facias it is void, and may be set aside, and an innocent purchaser under it will not be protected.

It is thus void, and a sale under it, is a nullity, even as to the lands of the survivor.

Decree reversed accordingly.