Frink v. Morrison

Leonard, J. —The act of 1850 (ch. 295) does not, in my opinion, supersede the necessity of taking proceedings on the judgment, in the nature of scire facias, after the death of the debtor, wherein the heirs and terre-tenants shall be notified and have a hearing, if desired, before any lands of the deceased, upon which it is claimed that the judgment is a lien, shall be sold on execution. The writ of scire facias is abolished by the Code, but it is qtiite plain that a more simple proceeding, as the codifiers supposed, was substituted. The end or object to be attained for the purposes of justice, by scire facias, has not ceased to be required in some form. The proceeding before the surrogate, by the act of 1850, is not a substitute for scire facias. There are no pro fisións for notifying heirs or terre-tenants, or making them parties to the proceedings before the surrogate, nor does the proper jurisdiction exist in the surrogate to administer a complete judgment co-extensive with that obtained by scire facias. Terre-tenants may require that all the lands subject to the lien of the judgment be brought in and subjected to contribution, and perhaps to settle the order in which the lands of the deceased, subject to the judgment, shall be sold. (Morton a. Croghan, 20 Johns., 106.) A mortgagee is not, however, entitled to be made' a party to such a proceeding. I think the applicant here cannot, therefore, move to set aside an execution irregularly issued, for the want of proceedings in the nature of scire facias. In the present case, a mortgagee moves to set aside such an [84] execution for the reasons referred to, and also moves to set aside the judgment whereon the execution has been issued. The mortgagee alleges that the judgment was recovered on an offer of the defendant to allow judgment to be taken under section 385 of the Code; that it was fraudulently created as a cover for the property of the defendant; that a large part" of the note, on which the judgment was obtained, was paid before the offer was made or the judgment docketed; that subsequent payments were made by defendant on general account, which ought to be applied to the oldest demands, and that this judgment was thus wholly extinguished. Certain receipts, which are produced by the representatives of the defendant, appear to warrant the claim for the application of payments. The receipts are, however, subject to explanation, and the plaintiff states that these payments were, by agreement with defendant, applied to other subsequent transactions, and that the whole amount of the judgment, and even a still larger sum, is actually due to him from- the deceased defendant. I do not think this question ought to be determined on affidavits or by motion; involving, a's it does, conflicting evidence, which will require appellate tribunals to'look into and examine the facts proved, and ascertain the weight of evidence applicable in the various aspects of the case and questions involved, to sustain the order which the court might consider it proper to make on this motion. Without expressing any opinion in respect to the merits on this branch of the motion, I shall direct an order to be entered denying the motion, with $10 costs of opposing, without prejudice to the right of the applicant to institute an action, and obtain an adjudication of his rights as against the judgment in question.