Morton v. Weaver

Mr. Justice Sterrett delivered the opinion of the court, November 7th 1881. The plaintiff below claimed under Mrs. Helen Johnston, who formerly owned the lots in controversy and died seised thereof in Í859, and, for the purpose of tracing title to himself, he gave in evidence the record of a judgment, rendered June 10th 1863, in his favor against James Cunningham, administrator of Mrs. Johnston, and also the record of a scire facias thereon to September term 1863, with notice to the 1ms-band and all the heirs at law of the decedent, except one, as to whose interest he was not permitted to recover. In the latter proceeding judgment was entered November 8th 1865, on an award of arbitrators for $1,417.34, and by virtue of an execution based thereon the lots in controversy were sold by the sheriff and conveyed to Weaver, the plaintiff below. The admission of the records and sheriff’s deed aforesaid forms each a separate subject of complaint in the first, second and third assignments .respectively. The record of the original judgment exhibits a suit regularly brought against the personal representative of Mrs. Johnston for necessaries sold to her when a femme covert for the use of herself and family “at her special instance and request, and upon her own responsibility, promise and engagement to pay.” The probated copy of book accounts, with the exception of a few items, is composed of articles that may fairly be classed as [51] necessaries, and tlie claim, as shown by the record, is quite sufficient in form to charge the separate estate of a married woman. By order of court the surviving husband was added as a defendant, but the judgment, in default of a plea, was rendered against the administrator alone. There is nothing whatever upon the face of the record to impeach either the regularity or validity of the judgment, and there was, therefore, no error in admitting it in evidence as the foundation of the subsequent proceedings. In the scire facias to bring in the heirs, we fail to discover any irregularity in the proceedings of which the plaintiffs in error have any reason to complain. One of the heirs, it is true, was omitted, hut that has inured to their benefit by limiting the recovery of the plaintiff below to the undivided three-fourths of the land in controversy. Those who were made parties to the scire facias appeared by counsel, and, in a full affidavit made by their agent, Mr. Fullerton, took defence; but, when the arbitrators awarded against them, they did not appeal, and the judgment became final and conclusive. They had a right to make any defence that could or ought to have been made by the administrator in the original action. Having either neglected to do so, or having failed in the attempt, it is now too late to question the validity of the judgment on the scire facias, and the record thereof was properly admitted. The regularity of the execution process is not questioned, and the sheriff’s deed to the plaintiff below, having been duly acknowledged and delivered, there cannot beany valid objection to it as evidence of his title. The fourth and fifth assignments are not sustained. Aside from the question of Mrs. Morton’s competency as a witness to prove the several matters therein mentioned, we are of opinion that the testimony was irrelevant in this case. Doubtless it would have been otherwise in the original suit, or in the scire facias and, in the affidavit of defence filed in the latter case, we find it alleged, inter alia, that the “ heirs have a just and legal set-off against the said plaintiff’s claim of about seven hundred and twenty dollars, with interest thereon for eight years, for rents of the aforesaid lots commencing in September or October, a. n. 1855.” That was the proper time and place to prove the agency of Weaver, and the alleged receipt by him of “ a large amount of rents.” W e see no error in the answers of the learned judge to defendants’ points, covered by the sixth, seventh and eighth assignments. There was no evidence from which the jury would have been justified in finding collusion or fraud, either in the procurement of the judgments or in the sheriff’s sale, and it would have been error in the court to have submitted to them any such question. If the administrator failed to make such [52] defence, as he should have done, in the original suit, the heirs when brought in on the scire facias had their day in court. It cannot be .presumed that the attorney who appeared for them and entered on the record of the scire facias their defence thereto, conspired with the plaintiff for the purpose of procuring a fraudulent judgment. There is no evidence of such collusion. If we were to permit judgments and other judicial proceedings to be brushed aside on naked allegations of fraud and other flimsy pretexts, titles would indeed rest upon a very insecure foundation. It is not enough to charge fraud and prove in support thereof slight circumstances of suspicion only. To be of any avail it must be clearly proved. It follows from what has been said that there was no error in charging as complained of in the remaining assignments of error. The judgments and sheriffs sale based thereon being regular and valid, the plaintiff below was clearly entitled to recover, except as to the interest of the son who was not made a party to the scire facias. Judgment affirmed.