Samuel Nelson

“ The levy of the execution on the land of James, the surety of Judge Hitchcock in the writ of error, does not affect the lien of the judgment, because the levy, being on real estate, was no satisfaction of the judgment. ”

“ If a judgment debtor aliens the property bound by the judgment or the execution, must his alienee be made a party by scire facias? Surely not. Yet he is a new person, and his interest is affected by the execution. Why is it not necessary? Because the judgment bound the property. So, where an execution is tested before the death, but issued afterwards, the executor is a new party; he is affected by the execution, yet it need not be revived against him, because the property in his hands is bound by a lien which existed prior to the death of his testator. ”

“ The court cite the bill of rights of New York, 'that no person shall be put out of his freehold or lose his goods, unless he be brought to answer,' &c. &c. And they think this provision requires in all instances a sci. fa.
This might be true, if the goods or lands belonged absolutely to the assignee or representative of the judgment debtor, but as they take the land or goods subject to the judgment lien, which lien takes effect not from the sale, but from the rendition of the judgment, the goods never were in contemplation of law, after the sale, their goods or lands. ”

“ The law is settled, that a judgment lien, which is a mere security of record for the debt, is not merged or extinguished by another security which is not of a higher character. A judgment founded on a judgment does not extinguish the first judgment. If a judgment were obtained on the injunction bond, it would not extinguish the original judgment. ”

“ For as the charge of the judgment against the lands does not survive, but continues upon the lands of both after the death of one, the same as before, and cannot be enforced against the real estate of the survivor alone, as in the case of the personalty, and the execution must therefore be issued against both if issued at all, it is obvious the lands of the deceased, in that event, are as liable to be sold by the sheriff as the lands of the survivor. The rights of the heirs and devisees, and the reasons for protecting them by the scire facias, are the same in the one case as in the other ”

“ So, if the conusee dies within the year, his executor cannot have an elegit at common law without a scire facias, nor, if the conusor dies within that time, can the conusee have an elegit against his heir or terre-tenant without such writ. The rule being, he says, that where a new person who was not a party to the judgment or recognizance derives a benefit or becomes chargeable to the execution, there must be a scire facias to make him a party to the judgment or recognizance. ”

“ Otherwise, in both cases, the interest of new parties, upon whom the estate has fallen, or to whom it may have passed, is liable to the suddenly and without notice divested by the silent, and till then dormant, power of the law; parties, too, who from their age and situation in life will not unfrequently be the least qualified to understand and protect these interests, being the children of the deceased defendant.
This writ of scire facias is also made necessary in order to secure the judgment in cases where the plaintiff has neglected to take out execution within the year. ”

“ For, although, according to the law of Alabama, when an execution has been issued during the lifetime of a defendant, but not executed, an alias or pluries may go after his death, and the personal estate of the deceased be levied on and sold to satisfy the judgment, for the reason that the lien, thus regularly acquired under the first, is continued by the succeeding writs, down to the time of the sale ”

“ If so, to pursue it after the death of the defendant is only to adopt the analogous practice of a court of chancery, and consider it a proceeding in rem. This court has gone further than any other in giving effect to sales made under judicial authority. When a judge has declared what shall be done, ought not courts to enforce it? Bidders are encouraged to purchase at sales thus made, and the principle promotes the public benefit. A purchaser ought not to be bound to know whether a party is dead or not. It is an extrinsic fact. The sheriff may not know it himself ”

“ On the 8th of September, 1841, Cowperthwaite, &c., conveyed all their estate and interest in the premises to Dundas and others, the present defendants in error, who, on the 22d of March, 1842, applied to the court to be admitted into the consent rule, and to defend the action as landlords, on filing certain affidavits. This motion was resisted by the plaintiff Erwin, and also by the tenants; but in March, 1843, the court admitted them to defend the suit. Whereupon the cause went to trial, and, under the instructions of the court, the jury found a verdict for the defendants. ”

“ The heirs of the party have not come forward to set the execution aside, but the question has arisen in a collateral action. Injustice must certainly be done by deciding in one way, and in the other there exists a possibility of its happening in some manner which is untold and uncomplained of. The case of Speer v. Sample, 4 Watts, 367, is directly in point, and so is that of Collingsworth v. Horn, 4 Stewart & Porter, 237.
But it is said by the other side, that the lien of the judgment was destroyed by the injunction bond. ”

“ On the 18th of August, 1838, a fi. fa. issued from the Circuit Court clerk's office, on the affirmed judgment against H. Hitchcock, and Robert D. James, his security; which writ came to the hands of the sheriff of Mobile county, being for the amount of the debt, besides the ten per cent. damages. The sheriff indorsed that he received this execution on the 20th of August, and levied the same on certain lots in Mobile, as the property of Robert D. James, and returned it to the fall term. ”

“ That is reasonable doctrine, and avoids litigation. A sci. fa. is often more troublesome than the original suit. It is possible that some new defence may be drawn forth. But is the possibility of this to overbalance certain wrong on the other side? ”