Coulter v. Selby

The opinion of the court was delivered, by Thompson, J. The error assigned is to the refusal of the court to allow the widow and heirs to amend and plead to this sci. fa. quare ex. wow, that they took nothing by descent from their intestate. The plea, beside being a novelty, was of no use [360] to them. The object of the sei. fa. was not an action to establish a debt, but simply to authorize execution on an existing judgment, if cause to the contrary were not shown by the heirs or terre-tenants. Satisfaction was not to bo had of them personally, because they might not be able to show cause why execution should not issue. It'is true, judgment quod recuperet is in form the judgment in such case; but the sei. fa. itself shows where the debt is, and the object of the writ. It does not, like a summons, demand a debt, but simply calls on them to show any legal cause why the sum found due against their ancestor shall not be paid out of his estate. Previously to the statute of Westm. 2, 13 Ed. 1, if execution were not issued within a year and a day after judgment, the plaintiff was obliged to resort to an action of debt on his judgment. This was owing to a presumption of payment or satisfaction within that time. It was a troublesome remedy, and to amend it the statute cited was passed (2 Sand. R. part 2, p. 5, n. 1) authorizing a soi. fa. in personal actions. When the defendant in the action happened to die before execution, and it became necessary to revive the judgment, the heir was required to be served; for he was held to be chargeable as terre-tenant, and not as heir, and an action of debt did not lie against him on a judgment or recognisance, as it did on the bond of his ancestor, but a soi. fa. only to have execution of the ancestor’s lands in his hands: 3 Rep. 12; Sir W. Harbst’s Case, Dyer 271, a. pl. 25; Sir W. Jones 87, 88; Boyer v. Hivott (S. C.) Butler 317, Palm. 419, Poph. 152; 2 Sand. R. part 1, n. 27. The Act of 1798 was but an embodiment of the practice under the English statute. The widow and heirs are regarded in the light of terre-tenants, for the law of descent casts the title upon them, and if they cannot show any reason, such as payment, satisfaction, release, or something sufficient to prevent execution, they will be concluded by the judgment, and that will, if in form, be that the land of the ancestor, bound by the judgment, be taken in execution for the debt recovered against him. It created no personal liability as against the heirs, any more than a recovery does against any other terre-tenant; and no one pretends that in such case it extends beyond the lands of the debtor in his possession or claim. So, like a terre-tenant, the heirs are concluded by the judgment, if, after being warned, they fail to set up any defence they might have against the award of execution or recovery on the soi. fa. They cannot, I apprehend, after-wards contest the right in ejectment: Drum v. Kelly, 10 Casey 417. This very question was discussed and settled, however, in Coyle et al. v. Reynolds et at, 7 S. & R. 328. There it was held that a judgment against the heir and a terre-tenant on a sci. fa., on a judgment against the ancestor, without specifying what land [361] it was to affect, binds only the lands of the ancestor in their hands, and cannot be enforced against them personally. There the plea was payment; the other plea of the terre-tenant, that lie was a purchaser for a valuable consideration, was a nullity; for that would not protect him if the lands were bound by the judgment when he purchased. This case, as well as the principle referred to, sufficiently determines the question that the plea offered, the rejection of which is the alleged error in the case, was of no practical value whatever, and its rejection did the plaintiffs in error no harm, and can do none. The practice is well settled to this effect, and for the sake of mere symmetry in proceedings, we will not hold that any greater precision in cases of this kind is now necessary than formerly. It might lead to injurious doubts about the effect of former proceedings in like cases. In the outset, I spoke of the plea as something of a novelty; perhaps it might have turned out, had it been received and traversed by the other party, a costly one. On the death of the ancestor, his estate not devised certainly descended to his heirs. That it may have been encumbered, and for that reason of no value to them, makes no difference. To them the title goes. They are the legal successors to it, and so it stands until divested; so that the issue would have been against the defendants, if taken on their plea. Thus, instead of a judgment, that execution should go to charge the estate as in ordinary eases, the judgment would probably in strictness have boon against them personally. But it is not necessary to decide definitely what effect the plea might have had if received. Suffice it, the plaintiff in error was not injured by the refusal, and the Judgment is affirmed.