Warfield ex rel. Manro v. Brewer

Magruder, J., delivered the opinion of this court. To a scire facias issued against the original defendant, and the appellees, as his terre-tenants, the latter pleaded, that the original judgment had been above twelve years’ standing. To this there was a demurrer, which the court below overruled, and the question here is, did the court err in overruling this demurrer? The original judgment was unquestionably above twelve years’ standing, at the time when this sci.fa. was issued. But [268] it appears by the sci.fa. itself, that in order to revive that judgment, a sci. fa. had been previously issued against (lie original defendant alone, and a fiat obtained. It also appears, that this sci.fa. was issued within twelve years after tholfiat. Can this be relied on as an answer to defendant’s plea? It would seem, that in some of our sister States, when a judgment is to be revived in the lifetime of the defendant, it is not deemed necessary to make the terre-tenants parties. See 3rd Rawle, 273. 11 John., 513. In Maryland, however, the practice has been to make the terre-tenants, (if the design was to make their land answerable,) as well as the defendant himself, parties, when the judgment was to be revived. See 2 Harris' Entries, 749, 763. 2nd Evans' Harris, 487, 488. Prom a practice so long established, and without any reason to believe, that a contrary practice ever existed in Maryland, it is rather hazardous to depart. At one period, indeed, it was decided in this State, (and by a court of which one of the judges, at least, was in practice before the revolution,) that without first issuing a scire facias, and making the alienee a party to it, no fi. fa. could be levied on land which the. defendant had aliened after judgment, although issued while that judgment was alive. See 1 Har. & J., 471. 2 Har. & J., 72. This, however, has been overruled, 2 H. & J., 75, and in such a case it is the settled law, that if the fi. fa. be issued within the year and a day, (now three years,) after the rendition of the judgment, it may be levied as well on land conveyed by the defendant after the judgment, as on lands belonging to him at the time of levying the fi.fa. It is, however, quite a different case when the plaintiff, himself, has suffered his judgment to die, and a sci.fa. is necessary in order to reanimate it, The law presumes it, until revived, to be satisfied, and the purchaser has some right to presume it also, and may have purchased it under that belief. It is but justice to extend to him the benefit of the general rule, that “in all cases where the inheritance or freehold is affected, the tenant of the freehold is to be made a party.” Unless this be allowed, then, although the terre-tenant purchases the land twenty years, or a longer period, after the judgment has lost [269] “its active energy,” and is presumed to be satisfied, it will be in the power of the defendant, if he be yet alive, to make the land of his alienee answerable for the debt, by entering a fiat, although if he die, and no sci.fa. is issued upon the judgment, until the twelve years have expired, the terre-tenant may, by the plea of limitations, protect his freehold. It is difficult, indeed, to account for some of our notions of the law upon this subject. In 1st Brockenborough, 170, Chief Justice Marshall says, “a judgment at common law did not bind lands, and there is no statute which, in direct terms, creates the lien. But courts have so construed the statute which gives the elegit, as to infer the lien from the power to take the lands in execution. The lien then grows out of the right to issue the elegit, and is inseparably connected with that right.” But whence the right to issue a fieri facias, and under it sell lands, which the defendant had aliened bona fide before the writ was issued? We know, that the statute, 5 George, 2, ch. 7, did give the right to sell real estate “within any of the British plantations,” but, “in like manner as personal estate in any of the said plantations, are seized, executed, sold or disposed of.” But by what statute does the lien grow out of the right to issue the fi.fa.9 How is it inseparably connected with that right? We must, however, be bound by the decisions of our courts, and these decisions require us to say, that the lien still exists, and the real estate may be sold, notwithstanding an alienation after judgment. We know, however, of no decision by our courts, that when the judgment is to be revived, it is not necessary to make tlie terre-tenant a party, in order to proceed against his laud, or that he is to be bound by any sci.fa, issued after the alienation, and to which he was not a party. The case of Mullikin and Duvall, 7 G. & J., decides nothing in favor of the appellant. The new judgment, in order to have “the attributes” of the original judgment, must be against the necessary parties. If the original be revived against the executors only, it certainly is not, as it originally was, a judgment to bind the lands. [270] It has all along been assumed, that the terre-tenants became so before the second sci.fa. was issued. In this case, however, it does not appear at what time the original defendant aliened this land. The alienation may have taken place immediately after the original judgment, or not until a fiat was obtained against the original defendant. Here is an omission which cannot now be supplied. Whose fault is this? Who is to suffer by it? It is apprehended, that this cannot prejudice the appellee. The plaintiff in error ought either to have guarded against this in his scire facias, or to have introduced the necessary matter into a replication to the plea. If, however, the plea in this case was not the legal defence, which it is supposed to be, the question would be, who committed the first error in pleading? In the case of Prather vs. Manro, 11 G. & J., the court said, the scire facias should contain upon its face such a statement of facts, as to justify the process in respect to the form in which it issues, and the persons who are made parties to it. The objections to be taken to this sci.fa., is like those in that case. See also other objections to it, in 2 Tidd’s Practice, 173, Phila. Edit., 1828. JUDGMENT AFFIRMED.