Maxwell v. Leeson.

• Decision Date: 30 November 1901
• Court: West Virginia Supreme Court
• Parties: Maxwell, Administrator, v. Leeson.

50 W.Va. 361

Maxwell, Administrator,

v.Leeson.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1901.

Decided November 30, 1901.

1. Decree or Judgment Decedent Scire Facias.

"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. (p. 363).

2. Judgment Lien Exists Execution Suspended.

The lien of a judgment upon land exists, though execution may he 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. (p. 365).

3. Revival of Judgment.

Scire facias. Office of to revive a judgment. (p. 365.)

4. Lien of Judgment Arises per se.

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, (p. 3bti).

5. Scire Facias Defense Thereto.

To a scire facias to revive a judgment payment, release, setoff or other matter arising after judgment, may be pleaded, but not any matter existing prior to the judgment, (p. 368).

6. Parties Interest Effect of Judgment.

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. (p. 369).

7. Judgment Revival Execution Decedent.

An order reviving a judgment and awarding execution for money in the name of a personal 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, (p. 370).

Appeal from Circuit Court, Doddridge Count.

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, President:

Franklin Maxwell on July 29, 1885, obtained a decree in the circuit court of Doddridge County against Leroy Leeson for one thousand seven hundred and fifty-seven dollars and fifty cents 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 3rd 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 Inskeep and some to W. H. if. 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 ten 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. Ency. L. (1 Ed.) 861, 862, that "where the judgment debtor has parted with the possession of the 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." 1 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 Ch. 88, and Chahoon v. Hollenbacl:, 16 Am. Dec. 587, and Morgan v. Grogan, 20 Johns. 106, and Freeman on Judgments, Vol. 2, page 767. In this case the scire facias was against a living defendant, and sought execution in behalf of the administartor of a deceased plaintiff. In such case I state the true rule to be that laid down in 1 Freeman, Executions s. 87, that "in the case of the death of the original defendant the terre tenants are to be made parties, and not where the original defendant is living. This view we thing is sustained by the books of practice. In none of these works do we find any reference to any case in which the successors in interest of a living defendant need be summoned as terre tenants. On the contrary, it seems always to be assumed that the only instances in which it can be necessary to summon others than the original defendants are where new persons have become interested either through the death, marriage or bankruptcy of the defendant." Such, surely, has been the practice in the Virginias. We never make alienees of the judgment debtor parties to a scire facias to revive judgments. It is to be understood that in this case we do not say what the law is as to the necessity of making terre tenants parties who claim under a dead judgment debtor. I think that it is in those states where under execution land may be seized and sold that the rule of making terre tenants parties to a scire facias prevails. Where an execution may be levied upon land there is reason to require notice to be served on terre tenants whose land is to be sold from them; but as an execution in this State is not leviable upon land, that reason does not exist. Such purchasers from the judgment debtor can have their land sold only by a chancery suit to enforce the lien of the judgment, and thus have opportunity to make their full defense against it. What is the reason for a scire facias to revive a judgment? It is to make the record consistent. It would not do, where the judgment was between living parties to issue an execution in favor of or against their administrators, as this would not harmonize with the record of the judgment; and hence we resort to a scire facias suggesting a change of parties in order to get an execution in new names, and thus show by the record why there is a departure in the execution from the judgment, and justify such variance. Foster on Scire Facias 99 says: "It is a general rule that in all cases where a new person who was not a party to a judgment or recognizance derives a benefit by, or becomes chargeable to the execution, there must be a scire facias to make him a party to the judgment. But where the execution is not beneficial or chargeable to a person not a party to the judgment, then it seems this rule does apply, and a scire faciac is not necessary. * * * *The reason for the rule is that the execution must be warranted by the judgment, and a new party being a stranger to the judgment, he not being named on the record, the judg- merit would not warrant an execution for or against him until he should be made a party." In the place cited in Foster, and also on Page 189, Foster says that "where a sole plaintiff or defendant dies after judgment, a scire facias must be sued out by or against his personal representative, in order that execution may be had of the goods and chattels of the party against whom the judgment is given." See 2 Bart. L. Prac. 1022.

Now, this shows that where the execution goes only against personalty, only the personal representative is a necessary party. It goes to show that only he need be a party to a scire facias' whose property is to be taken by execution under it. It goes to show that only a party to be benefitted or prejudiced directly by force of the execution itself need be a party to the scire facias. An execution does not either benefit or injur 13 a terre tenant in West Virginia because his land cannot be taken by it and it has no effect upon him directly, the execution itself has not. This is confirmed by Maryland decisions cited for the proposition, that although the defendant be living, the judgment cannot be revived against hirn so as to affect his grantees, unless they are made parties. But those cases show that it is upon the ground of contribution that all terre tenants are required to be made parties to a scire facias. There the execution operates to sell the land, and in order that one party may have contribution from other vendees to help pay the debt, they must be parties. Doub v. Barnes, 4 Gill 1, also Morton v. Grogan, 20 Johns. 106. These views tend to the conclusion that as in this State an execution does not affect land, there need not be in any case of scire facias service thereof on terre tenants, and they need not be parties; but this case being...