Adams v. Stake

Stone, J., delivered the opinion of the Court. Waiving all objections to the form of the prayer, the Court below were clearly right in rejecting it. [448] (Decided 22nd June, 1887. The fund sought to he attached in this case was the proceeds of the sale of certain lands belonging to the children of Mrs. Mondell, and which they inherited from their aunt, Miss Binkley. These lands never did belong to Mrs. Mondell. Although these lands were the lands of the children, and not the lands of Mrs. Mondell, the appellants seek to make them responsible for the debts of Mrs. Mondell by virtue of a scire facias against the children of Mrs. Mondell as heirs and ter re-tenants of their mother. But the record of the scire facias against them as such heirs and terre-tenants sustains no such claim. The scire facias is in the common form against the heirs and terretenants of Elizabeth Mondell, and describes the children, but gives no description of the lands sought to be charged, and does not charge .that the heirs of Mrs. Mondell got any property from her by descent or demise. The amended return of the sheriff, which the plaintiff seems to rely upon, does not cure this, but only describes the children of Mrs. Mondell as terre-tenants of a lot in Hagerstown, which belonged to Mrs. Mondell in 1880, some years before the death of Miss Binkley, from whom the children got the land in dispute. But by no possible conclusion of law or fact could the property which- belonged to Mrs. Mondell in 1880, be made the same property that she never did own, and which her children inherited in 1885, from their aunt, Miss Binkley. The pleadings in the scire facias case raised only the questions of the satisfaction of the judgment and the liability of the lot in Hagerstown, formerly owned by Mrs. Mon-, dell, for it ; and the fiat only operated on those questions so raised by the pleadings. The fiat in that case does not affect the children’s own land. Judgment affirmed.