Yaple v. Titus

The opinion of the court was delivered, by Strong, J. This was an action of ejectment. The plaintiffs claimed as heirs of Timothy Fuller, of whose person and estate a committee was appointed on the 18th day of June 1841, under a commission of lunacy. In his lifetime he had been seised of the property in dispute, and he had died intestate. The defendants claimed under a sale, made by order of the Court of Common Pleas, for the payment of the debts of the lunatic, including also the expenses of his support and maintenance, and that of his family. The petition for the sale was presented by the committee, and an order to sell was granted on the 12th of November 1842. The first sale made was set aside by the court, but the land was again sold to one under whom the defendants claimed, on the 4th of March 1844, and the sale was confirmed on the 11th of May next following. These proceedings of the Common Pleas, on their face appear to have divested the title of Timothy Fuller. But to avoid their apparent effect, the plaintiffs offered to show at the trial that Fuller, the lunatic, died on the 6th day of April 1842, before the order of sale was granted. Whether it was competent for them to show that fact is the sole question before us. It is a familiar principle that the judgment or decree of a court of competent jurisdiction cannot be reversed or inquired into in a collateral proceeding, except for fraud. Nor, standing on the public records, shall it be deemed a nullity, provided the magistrate had jurisdiction of the matter adjudicated. This principle is said to have no exception: Hazlett v. Ford, 10 Watts 101. No fraud is alleged in this case. But it. is said that the Court of Common Pleas had no jurisdiction over the estate of Timothy Fuller after his death, and that consequently the order to sell and the sale made under it were void. It is not enough for the plaintiffs to show that they were erroneous, for errors of law, or even of fact, can be corrected only by writ of error or by appeal. It may be that the order of sale must have been set aside, had an appeal been taken from the court which made it. But the question now is, in this collateral action, whether the order was wholly void for defect of jurisdiction to make it. The fifth article of the constitution of the state declares that the several Courts of Common Pleas shall have the power of a Court of Chancery, so far as relates to the care of the persons and estates of those who are non compos mentis, and authorizes the legislature to vest in the said courts such other powers to grant relief in equity as shall be found necessary. The power of a chancellor over the estate of a lunatic is that of custody, of "management, and of application to the lunatic’s support and that of his family, to the education of his minor children, and to the payment of his debts. Under our Act of Assembly this power is exercised through a committee, appointed by the court, and the [203] committee may be ordered to sell the real estate belonging to the lunatic, if the personal property is not sufficient for the purposes already mentioned. Yet the charge of the property is in the court, though administered by a committee. After the return of an inquisition finding lunacy, the jurisdiction of the court over the property of the lunatic is complete, either for custody, for management, or for sale. And, though his death necessarily terminates all jurisdiction over his person, there are not wanting cases which assert that jurisdiction over the property continues, for some purposes, even after death: Ex parte McDougall, 12 Vesey 384. See also Shelford on Lunacy, 22, 23, 24. To what extent this may be, the case now in hand does not demand that we should inquire. It is enough for our present duty that the Court of Common Pleas had complete jurisdiction over the property of Timothy Fuller, and might, without even any irregularity, have ordered a sale up to April 6th 1842. Did, then, his death on that day so completely oust the jurisdiction of the court over the property as to make a subsequent order of sale not merely erroneous but an absolute nullity ? An order of sale was a proceeding in rem, and not a decree against the lunatic himself. Notice of it to him would have been unnecessary, had he been living. To justify it, the court needed no jurisdiction of his person. The Act of Assembly, under which the sale was ordered, contemplated no notice to the lunatic. Now it would seem to be well established that in civil proceedings against a person, his death does not so completely take away the jurisdiction of a court which has once attached, as to render void a judgment subsequently given against him. The judgment is reversible, in error, if the fact and time of death appear on the record, or in error coram nobis if the fact must be shown aliunde. But it is not void. Thus, in Rolle’s Abr., vol. 1, 742, 6, 12, it is said, “ if in a cui in vita the tenant dies, and afterwards judgment is against him, which is erroneous, and execution is sued against the heir, he shall not avoid the judgment in assize without error.” “ So in a scire facias by an executor, upon a judgment in ejectment by his testator against B., execution shall not be avoided nor judgment stayed by saying that the tenant died pendente lite, for he ought to avoid it by error1 Rolle 742, 1,18; 3 Comyn’s Digest, Error, D. Without, however, citing the authorities at length, we refer to the opinion of Judge Kennedy in Warder v. Tainter, 4 Watts 279 et seq., where a large number are collected. Other American cases not collected by him might be added. Thus in Coleman v. McAnulty, 16 Missouri (Bennett’s Rep.) 177, it was ruled that a judgment rendered in favour of a plaintiff who had died before its rendition was not void. So in Collins v. Mitchell, 5 Florida 364, it was held that the death of the party defendant before judgment does not render the judgment void, [204] but only voidable upon a writ of error coram nobis. From tho report of the case it would appear that the defendant died before the institution of the suit, which was commenced by attachment. See also Day v. Hamburg, 1 Browne 75. These authorities show unmistakably that even a judgment in personam is not void merely because the defendant died before it was rendered. At most it is only voidable, reversible in error, but not impeachable collaterally. And some of the cases deny that it can be reversed in error, when the averment of the error involves a contradiction of the record. There is even less reason for holding a decree in rem, such as was this order of sale, to be void, if made after the death of the owner of the property. The reason why even a judgment in personam is voidable in error, is because the party against whom it was rendered has been deprived of an opportunity of showing cause against the plaintiffs’ claim. But in a proceeding in rem he may, or may not, intervene. As already said, in an application for an order to sell the real estate of a lunatic, the law does not contemplate his being heard. He has lost nothing, therefore, by death. His property has been intrusted to the court, which is to exercise its discretion over both its custody and its sale. If then a personal judgment obtained against him after his death, jurisdiction of the person having once been acquired, would be only voidable, a decree for the sale of his property, the court having had jurisdiction over it, can be no more than voidable, though made when he had ceased to be in life. Tho cases relied upon by the plaintiff are not in conflict with these views. Letters of administration on the estate of a living person, and the probate of the will of such a person, are of course void, for there never was any jurisdiction of the person or property. The bond and warrant of a married woman to confess judgment are void; and of course can authorize no judgment at all. The observation of Chief Justice Gibson, in his dissenting opinion in Campbell v. Kent, 3 Penna. Rep. 79, when remarking upon Randall’s Case, 2 Mod. 308, and Warter v. Perry & Spring, Cro. Eliz. 199, was but a suggestion not called for by the case. He said that “ perhaps the true ground of both these cases was that the judgment was not only injurious, but void, as having been rendered against a party not in existence, and therefore requiring no reversal to render it a nullity.” That was, however, not the ground on which the cases were rested. Warter v. Perry & Spring was a scire facias against bail of Brooke, who pleaded that Brooke was dead the day of the judgment given. “The court,” says the reporter, “first held-it no plea, for it goeth in avoiding the judgment, and proveth it to be erroneous, which cannot be avoided but by error. But they might plead the death of Brooke before scire facias and after judgment, for [205] then they could not bring in the body. But afterwards the plea was received because they cannot have a writ of error to reverse the judgment.” If this be a correct report of the case, it shows that the plea was received for an entirely different reason from that suggested by Judge Gibson, soil, that the judgment was void. The reason given was, that the pleaders w'ere not in privity with the defendant, and could not sue out a writ of error. And it seems that the plea was receivable at all events, not necessarily impeaching the judgment; for whether the defendant died before or after judgment, the bail could not bring in his body. The same case is reported in Leonard, part 2, case 125, and there it appears that the defendants were only permitted to plead that Brooke was dead after judgment, that not amounting to a surmise against the judgment. This report makes the case accord with-other rulings that a judgment may not be attacked by showing collaterally that the defendant was dead before it was rendered. In Randall’s Case, 2 Mod. 308, which was debt upon a bond against one as administrator, he pleaded a judgment recovered against his intestate, and that he had not assets ultra. The plaintiff replied that the intestate died before judgment, and that after his death judgment wras obtained and kept alive per fraudem. The defendant rejoined traversing the fraud, but did not answer the death of his intestate, and upon a demurrer it was argued for the plaintiff that the judgment was ill, and that he, being a stranger to it, could neither bring a writ of error or deceit, and had no other way to avoid it but by a plea; and that it is put as a rule that when judgment may be reversed by writ of error, the party shall not be permitted to do it by plea, but a stranger to it must avoid it by plea, because he is no party to the judgment; as if a scire facias be brought against the bail, it is a good plea for them to say that the principal was dead before judgment given, by way of excusing themselves to bring in the body; but it is not good to avoid the judgment, because it is against the record which must be avoided by writ of error. The reporter in Modern adds: “ The court were of opinion that the plaintiff might avoid the judgment without a writ of error, especially in this ease, where it is not only erroneous but void.” It is not easy to understand for what reason the court were of opinion that the judgment was void, whether for fraud or for the death of the defendant’s intestate. The principal thing argued and decided was' that a stranger might attack a judgment by plea, when one in privity would be put to a writ of error. And the case is cited by Baron Comyn, as deciding only that if a party cannot have error, he may avoid a judgment by plea: 3 Com. Dig., Error D, p. 569. As a general proposition, even.this may be doubted. But if it be taken as good law, it does not help the plaintiffs in the present case, for they claim as heirs of Timothy Fuller, and in privity with him. They might, therefore,- have [206] assailed the decree of the Court of Common Pleas, directly by appeal. The language of the court in Caldwell v. Waters, 6 Harris 79, also cited by the plaintiffs, is no more than a quotation from the dissenting opinion of Judge Gibson, already noticed. The industry of the counsel has not found any case which rules that a judgment against a defendant, who died before it was given, is, on that account, ipso facto void, much less any that treats as a nullity a judgment in rem, because of the previous death of the owner. As ive have seen, there are numerous decisions to the contrary. Had, therefore, the plaintiffs been permitted to prove that Timothy Fuller died before the order of sale, it would have availed them nothing. It would not have annulled the order, though it might have shown it to have been erroneous. The evidence offered was, therefore, properly excluded. We feel'the more satisfaction in coming to such a conclusion in this case, for it results in obvious justice. The property was sold eighteen years ago. It was sold for the payment of the debts of the lunatic, a part of which were debts due these very plaintiffs. The heirs of the lunatic knew of the order to sell, and of the sale, for some of them moved the court to set aside the first sale made under the order, not on account of his prior death, but because it was believed the property would bring more if offered for sale again. It would be a great hardship, if, after all this, and after the lapse of eighteen years, the heirs could now recover the land from purchasers who bought on the faith of a judicial decree, and who may have greatly improved the land and enhanced its value. The judgment is affirmed.