Ex parte Dixon

Ridgely, Chancellor. It has been contended by Mr. Brinckle, that by the death of John Phillips, this judgment survived and became the debt of Thomas Phillips alone; that it ceased to be a lien on the real estate of John Phillips, .and that Dixon’s executors had no remedy at law against the representatives of John Phillips, nor against sheriff Haughey : and further, that as Dixon’s executors never recovered and could not recover the debt from the sheriff or his sureties, he has a better title in equity to receive it out of the proceeds of the real estate of Thomas Phillips, against whom the judgment survived, than any subsequent judgment creditor. I doubt extremely the position, that the lands of John Phillips became exonerated of this judgment by his death,—that the whole debt fell upon Thomas Phillips, and that he and his real estate became alone chargeable with it. By our Act of Assembly for taking lands in execution for the payment of debts, (1 Del. Laws, 109,) it is declared that all lands, tenements, or hereditaments, whatsoever within this government, where no sufficient personal estate can be found, shall be liable to be seised and sold upon judgment and execution obtained; and this provision is made, that no creditors may be defrauded of their just debts due to them from persons who have sufficient real estate to satisfy the same. This judgment, in the lifetime of John Phillips, was binding on his real estate, which, by the Act of Assembly, was liable to be [268] seised and sold upon an execution issued thereon.- The law does not require that the execution should issue in the lifetime of the debtor, but it must be issued upon the judgment which binds the land ; and the judgment binds the land until it is satisfied, or until the land is sold upon that or some other judgment. All the lands of both debtors were bound by the judgment, and I cannot per. ceive how this express provision can be avoided by the death of John Phillips. If by his death this judgment were to survive against Thomas Phillips alone, it ’might so happen that the Act of Assembly would be entirely defeated; for suppose a prior judgment to have been recovered against Thomas Phillips, of an amount greater than the value of his whole personal and real estate, the creditor would lose his debt, although John Phillips’ real estate was sufficient to satisfy it. In England lands were not liable to execution in personal actions for debt or damages except in the case of the King, or where the chattels of the debtor were not sufficient to answer the debt, or in an action of debt against an heir upon an obligation made by the ancestor. In the latter case, the reason was that the goods and chattels of the debtor belonged to the executor or administrator, and if the lands were not liable in the hands of the heir, the creditor could have no fruit of his action. 3 Coke Rep. 11, Herberts case : 2 Bac. Abr. 328-9, Execution A : Plowd. 440 : Hob. 60. The statute of Acton Burnell (11 Edw. I) first made burgages devisable liable to be sold upon certain recognizances therein mentioned. Soon after, in 13 Edw. I, the statute of Merchants followed, which made it lawful for a debtor to sell his lands and tenements for the discharge of his debts (recognizances); and if this was not done in a reasonable time, the lands and goods of the debtor might be delivered to the merchant by a reasonable extent, to hold them until such time as the debt should be wholly levied. These statutes were made with a view to com [269] meree, and to enable the merchant to secure his debts by the recognizances or bonds of record, and afterward, on failure of payment, to subject the lands as well as chattels to execution. In the same year, the Statute of Westminster, 2nd, (13 Edw. 1) enacted, that “when a debt is recovered or “ acknowledged in the King’s courts,or damages awarded, “ it shall be from henceforth in the election of him that “ sueth for such debt or damages, to have a writ of fieri facias, unto the sheriff, for to levy the debt of the lands “ and goods; or that the sheriff shall deliver to him all the “ chattels of the debtor( saving only his oxen and beasts of “ his plough) and the one half of his land, until the debt be “ levied upon a reasonable price or extent; and if he be “ put out of that tenement he shall recover by a writ of “ novel disseisin, and afterwards by a writ'of re-disseisin, if “ need be.” This last is the first statute which subjected lands to execution on a judgment or recognizance at common law. The two former statutes were made to subject lands to execution to satisfy certain securities created,by them; as statutes merchant, statutes staple, and recognizances in nature of statutes staple. 3 Coke Rep. 11. Herberts case : 2 Bac. Abr. 328, Execution A ; 2 Saund. R. 48-49, part 1, Tkretheroy vs. Achland, note(3) ; 2 Saund. R. 67-68, part 1, Underhill v. Devereaux, and the notes by Sergeant Williams, to that case. And by the statute of Westminster, 2d, as all the lands are bound, a joint lien shall not survive ; for in executions which concern the realty and charge the lands the sheriff* cannot do execution on the, land of one only. 3 Coke Rep. 14 a. In 5 Com. Dig. 775, Pleader, (3 L. 3) it is said, that “ if the judgment be against two and “ one dies; a seire facias, shall be against the survivor, quare “ execution against his goods and a moiety of his lands, and “ against the heir and terre tenants of the deceased, quare ‘‘ execution against them for a m piety of his lands habere non' “ debet.” He cites Carth. R. 107. In Smarte vs. Edson,l Lev. R. 30, it was adjudged, that “if a judgment be against A [270] and B, and one dies, a scire facias lies against the survivor, and the plaintiff may proceed against him as to the personalty, or he may proceed against the survivor and the heir and charge the lands of both; and if he will take execution on the lien real, the charge ought to be equally against both and the scire facias against both,” And in Pennoir vs. Brace, 1 Salk. R, 320, Holt, C. J. held,that a copias or a fieri facias, being in the personalty might survive and might be sued against the survivors without a scire facias; otherwise of an elegit-, for there the heir is to be contributory. From all the authorities it is clear that a personal-execution will survive,'hut that a real one will not. See 3 Coke Rep. 14 ; 4 Mod. Rep. 315 ; 4 Bac. Abr. 417 Scire Facias c. 5, and the notes in Saunders before referred to. The English statute which gives the elegit, is not more express in charging judgments on land, than is our Act of Assembly; and, indeed, the words used are not as comprehensive as those of the Act of Assembly. Upon the authorities before referred to, and upon ihe reason and intention of the Act of Assembly, I am of opinion that this judgment did not survive against Thomas Phillips alone, but that all the lands originally bound, remained liable to it, until the sale was made by sheriff Haughey of the lands of John Phillips upon the judgment of John and George McOalmont; and then the money in Haughey’s hands was applicable to this judgment, and was a satisfaction of it. At that time the lands of Thomas Phillips became discharged, and had the plaintiff after that sale attempted to recover the, money of Thomas Phillips, a court of equity would have restrained him. I can have no doubt that in equity the land of John Phillips alone ought to have been subjected to this debt; and that if a recovery had been had at law against Thomas, John would have been compelled by a court of equity to reimburse him. John borrowed and had to his own proper use the money for which this bond was given, and upon [271] which this joint judgment was entered. Thomas was his surety only. In such case a court of equity will presume a mistake in point of fact, in every case where a joint obligation has been given, to set up the debt against a deceased obligor. See 8 Wheaton, 214. Upon this principle the executor of Dixon had a remedy in equity against the estate, or rather the representatives of John Phillips, and the sheriff was responsible to him, on the sale, for the amount of the debt. The executor of Dixon can take nothing by his motion, and this money must be distributed among the other judgment creditors of Thomas Phillips.