Dengler v. Kiehner

The opinion of the court was delivered by Gibson, C. J. This case is simple in its elements. A judgment creditor has a right to call on a terre tenant of land, purchased by him from the debtor, while it was bound by the judgment, to shew why the debt ought not to be levied of it; and the terre tenant [41] having sl^pt his time, being warned, is concluded as to every thing he might have made matter of defence to the scire facias. But the creditor must, at least, have laid a prima facie case: he must show that he, whom he calls a terre tenant, actually stood in the relation of one; else there will not have been such privity between them, as would estop the latter, by the judgment. But who is a terre tenant ? Not every one who happens to be in possession of the land. There can be no terre tenant, who is not a purchaser of the estate, mediately or immediately, from the debtor, while it was bound by the judgment; and when he has taken a title, thus bound, he must show how the lien of it has been discharged, whether by payment, release, or efflux of time. These are matters of defence which may be precluded. True, we have a statute which directs notice to be given to occupants; but only to let the lessee of a terre tenant into a defence, which his landlord may have neglected to make, for his protection. ' The facts of this case are, that the estate had been bound by the judgment, but that the lien of it had expired when the ancestor of the plaintiffs purchased it. It had ceased to be a judgment of greater effect against the land than it was against the debtor’s chattels; and the purchaser’s title was paramount to it. He was not a terre tenant, or the lessee of a terre tenant; and as he had not a day in court, the judgment being inter alios, was not an estoppel. The case is clearly within the principle of Mitchell vs. Hamilton, and is ruled by it. Judgment reversed and venire de novo awarded.