Durham v. Heaton

Breese, J. The solution of the question presented by this record, depends entirely upon the validity of the execution under which the land was sold, and which issued out of the Supreme Court, in favor of Lewis, Adm’r, against Bindley and Doolittle. If that execution was not void, then the title of appellants to the premises in controversy, was clearly made out. The appellee insists that the execution is void, it being materially variant from the judgment; and that it was not competent to prove by parol, that the execution did in fact issue upon the judgment. That should appear from inspection. The fact of variance is conceded. The judgment was recovered December 16,1837, in favor of William Dougherty, against Oliver Bindley and Irwin B. Doolittle, in the Supreme Court of this State, for the sum of three thousand four hundred and forty-one dollars and forty-one cents. On this judgment an execution issued December 26, 1837, and duly returned in part satisfied, as appears by the deposition of William A. Turney, Esq., clerk of the Supreme Court, and having custody of the records and files of the court in which the judgment was rendered. This deposition proves, also, the loss of this execution. Sometime in 1839, the judgment being unsatisfied, the judgment creditor died, and an administrator on his estate was duly appointed by the proper court, who, in 1811 or 1812, caused to be recorded in the Supreme Court, his letters of administration, and afterwards, on the 8th day of July, 1813, caused an execution to be issued out of said court, upon this judgment'in the name of the administrator, and directed the same to the sheriff of Bureau county to execute. The sheriff of Bureau county duly levied the writ upon the land in controversy, and sold the same according to law, and executed a deed to the purchaser, through whom, it is not denied, the title is clear to the appellant. Here comes in the objection. The execution under which the levy and sale was made, recites a judgment against Bindley and Doolittle, for the sum of four thousand one hundred and thirteen dollars and fifty-six cents, fourteen dollars and eighteen and three-fourths cents costs in the Circuit Court of Tazewell county, and ten dollars and seven cents costs in the Supreme Court. A vast discrepancy between this amount, and the amount of the judgment as rendered, even with interest added. How the question comes up, Can a stranger to the judgment and execution and to all the proceedings under it, take advantage of this variance in a collateral proceeding ? This involves the question, Is such an execution, so variant as it is from the judgment, void, or voidable only ? One proposition includes the other. A void writ has no vitality, and nothing exists by which it can be amended—the breath of life cannot be infused into it, and it is a nullity. Hot so with a writ voidable only. Such a writ, if a summons, can be amended by the precipe—if a ji. fa., by the judgment, and all acts done under it, are valid and binding, until set aside. All voidable process can be made perfect, by proper amendments—void process cannot be. An instance of the first kind is seen in this execution, the other kind will be seen in a writ issued by a court or magistrate not having jurisdiction of the subject, or of a writ from a court of record without a seal, or where there was no judgment. It is impossible to amend such writs, they being void in the inception. The defendant however insists, that the variance is so great as to compel the inference it did not issue on the judgment recovered, and that parol proof cannot be received to show its identity. He insists that the records of a court must prove themselves. As a general principle this is true, but where it is shown to the court by the keeper of the records of a court, that there is no other judgment on those records than the one in question, the proof is as complete as if the records were present to he inspected. The fact is so, or it is not so, and that is to he determined by the records, either by inspection or by th^e sworn testimony of the keeper, who has carefully examined and searched them, with a view to establishing the fact. Can this party take advantage of this objection, he being a stranger to the proceedings ? If it was raised by the debtor himself, a different question would be presented, but even as regards him, the execution would not be void, and a party, not the plaintiff in the writ, purchasing the land under the sale made- under the writ, would hold the land. The process would stand good until avoided in a proper manner. The defect in it cannot be taken advantage of by any one in a collateral action; its validity was not affected by the variance ; it was amendable at any time as well after as before the sale. Jackson v. Anderson, 4 Wend. 478. So in Philips v. Coffee, 17 Ill. 154, this court held that a purchaser at a sheriff’s sale, who is not a party to the proceedings, having a good deed, will not be defeated in his title by any defect or irregularity ; he relies upon the judgment, levy and deed; all other questions are between the parties to the judgment and the officer. A stranger to the proceedings cannot question them collaterally. Swiggart et al. v. Harber, 4 Scam. 364; Riggs v. Cook, 4 Gilm. 336. Whilst no one is bound by acts done under void process, those are binding which are done under erroneous or voidable process, and cannot- be successfully assailed exeept by a direct proceeding to set them aside, not by “ a side-wind.” The defendant, however, contends that the execution on which the sale was made, was never regularly issued from the Supreme Court, for the reason that the judgment was never revived in that court, in favor of the administrator, and that his letters of administration were never recorded in the Supreme Court. Previous to the act of 1810, concerning judgments and executions, the only mode by which a judgment could be revived at law, against a deceased debtor, was by scire facias, a mode attended with great delay and expense. The act of 1810, sec. 10, is as follows: “The collections of the judgments of courts of record shall not be delayed or hindered by the death of the plaintiff or person in whose name the judgment shall exást, but the executors or administrators, as the case may be, may cause the letters testamentary or of administration to be recorded in the court in which the judgment exists, after which execution may issue and proceedings be had thereon in the name of the executor or administrator as such, in the same manner that could or might be done or had if the judgment exists and remains in the name and favor of the-executor or administrator, in his, her or their capacity as such executor or administrator.” (Scates’ Comp. 610.) The clerk of the Supreme Court testified, that the record of his court showed that letters of administration upon the estate of William Dougherty, who died intestate March 15, 1810, were granted to Thomas Lewis, public administrator, by James Adams, probate justice of the peace, of Sangamon county, of the State of Illinois, August 23, 1842. This, the clerk states, is duly entered upon the records of the court, and makes an exhibit of such entry. This, it is insisted, is not a compliance with the statute—that, requiring that the letters should be recorded in the court. The language of the statute is, the administrator shall “ cause them to be recorded,” not that they shall have no operation until they are actually recorded. All that the administrator could do, would be to bring his letters into court, that the court may see he was no pretender, but possessed the character he claimed. It was the business of the clerk to record them, and if he failed to doit, the administrator should not suffer or be put in peril. He presented to the court his letters of administration duly granted, the effect of which should be, as the statute contemplated, to revive the judgment in his name, with power to issue an execution in his name. The execution was properly issued in the name of the administrator. But it is objected, that it does not recite, the execution was on a judgment obtained by William Dougherty against Bindley and Doolittle, but as a judgment recorded by Thomas Lewis, administrator of William Dougherty, and is in that respect, not identical .with the judgment actually rendered in 1837. The execution would have been more formal and precise, if there had been an; additional recital in it, to this effect: which William Dougherty in his lifetime recovered, etc., and which judgment has been revived in the name of Thomas Lewis, administrator, etc. But it is, as it reads, a literal compliance with section forty. Execution is to issue and proceedings be carried on after recovering the letters, in the name of the administrator. This, too, is an objection made by a stranger to the proceedings, and if valid, could not prevail in his-behalf. It is also insisted by the defendant, that the lien of this judgment rendered in 1837, did not reach beyond the county where the judgment was rendered, and could not be effectual in another county, certainly not, without levy and notice of record in the county where the lands were situate, or against a Iona fide purchaser, whose deed was recorded prior to the levy. He further contends that our statute does not make, and did not intend to make, judgments of any court, except courts of original jurisdiction, liens upon real or other estate. Section 1, of chap. 57, title “Judgments and Executions,” provides, that all and singular the goods and chattels, lands, etc., of every person against whom a judgment has been or shall be obtained in any court of record, either at law or in equity, for any debt, etc., shall be liable to be sold upon execution, etc.; and the said judgments shall be a lien on such lands, etc., from the last day of the term of the court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time within one year on such judgments, etc. (Scates’ Comp. 602, 603.) We perceive no restriction to judgments of courts of original jurisdiction, but it is general to any and all courts of record, and we see no reason for such restriction. At the common law a judgment created no lien upon the lands of a defendant. The land was made liable to satisfy the judgment under an elegit, a writ given by the statute of Westminster, 2, 13 Edw. I, ch. 18, and this, it has been held by the courts of England, gave a lien on the lands of the judgment debtor. It has been the policy of our law, from our earliest history, to subject, real estate to the payment of debts, and our present statute which we have cited, is nothing more than a copy of the law which was in force when this State formed a part of the territory north-west of the river Ohio, and subsequently a part of the territory of Indiana, differing, however, in this, that our present statute limits the lien to seven years. It gives a lien upon all the lands of a defendant, on all judgments rendered in a court of record. This provision is very sweeping and extensive, and does not in terms restrict the lien of a judgment in the Circuit Courts, to the lands lying within the county in which the court is held, and has been so restricted, only by the judicial decision, to such county. Banvard et al. v. Morrison et al., 1 Scam. 235. The limits of the State, in the exercise of the jurisdiction of the Supreme Court, is as the limits of a county to a Circuit Court; consequently, if the lien of a j udgment is limited to the county in which the court exercises its jurisdiction, so must the lien of a judgment rendered by the Supreme Court extend throughout the State, since to that extent could its jurisdiction be exercised when this judgment was rendered. Was it not for the decision above cited, one member of the court would be inclined to hold the true test and principle to be, that the lien of a judgment should extend to all the lands of the debtor which can be reached by an execution issuing out of the court where the judgment is rendered. The j mistión of the Circuit Courts to enforce their judgments, extends throughout the State, as an execution can be issued to any county in the State. The lien, then, should be co-extensive with the jurisdiction. And from this no injury could result, the judgment creditor being required to file his lien in the distant county. The Supreme Court having jurisdiction co-extensive with the limits of the State, its judgments must create a lien to the same extent. The defendant argues against this, that great injustice might be done, by extending the lien of such judgments, as no record notice of them is required to be made in the counties where such lands may be subject to them. This can be provided against by the legislature. We can only determine what the law is, on a given state of case. It seems a necessary regulation that judgments of the Supreme Courts, to create a lien on lands in every county in the State, should be docketed in the office of the clerk of the Circuit Court of such county, which would operate as notice. In this case, the law dfd not require it, and no one has a right to complain, that the parties interested in recovering this judgment, took the proper steps to enforce it against property bound for its payment, although sold to a subsequent purchaser previous to the issuing of the execution. The judgment was notice of itself—the law implies notice to all subsequent incumbrancers and purchasers. The defendant further argues, that the lien was released, if it ever existed, by the death of the judgment creditor. The statute is different. The forty-first section of the act we have referred to, provides that “The lien created by law, on property, shall not abate or cease by reason of the death of any plaintiff or plaintiffs; but the same shall survive in favor of the executor or administrator of the testator or intestate, whose duty it shall be to have the judgment enforced as aforesaid.” (Scates’ Comp. 610.) We perceive no defect in the title set up by the plaintiff in error, and the issue should have been found for him upon the facts. The Circuit Court having entertained a different view, its judgment must be reversed, and a new trial had. Judgment reversed.