Wright v. Ryland

Schmucker, J., 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 — 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 $ i ,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 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 — 654 — serted 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 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 — 655 — a time when the law required a judgment to be revived by a scire facias 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 vende.e 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 scire facias 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 vendees pendente 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 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 — 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 m order to proceed against his land or that he is to be bound by any scire facias issued after the alienation, to which he was not a party.” In Polk v. Pendleton, 31 Md. 123, the Court in speaking of the necessity of including the terretenants in the scire facias say: “ They are in, as of the estate of the 'judgment debtor, and before the judgment can be revived and enforced by execution against the land so as to divest their title, it is necessary to warn them by the scire facias, so that they may have an opportunity of making their defense and of claiming contribution from others holding lands of the judgment debtor, bound by the judgment.” See to same effect Walsh v. Boyle, 30 Md. 270. 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, — 657 — 11 G. & J. 265; McKnew v. Duvall, 45 Md. 509. In view of the decisions to which we have referred it would be inconsistent to hold that the owner of the land thus put in jeopardy should have no notice of the proceeding which he is entitled to defend and which if undefended might prove destructive of his title to his lands. (Decided February 8th, 1901.) 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.