Prewitt v. Jewell

• Decision Date: 31 January 1846
• Citation: 9 Mo. 732
• Parties: PREWITT ET AL. v. JEWELL.
• Court: Missouri Supreme Court

9 Mo. 732

PREWITT ET AL.

v.JEWELL.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO BOONE CIRCUIT COURT.

D. TODD, for Plaintiffs, assigns the following as sufficient reasons for a reversal of the judgment of the Circuit Court: 1. That the lien of a judgment creditor expires, upon the debtor's death, upon his real estate. 2. The lien at law is a general lien, and not becoming specific by a levy before the death, upon any portion of the realty, the judgment creditor cannot acquire a general lien upon the lands of the deceased, after the death. 3. Upon the death of a judgment debtor, the debts are fixed in a course of administration, and a court of law has no jurisdiction to enforce a collection of any judgment by scire facias, or any other remedy. 4. The lien of such judgment upon the lands, is a statutory remedy, and can only be enforced according to the statute, at law; and a court of equity has no jurisdiction to enlarge the lien, or enforce it. 5. When the lands of a judgment debtor are sold upon a junior judgment, subject to the prior judgment, neither at law, nor equity, can the purchaser be subjected to the payment of the elder judgment. 6. If the elder judgment creditor fails to enforce his lien by execution before the debtor's death, the court cannot in law or equity revive the lien, or enforce the collection of the debt. 7. It is a misjoinder to make the purchaser of the land, and the administrator of the deceased debtor, joint parties, for the same judgment cannot be entered. 8. It is a misjoinder to make the heirs of the deceased debtor parties with the purchaser and administrators, when the judgment is not for the realty, but for a personal debt.

LEONARD & GORDON, for Defendant. 1. The lien of a judgment upon the real estate of a debtor, is not extinguished by the death of the judgment debtor. Rev. Stat. of 1835, title Judgments and Decrees, §§ 2, 3, 6, 7; title Executions, §§ 4, 6; Rankin & Schabell v. Scott, 12 Wheat. R. 177; Taylor v. Thompson, 5 Peters' R. 371. 2. In a proceeding to revive the lien of a judgment, the heirs, personal representatives, and terre tenants ought all to be made parties. Rev. Stat. of 1835, title Judgment and Decrees, § 7; 6 Bac. Abr. 115; Executors of Morton v. Terre Tenants of Croghan, 20 Johns. R. 106; Jackson v. Shaffer, 11 Johns. R. 515.

SCOTT, J.

Jewell, in October, 1840, obtained a judgment against George Northcut in a justice's court, and immediately thereafter filed a trascript thereof in the office of the clerk of the Circuit Court of Boone county. Afterwards others obtained judgments in like manner against Northcut, and filed transcripts of them. On these last judgments executions were issued, and the lands of Northcut sold to satisfy them. Prewitt, the plaintiff in error, and Oliver Parker, since deceased, became the purchasers. In the interval between the issuing of the executions, and the sale under them, Northcut died. Jewell afterwards, in October, 1843, sued out a scire facias to revive his lien against the administrator and heirs of Northcut, and the purchasers of the land at the sheriff's sale. On a demurrer to the scire facias judgment that the lien be revived was given, to reverse which Prewitt sued out this writ of error.

The main question presented by the record, is whether the lien of a judgment is extinguished by the death of the judgment debtor. If the death of a judgment debtor produce such an effect, it must be by reason of some statutory provision, or of some manifest incongruity between the existence of the lien and laws whose meaning and construction are beyond all question. Such an idea borrows no support from the common law, or early statutes made in aid thereof. After the statute of 13 Ed. I, subjecting lands to execution, after the death of the ancestor against whom a judgment had been rendered, a scire facias lay on the judgment to revive it against the heir. Jefferson v. Morten, 2 Saund. 6. In this State, in 1807, judgments were declared to be liens on the real estate of the debtor, and made to continue in force for five years. By an act passed in 1822, the duration of the lien was limited to three years, and provision made for the revival of it against the heirs of the debtor. The same provision is in the revision of 1825, and is continued in that of 1835. The law relative to Administration, passed in 1825, § 49, permitted executions to issue against a decedent's estate, after the lapse of eighteen months from the grant of letters testamentary or of administration. A power to sell deceased person's estates on execution, being entirely subversive of the administration law, and rendering a compliance with its provisions, relative to the classification of demands impossible, the act of the 30th December, 1826, was made, which prohibited any execution from issuing on any judgment, or decree rendered against the testator, or intestate, in his life-time, or against his executors and administrators after his death, but directed all such demands to be classed, and proceeded on in the Probate Court. By some oversight this act was omitted in the revision of 1835; but notwithstanding the omission executions were not issued against the estate of deceased persons in the hands of executors or administrators; however, to secure this exemption beyond all controversy, the act of February 1, 1839, was enacted, which directs that no execution shall be issued against the lands, tenements, goods, chattels, or effects of any testator or intestate, upon any judgment against an executor or administrator as such; and as no execution can issue on a judgment against a deceased person without a scire facias to revive it against the executor or administrator, and as the reason which operates to withhold an execution on a judgment against the executor or administrator would withhold it on a judgment against the deceased, we are of the opinion that this act afforded to a deceased person's estate the same protection against executions that was given by the act of 1826.

We thus have the estate of deceased persons, freed from executions. If there is a lien it must be enforced in some other way than by execution. Is there anything in the administration law which negatives the continuance of the lien, or which cannot be reconciled with its existence. The lien is given by law, and by law it can be modified and controlled. The administration law classes the demands against an estate, and after providing that funeral expenses, expenses of the last sickness, and debts due the State, shall constitute the first three classes, directs that judgments rendered against the deceased in his life-time, shall constitute the fourth class; thus giving those judgments priority over all other debts except those above mentioned. It is then provided, that all demands against any estate, shall be paid by the executor or administrator, as far as he has assets, in the order in which they are classed, and no demand of one class shall be paid until all previous classes be satisfied; and if there be not sufficient to pay the whole of any one class, such demands shall be paid in proportion to their amounts. The personal estate is made the primary fund for the payment of debts, and in the event of a deficiency of personal assets, the lands may be sold, and when sold the purchaser takes it, discharged from all liability for the debts. Can the idea of a lien exist with the above provision for the payment of debts? The fourth class of demands consists entirely of judgments rendered against the deceased in his life-time. The argument assumes that those judgments are liens on the land. If one judgment of the class is a lien, then all the other judgments of that class are liens, and there are no other debts in the class than judgments....