Bish v. Williar

• Citation: 59 Md. 382
• Parties: EPHRAIM BISH, Terre-tenant of WILLIAM STANSBURY v. SARAH V. WILLIAR and GEORGE W. STANSBURY, Executors of JOHN S. STANSBURY.
• Decision Date: 14 February 1883
• Court: Maryland Court of Appeals

59 Md. 382

EPHRAIM BISH, Terre-tenant of WILLIAM STANSBURY v. SARAH V. WILLIAR and GEORGE W. STANSBURY, Executors of JOHN S. STANSBURY.

Court of Appeals of Maryland

February 14, 1883

APPEAL from the Circuit Court for Carroll County.

The case is stated in the opinion of the Court.

The cause was argued before ALVEY, YELLOTT, STONE, IRVING, and RITCHIE, J.

Charles B. Roberts, for the appellant.

Wm. P. Maulsby, for the appellees.

IRVING J., delivered the opinion of the Court.

This appeal brings for review several rulings, of the Circuit Court of Carroll County, upon a scire facias to revive a judgment in that Court alleged to have been recovered by the testator of the appellees against one William Stansbury, on the first day of April, 1854, and which judgment is alleged to have been revived in 1859, and again in 1874, upon proceedings begun in 1868. In the revival judgment of 1874, it is alleged, that a judgment was obtained against the appellant as terre-tenant of Wm. Stansbury, and this proceeding is especially intended to revive the judgment then alleged as obtained against the land of the appellant as terre-tenant. A demurrer was interposed to the writ, which having been overruled, presents the first question for consideration. A scire facias to revive a judgment is, as to the judgment debtor and his heirs or personal representatives, a continuation of a former proceeding; still it is really an action, as to the parties sought to be charged, and should, therefore, contain sufficient certainty to enable the Court to give judgment. Tidd's Practice, 1090; Pickett vs. Pickett, 1 Harr., (Miss.,) 269.

The writ is, in fact, a declaration to which the parties defendant plead or demur as in any other action, but directly to the writ. 2 Tidd's Pr., 1090; Prather vs. Manro, 11 G. & J., 261; and Bowie vs. Neal & Luckett, 41 Md., 125.

In the case of Prather vs. Manro, this Court said the writ "should contain on 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 formality, with which all recitals necessary to establish a terre-tenant's liability, must be set out, will be seen by reference to Jefferson vs. Morton & Dawson, 2 Wms. Saunders, 6; which case is referred to in Adams vs. Terretenants of Savage, (2 Salkeld, 600,) as a good precedent. As respects terre-tenants, it is strictly a proceeding in rem. No personal judgment is obtained, but simply a judgment subjecting the land in the hands of the terre-tenants, which belonged to the judgment debtor at the date of the judgment to its payment. The judgment of the Court is that such land may be taken by fieri facias. Thomas vs. Farmers' Bank, 46 Md., 57, and authorities there cited. From the very object of the proceeding as against terre-tenants, it is manifestly necessary that there should be a specific description of the lands, that it may be certainly known what lands are liable to the execution ordered to go out. All this is so fully and clearly laid down in the case last cited, it is useless to say more on that subject; but will proceed to examine this writ in the light of the principles announced. Looking carefully at this scire facias, we find a number of defects for which the demurrer ought to have been sustained.

First, we may notice that whilst the writ alleges, that on the second Monday of May, 1874, a judgment was obtained against the lands of the judgment debtor, at date of the judgment; and in the hands or possession of the appellant as terre-tenant, it does not recite by what means such judgment was obtained. It fails to state whether this appellant was brought in by scire facias, in general or special form, whereby either in the writ, or in the special return of the sheriff, his land sought to be charged was indicated by description, giving him sufficient notice. Although, as against the judgment debtor and his heirs, or personal representatives, the scire facias proceeding, which culminated in judgment of fiat in 1874, was a continuation of the original proceedings in which judgment was obtained; yet, as against terre-tenants, who are entire strangers, a scire facias, intended to subject land claimed by them to the payment of a judgment against another, must be regarded as so far a new proceeding, that everything necessary to co-exist to affect their rights, must appear in the writ. The reason for this is, that strangers may falsify the judgment, whilst parties and privies are bound by it and estopped. Proctor vs. Johnson, 2 Salkeld, 599. We find no precedent precisely in point, for we can find no instance where " fiat" having once been secured against lands of a terre-tenant, another sci. fa. has been resorted to for the renewal of such judgment, as is the case here. We have, however, found one precedent somewhat analogous. In a scire facias to enforce a judgment rendered on a forfeited recognizance, the writ recites not only the fact, that the recognizance was forfeited on a certain day, but also that the person bound thereby to appear, was duly called, and failed to appear, whereupon, the Court did adjudge the recognizance forfeited. 2 Harris' Entries, 740; 2 Evans' Harris, 470. Conceding for the purpose of decision only, that a scire facias will lie to revive a judgment in rem, without deciding that it does, we think, that if it does, this writ is defective in not showing how this judgment of condemnation was revived.

As against terre-tenants scire facias is a proceeding of great strictness, and all the common law requisites must be observed in the structure of the writ. It should set out all the facts relied on to justify the form in which it issues, and the relief it seeks against the persons named. This is especially seen in the case of Jefferson vs Morton, (already cited.) The writ should contain everything that is necessary to make a complete cause of action against the...