Burk's Adm'r v. Jones

CHILTON, J. No objection is urged to the form of the plea puis darrein continuance, and we are called upon to decide whether it interposes a good bar to the further prosecution of the scire facias. In the case of Fitzpatrick, et al. v. B. & W. Edgar, 5 Ala. Rep. 499, it is said, “ a lien is hot an absolute, but a qualified right, given by law, or created by the act of the parties, by which real or personal property is charged with the payment of a debt or duty, and that a lien on land, in virtue of a judgment, being merely a right to charge the land with the payment of the judgment, may be waived or lost by the laches of the party entitled to enforce it — so a lien created by law, may be taken away by law,” Spc. In the case from which we make this quotation, the estate was declared insolvent, before the judgment creditor sued out his scire facias. The court seem to lay some stress upon this fact. “The plaintiff,” it is added, “might have enforced his lien by selling the lands of the decedent, if he had thought proper to do so, but he has lain by until the administrator has reported the estate insolvent, which by operation of law, divests the estate out of the heirs at law, and vests the same in the administrator, for equal distribution.” By our statute, 170 no. preference is given to. judgment creditors over others in the satisfaction of their demands out of insolvent estates. Each creditor, except for last sickness and funeral expenses, is to share pro rata. Clay’s Dig. 194, § 12; 192, <§> 2. If á lien has attached, such as may be enforced by execution, after the death of the intestate, such right to satisfaction is not divested by the declaration of insolvency. But when the judgment creditor cannot have execution of his judgment without the aid of the court, by scire facias against the heirs and personal representatives, if the estate, in the mean time, has been duly declared insolvent, the court will refuse its aid, and remit the party to the orphans’ court to share pro rata with the other creditors. This view seems to harmonise with the previous decisions of this court, and accords with the spirit of our legislative enactments on the subject. It is true, as contended for by the defendant’s counsel, that the judgment creates a lien on the real estate of the debtor, and which is co-extensive with the State. Campbell, use, &c. v. Spence, et al. 4 Ala. Rep. 543. But allowing the lien to exist in the lifetime of the debtor, the question is, how is this lien affected by his death ? Upon the death of the judgment debtor intestate, the land immediately descends to his heirs. Their title cannot be divested without a proceeding instituted for that purpose, and to which they must be made parties, so that they may show cause against the divestiture. See Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679. In Mansony and Hurtell v. U. S. Bank, et al. 4 Ala. Rep. 735, this court, in a very elaborate investigation of the authorities upon the point now under consideration, indicate in strong terms, that an execution issuing after the death of the defendant, is, as it reepects his lands, a nullity. See the authorities collected in that case. This may now be regarded as the settled law. See Abercrombie v. Hall, 6 Ala. 657. We have no statute saying a judgment shall be a lien on land, but it is held, the lien attaches by virtue of the statute authorizing their extension under the writ of elegit. See Morris v. Ellis, 3 Ala. Rep. 560; Campbell, use, &c. v. Spence, supra. If then the lien is dependent upon the right which the judgment creditor has, to have the land exteded, can it survive that right ? It is clear that it cannot, and as we 171 have seen that the right to an execution, and of consequence-u.n elegit, is destroyed by the death of the party defendant in the judgment, it follows that the lien of the judgment is also-gone. See Bank of the U. S. v. Winston’s ex’rs, 2 Brockenb. Rep. 252; 2 Call’s Rep. 125; 4 Hen. & Munf. Rep. 57; 1 Brockb. 170. Upon the same principle, the giving an injunction bond destroys the lien, it deprives the party for the time being, of his right to an execution, or elegit, for its satisfaction. The cases referred to by the defendant’s counsel of Collingsworth v. Horn, 4 S. & Por. 237; Fryer v. Dennis, 3 Ala. Rep. 254; and Boyd, adm’r, v. Dennis, 6 Ala. Rep. 55, do ¿rot militate against this view. These cases merely decide, that where execution has been sued out in the lifetime of the debtor, and regularly kept up without the chasm of an intervening term, a lien upon the personal property created by the execution being placed in the hands of the officer, is preserved after the death of the defendant. The error consists in not taking the distinction between personal estate bound by the executions regularly kept up, and real estate, bound by the judgment by virtue of the right of satisfaction by elegit, which right, as against the debtor, is destroyed by his death — so, while the execution is permitted to continue as to the personalty, the judgment does not surive as to the realty. Woodcock v. Bennet, 1 Cow. 740. It follows, that the heirs take the title to the land discharged of the lien of the judgment, but charged with the payment of all the ancestor’s debts, and as in this case, it becomes assets in the hands of the administrator for the payment of the debts of the estate, upon his report of insolvency, which report was made before the judgment subjecting the land to the satisfaction of the plaintiff’s demand, such judgment Was erroneous. It is unnecessary to examine the other points raised in the argument, as what we have said is decisive of the case. Let the judgment of the county court be reversed, and the cause will be remanded, if denied, that the defendant in error may take issue upon the plea of insolvency.