Executors of Morton v. Terre-tenants of Croghan

Spencer, Ch. J. delivered the opinion of the Court. Motions have been made for relief, in several cases, on the applicati. n of the terre-tenants, on different grounds, and on different notices, adapted to the different classes of cases. There is, however, one ground of relief common to all of them, and if that is tenable, it supersedes the necessity of discriminating the cases. The application for relief comes from persons against whom judgment has been enter — 119 — ed by default, at the January term, 1821, either on the return of two nihils, or upon returns of scire feci. In the former cases, there are affidavits of merits, and of surprise, from want of actual notice; and, in the latter, generally, of an intention to defend, and accounting for the omission to do so. The principle relied upon is, that with respect to those who have appeared and defended, being upwards of four hundred terre-tenants of the same lands on which the judgment is a lien, a nolle prosequi was entered on the 9th of April, 1821 ; and it was also entered as to the heirs of Croghan. It has been insisted, that the entry of the nolle prosequi, as to a part of the terre-tenants, is a discontinuance of the action, as to all the others ; and that it is in. the nature of a retraxit, enuring to the benefit of those who did not defend, from whatever cause. The law applicable to this question, is laid down with entire precision and accuracy, by Serjeant Williams, in his 4th note to 2 Saund. 51 a. He says, that although the judgment survives, as to the personalty, yet it does not as to the real estate; for, at common law, the plaintiff might take the goods of the survivor in execution by a fi. fa.; but the plaintiff, under the statute of Westminster 2, must sue out an elegit against the lands of the survivor, and the heir and terre-tenants of the deceased; and that where the lands of several are charged with a debt, it shall not be wholly on the survivor ; as, if a recognisance be acknowledged by several, the lands of them all are thereby become chargeable and execution must be equally made; and if one dies, the creditor must bring a scire facias against his heir and terretenants, and also, against the survivors; but it is otherwise where the lands are not bound; as, if two enter into a bond, and one dies before judgment, the survivor shall be charged alone. He states the case where judgment in debt was had against two, and one died; the plaintiff brought scire facias against the survivor only; the defendant pleaded, that the other had left lands and an heir, upon whom they had descended, and demanded judgment, if he should be compelled to answer, without the heir being warned; the plaintiff demurred, and judgment was given, that the defendant — 120 — should answer, for that the judgment was against the person; and although, now, by the statute of Westminster 2, which gives the scire facias and elegit, he may charge the lands and make the judgment real, yet, it is at his election, to proceed in the personalty, if he will; but if he will take out execution upon the real lien, the charge must be equally against both, and the scire facias against both. Serjeant Williams refers to several cases in support of this doctrine, and they fully support him, particularly Sir William Harbert's case, 3 Co. 11. Many cases are there noticed, that where the charge is upon the land, which was in the hands of several persons when the charge was created, as in the ease of a recognisance, the conusee cannot extend the land of one conusor only, but all must be equally charged. So, if there be only one conusor, if divers persons purchase the lands subject to the recognisance, one only of the conusors shall not be charged, for he stands in equal degree with the others. The case of Sir John Langford is there stated, which was thus: Four men were bound in a recognisance, and afterwards one died, and his heir being within age, a scire facias was brought against the three survivors to have execution, who pleaded, that the heir of the conusor, who was dead, was within age, and as during his minority he could not be charged, and the survivors ought not to be charged, they prayed judgment. The fact not being denied, it was awarded, that the parol should demur, and the judgment was affirmed in error. So, if two men aliene lands with warranty, the lands of one only shall not be rendered in value $ neither, if one dies, shall the lands of the Survivor only be rendered in value, but the charge shall be equal on them both ; for a joint lien binding the lands shall not survive, or lie only on the survivor. Coke cautions the reader to note, that where it is said, before and often, in our books, that if one purchaser only be extended for the whole debt, he shall have contribution, it is not thereby intended that the others shall give or allow him any thing, by way of contribution; but it ought to be intended that the party who is alone extended for the whole, may, by audita querela, or scire facias, as the case requires, defeat the execution, and thereby he shall be restored to all the mesne profits» and — 121 — compel the conusee to sue execution of the whole land 5 so in this manner every one shall he contributory, that is, the land of every terre-tenant shall be equally extended. The case of Edsar v. Smart, (Sir T. Raym. 26.) is, also, to the same point. There, a judgment was against two; one died, and a scire facias issued against the survivor; there was a plea, that he who died had an heir, who was in full life» On demurrer, the plaintiff had judgment. Wyndham, J. said, that the reason why this execution should be against the survivor, was, because the plaintiff hiay take a fi. fa. if he will, and perhaps he will not charge the land. Twisden, J. was of the same opinion; and he said, if upon this scire facias, the plaintiff takes an elegit, the defendant may have an audita querela, or he may suggest this matter, on the return of the elegit, and have a supersedeas. In Pennoir v. Brace, (1 Salk. 320.) Holt, Ch. J. held, that a capias, or fi. fa., being in the personalty, might survive, and might ho sued against the survivors, without a scire facias ; otherwise of an elegit, for there the heir is to he contributory. I apprehend the law to be well settled, since the statute of Westminster 3., that where the judgment creditor proceeds to enforce his lien on the realty, and for that purpose, it becomes necessary to revive the judgment, he is bound to make every person having a fee in the land, a party to the proceeding ; and, in this case, the judgment against Croghan, being a lien on the real estate, in the hands of the terre-tenants, the plaintiffs are required by law to make all the terre-tenants parties to the scire facias, to the end that they may be made jointly contributory to the satisfaction and payment of the judgment. This has been shown to he the established principle, .under the statute of Westminster 2., which gave the creditor his remedy by the execution of elegit, under which he held the moiety of the debtor’s lands, until he was satisfied his debt and damages. At common law, the fi. fa. went merely against the goods and chattels of the debtor; such an execution, therefore, related merely to the personalty; hut, under our statute, which subjects the lands and tenements of the debtor to be sold, absolutely, for the satisfaction of the debt, it is, ordinarily, an execution partly in the personalty, and partly in the realty j — 122 — and, in the present instance, it is entirely in the realty, tbs' the goods and chattels of the terre-tenants cannot be affected by the judgment, or any execution under it. The same principle which required the elegit to issue against all who ought to bear the burden, applies with much more force to the fi. fa. against the lands; for, in the former case, they were not to be sold, but a moiety only held, until the debt was paid; whereas, in the latter case, they are liable to be taken away for ever from the debtor. Besides, the principle is most just and equitable ; if the creditor, having the lien, can select a few, as in this case, to bear the whole burden, they may, probably, be crushed by its weight; but, if he must render them all contributory, the individual burden may be borne without ruin. It was supposed, on the argument, that our statute, (1 N. R. L. 503.) giving remedy by way of contribution, where several persons are bound by a judgment, and one pays more than his share, had a bearing on this question. I apprehend that it has none. It merely provides for the case of an undue proportion of a judgment having been paid by, or levied upon the lands of one of the persons liable to a judgment. It does not profess to settle any principle, whereby the one may be subjected to pay more than his proportion, but merely gives a remedy where the case occurs. It seems to follow, from the principles to which I have referred, that the plaintiffs cannot have proceeded correctly, in entering a nolle prosequi against those who have appeared and pleaded, tailing judgment against such as have not pleaded t, and that they cannot be allowed to enforce the judgment thus taken. The next question, under these circumstances, is, what relief is to be afforded to those against whom judgments have thus been taken, and what is the effect of the nolle prosequi ? The law has undergone a change in relation to the right of a plaintiff to enter a nolle prosequi, and as to the effect of it. It may be entered as to one of several defendants, in actions of tort, without affecting the plaintiff’s right to proceed against the others ; for, in such cases, the plaintiff has his election to sue them severally or jointly. So, where one of the defendants pleads matter which goes to — 123 — Ms personal discharge, in an action necessarily joint, as in aassumpsit, or debt, such as bankruptcy, that he was never •executor, and, under the decisions of this Court, infancy, and such pleas as do not go to the action of the writ; in these cases, a nolle prosequi may be entered as to one defendant ; but where all the defendants are necessarily parties, and the plaintiff was obliged to make them parties, as in the proceedings against the terre-tenants, a discontinuance as to some, is a discontinuance as to all. In the case of Noke and Chiswell v. Ingham, (1 Wils. 89.) the action was upon promises. Noke pleaded a plea that was found against him, and judgment was rendered thereon. Chiswell pleaded a discharge as a bankrupt, and, as to him, a nolle prosequi was entered; and, on error, the Court affirmed the judgment, on the ground that it was a personal*discharge, and not a plea to the action. Denison, J. said, that if one defendant was to plead a plea that was to go to the action of the writ, he thought it might then have, a different consideration ; and, I think, Seijeant Williams, in his second note to 1 Saund. 207. evidently intimates, that in the case put by Denison, J=, it would be fatal. Mr. Tidd (Tidd’s Pr. 632.) comes to the same conclusion. In Chandler v. Parkes and Danks, (3 Esp. N. P. Rep. 76.) where, in an action for work and labour, one defendant pleaded the general issue, and the other infancy, to which last plea a nolle prosequi was entered, Lord Kenyon nonsuited the plaintiff, on the ground that the action was gone. This seems to be the inevitable consequence, in this case; for here, the plaintiff, being under the necessity to make all the terre-tenants parties, and to proceed against them all, until he was satisfied, has by his own act disabled himself from doing so. He cannot proceed against part of the terre-tenants, and discontinue as to part 5 and, having discontinued, he can proceed no further. The defendants are, then, entitled to their motion to set aside the defaults and judgments against such of the terretenants as have not pleaded, on the ground that the plaintiffs have entered a nolle prosequi as to such as have appeared and pleaded 5 and they are entitled, also, to be paid the costs of this motion. The only remaining question is, whether the plaintiffs are — 124 — liable to pay the costs, as in a case of discontinuance, as to sucjj 0f the defendants with respect to whom a nolle prosequi has been entered; and whether judgment is to be given for such costs, or the defendants are to be put to a prosecution of the bond given under the direction of this Court. The 11th section of the act concerning costs, (1 N. R. L. 345.) gives the defendant costs, if the plaintiff suffers the suit to be discontinued; and it is a transcript of 8 Eliz. ch. 2. s. 2. In Cooper v. Tiffin, (3 Term Rep. 511.) the Court held, that a nolle prosequi could not be distinguished, in reason, from a discontinuance; and that the practice had been, to give costs in such cases. Tidd’s Pr. 630. is to the same effect. The motion is in the alternative, either for a judgment for costs, or for a rule that George W. Prevost, the assignee of the judgment, pay the costs ; and that the bond of Andrew Edmonston, filed as security for the payment of costs, to James Cooper, George Pomeroy, and others, be given up to the defendants, to be prosecuted. I incline to the opinion that the latter course would be most appropriate. Several other points were discussed on the argument, but the necessity of considering them is obviated by the opinion already expressed. Motion granted accordingly.