Maxwell v. Leeson

• Citation: 50 W.Va. 361,40 S.E. 420
• Parties: MAXWELL v. LEESON.
• Decision Date: 30 November 1901
• Court: Supreme Court of West Virginia

40 S.E. 420
50 W.Va. 361

MAXWELL
v.
LEESON.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1901.

JUDGMENT—REVIVAL, —DEATH OF DEFENDANT—SCIRE FACIAS—PARTIES—LIEN —SET-OFF—RES JUDICATA.

1. Where the plaintiff in a judgment or decree for money dies, it is not necessary that a writ of scire facias to revive and have execution in the name of his personal representative against the defendant still living should make terre-tenants parties; and an award of execution upon a scire facias which keeps alive the lien of the judgment or decree on land as to the defendant will also keep the lien alive as to the terre-tenants, though not parties to the scire facias.

2. The lien of a judgment upon land exists, though execution may be suspended by the death of the defendant, and may be enforced in equity without revival by scire facias, so long as the scire facias may lie on the judgment.

3. Scire facias. Office of to revive a judgment.

4. The lien of a judgment upon land arises from the judgment per se, irrespective of execution upon it, so long as the judgment is not barred by limitations.

5. To a scire facias to revive a judgment, payment, release, set-off, or other matter arising after judgment may be pleaded, but not any matter existing prior to the judgment.

6. A privy in estate is not affected by a judgment against him from whom the privy derived his estate, rendered after such privy acquired his estate.

7. An order reviving a judgment and awarding execution for money in the name of a per sonal representative of a deceased party for a less sum than the original recovery, by reason of partial payments since the judgment, is not void as a new judgment, or because of variance in amount from the original judgment. (Syllabus by the Court.)

Appeal from circuit court, Doddridge county; G. W. Farr, Judge.

Bill by W. B. Maxwell, administrator of F. Maxwell, against Leroy Leeson. Decree for defendant, and plaintiff appeals. Reversed.

Edwin Maxwell and Millard F. Snider, for appellant.

B. F. Ayers and Homer Adams, for appellee.

BRANNON, P. Franklin Maxwell on July 29, 1885, obtained a decree in the circuit court of Doddridge county against Leroy Leeson for $1,757.50, and docketed it in the judgment lien docket; and on August 24, 1885, execution issued, which was returned, by direction of Maxwell, by the sheriff. Then Maxwell died, and in February, 1895, W. Brent Maxwell, administrator of Franklin Maxwell, sued out a writ of scire facias against Leeson to revive the judgment and have execution awarded in his favor as administrator; and on the 22d of March, 1895, the circuit court of Doddridge county entered an order in chancery reviving the decree in the name of said administrator and awarding execution. On the 3d day of February, 1896, an execution was accordingly issued, and was returned unsatisfied. Leeson owned lands bound by the lien of this decree, some of which he conveyed to Amzella Ins-keep and some to W. H. H. Douglass; and said administrator, W. Brent Maxwell, brought this suit in equity in the circuit court of Doddridge county against Leeson, Inskeep, and Douglass to enforce the lien of said decree against the lands so conveyed by Leeson to Inskeep and Douglass, which suit resulted in a decree dismissing Maxwell's bill on demurrer, and Maxwell has appealed to this court.

A question in the case is whether the decree is barred by the statute of limitations as to Inskeep and Douglass. This chancery suit was brought on the 2d of September, 1899, more than 10 years from the return day of the first execution; and thus the judgment is barred, unless the decree, or, rather, the award of execution upon the scire facias, saves it from the bar of the statute. Inskeep and Douglass say that that scire facias and the award of execution upon it can have no effect upon them, because they were not parties to it. They are grantees of Leeson in possession while the lien of the judgment was in force. Is it necessary that Inskeep and Douglass should have been made parties as terre-tenants to that writ of scire facias? The authorities differ upon this question. It is laid down in 21 Am. & Eng. Enc. Law (1st Ed.) 861, 862, that, "where the judgment debtor has parted with the possession of the

[40 S.E. 421]

land during the time the land was liable to execution under the judgment, the present occupant or terre-tenant must be made a party to, and served with, the writ of scire facias. The terre-tenant is one who has an estate in the land coupled with the actual possession derived mediately or immediately from the judgment debtor while the land was bound by the lien." Black on Judgments broadly says that "the rule is that, on a scire facias to revive the lien of a judgment on land which is in the possession of a terre-tenant, it is essential that the terre-tenant be made a party to the proceeding." To support this position we are also referred to Mower v. Kip, 6 Paige, 88, 29 Am. Dec. 748, and Chahoon v. Hollenback (Pa. Sup.) 16 Am. Dec. 587, and Morton's Ex'rs v. Cro-gan's Terre-Tenants, 20 Johns. 106, and 2 Freem. Judgm. p. 767. In this case the scire facias was...