ERWIN'S LESSEE V. DUNDAS, 45 U. S. 58 (1846)

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U.S. Supreme Court

Erwin's Lessee v. Dundas, 45 U.S. 4 How. 58 58 (1846)

Erwin's Lessee v. Dundas

45 U.S. (4 How.) 58


Although by the law of Alabama, where an execution has issued during the lifetime of a defendant but has not been actually levied, an alias or pluries may go after his death, and the personal estate of the deceased levied upon and sold to satisfy the judgment, yet this is not so with respect to the real estate.

By the common law, the writ of fieri facias had relation back to its teste, and if the execution was tested during the lifetime of a deceased defendant, it might be taken out and levied upon his goods and chattels after his death.

But if an execution issues and bears teste after the death of the defendant, it is irregular and void, and cannot be enforced against either the real or personal property of the defendant. The judgment must first be revived against the heirs or devisees in the one case, or personal representatives in the other.

Such is the settled law where there is but one defendant.

Where there are two defendants, one of whom has died, the judgment cannot be chanrobles.com-red

Page 45 U. S. 59

enforced by execution against the real estate of the survivor alone, and as it has to issue against the real estate of both, the real estate of the deceased is protected by the same law which would govern the case if he had been the sole defendant. The judgment must be revived by scire facias.

Before and since the Statute of Westminster 2d (which subjected lands to an elegit), a judgment against two defendants survived against the personal estate of the survivor, and execution could be taken out against him within a year without a scire facias.

But before the real estate of the deceased can be subjected to execution, the judgment, which does not survive as to the real estate, must be revived against the surviving defendant and against the heirs, devisees, and terre-tenants of the deceased.

The interest of new parties would otherwise be liable to be suddenly divested without notice.

In these views the highest court of the State of Alabama concurs. (See 6 Ala. 657.)

This was an action of ejectment brought by Erwin, the plaintiff in error, to recover a lot in the City of Mobile, known as Hitchcock's cotton press, bounded on the north by Main Street, on the east by Water Street, on the south by Massachusetts Street, and on the west by Royal Street, under the following state of facts.

Prior to November, 1836, Henry Hitchcock was seized and possessed of the above lot, and on 2 November, 1836, a judgment was recovered against him in the Circuit Court of Alabama for Mobile County by William McGehee to the use of Abner McGehee.

By the laws of Alabama, this judgment was a lien upon the defendants' real estate.

On 21 December, 1836, Hitchcock sued out a writ of error to the Supreme Court of Alabama, giving the usual bond, with Robert D. James as surety, whereby the judgment was superseded.

On 23 June, 1838, the judgment of the circuit court was affirmed in the supreme court, which affirmance, by the laws of Alabama, operated as a judgment on the bond in error, against both parties obligors.

On 14 July, 1838, Hitchcock executed a mortgage of the lot in question to Cowperthwaite, Dunlap, and Cope, to secure the payment of a debt due to them.

On 18 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 percent damages. The sheriff endorsed that he received this execution on 20 August, and levied the same on certain lots in Mobile, as the property of Robert D. James, and returned it to the fall term.

On 10 October, 1838, Hitchcock, with the consent of chanrobles.com-red

Page 45 U. S. 60

the mortgagees, leased the property to Mansoney and Hurtell for a term of five years.

On 29 November, 1838, a venditioni exponas issued to the sheriff, commanding him to sell the property, on which he had levied, as shown by his return. To this venditioni exponas he returned that he had advertised the property for sale and that on 2 March, 1839, all further proceedings had been stopped by an injunction.

On 2 March, 1839, Henry Hitchcock filed in chancery a bill against McGehee, praying, for causes shown in the bill, relief against the judgment at law and that the same should be enjoined. On this bill an order was made for an injunction in the following words:

"On the complainant's executing bond, with good and sufficient security, in double the amount of the judgment at law, let an injunction issue agreeably to the prayer of the bill."


"28 February, 1839"

"To the Clerk of the Circuit Court of Mobile County, Alabama"

The complainant, Hitchcock, filed a bond by himself and William Crawford, as his security, in the penal sum of $8,404, payable to McGehee, dated 2 March, 1839, with a condition which, after reciting the rendition of the judgment, the filing the bill, and granting of the injunction &c., ran in these words:

"Now therefore, if the said Henry Hitchcock shall pay and satisfy all damages that the defendant McGehee may sustain by the wrongful exhibition of said bill, and in all things abide by and perform the ultimate decree which may be rendered in the cause, then this obligation to be void and of no effect, otherwise to be and remain in full force and virtue."

A writ of injunction issued on 2 March, 1839, commanding the sheriff to stay proceedings on the execution, on which he returned that on the same day he desisted from all farther proceedings, and returned the execution as enjoined.

On 12 August, 1839, Hitchcock died.

At the fall term of the chancery court, on 25 November, 1839, the following order was made in the cause:


"This day came the defendant, by his solicitor, and suggests to the court that the complainant has died since the last term of this court, and thereupon it is ordered, on motion of defendant's counsel, that the representatives of the complainant revive the proceedings by bill against the defendant by 1 April next, or

Page 45 U. S. 61

the injunction shall be from thence dissolved, and the defendant have leave to proceed at law."

At the Spring term, 1840, 22f May, 1840, the following order was made:

"At the last term of this Court an order was made suggesting the death of the complainant, and that unless the suit be revived on or before the first day of the next term of said court, that the injunction be dissolved, and no party complainant being made, it is ordered that the suit abate, and that the complainant's administrator and heirs and security on the injunction bond pay the costs."

Hitchcock, by his will, bequeathed all his real and personal property to his wife, as trustee, with authority to make public or private sales and conveyances for payment of debts, and constituted her executrix.

On 8 July, 1840, Mrs. Hitchcock, without having taken out letters testamentary on the will, made an absolute sale and conveyance of the lot in question to Cowperthwaite &c., subject to the lease above mentioned.

On 10 July, 1840, an alias fi. fa. issued on the affirmed judgment at law against Henry Hitchcock and Robert D. James for the amount of the debt and ten percent damages, given on affirmance, which came to the hands of the Sheriff of Mobile County, on which he returned that he had levied on the land (now the subject of this action of ejectment) as the property of Henry Hitchcock, pointed out to him by Isaac H. Erwin, executor of Henry Hitchcock, deceased, and that on the first Monday of November, 1840, he had sold the said land to James Erwin, who was the highest bidder, for four thousand five hundred dollars.

On 10 February, 1841, the tenants attorned to Cowperthwaite &c., as landlords.

On 3 March, 1841, Erwin brought this suit against the tenants, who thereupon attorned to him and agreed to hold under him as landlord.

On 8 September, 1841, Cowperthwaite &c., conveyed all their estate and interest in the premises to Dundas and others, the present defendants in error, who, on 22 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 plaintiff took the two following bills of exceptions.

"First Exception. Be it remembered, that at the Spring term, 1843, of this Court, James Dundas, Mordecai D. Lewis, Robert L.

Page 45 U. S. 62

Pittfield, Samuel W. Jones, and Robert Howell, appeared before the court by their counsel and filed the affidavit of H. Barney, which is made part of this bill of exceptions, and moved the court to be admitted to appear and defend the action against the plaintiff by entering into the consent rule and pleading. The tenants in possession, Hurtell, Mansoney, and Griffiths, resisted the said motion and showed cause on oath against the same, which showing, which is on file, is made a part of this bill of exceptions, together with the documents thereto appertaining and referred to, and the said motion was also resisted by the plaintiff. Whereupon, the said motion coming on the be heard, the same was argued, and the hearing of said motion was continued from term to term till at this term, when the said motion was argued, and upon argument had, the said motion of the said applicants, claiming to be landlords, was granted, and the objections of the said plaintiffs, and of the tenants thereto, were overruled. And the said parties, admitted by the court to defend against the will of the said plaintiff and tenants, and the said tenants thereupon, refused to plead. For all which decisions of the court allowing said motion, the plaintiff excepts, and prays this to be sealed as a bill of exceptions, which is done accordingly."

"[Signed] J. McKINLEY [SEAL]"

"Second Exception. Be it remembered that on the trial of this cause, on the issue joined between the said plaintiff and the said James Dundas, Mordecai D. Lewis, Robert L. Pittfield, Samuel W. Jones, and Robert Howell, who have appeared as landlords, and entered into the consent rule and pleaded not guilty, the plaintiff, to maintain the title, on his part, produced and gave in evidence the proceedings had in the Circuit Court of Mobile County, in the State of Alabama, in an action wherein William McGehee, use of &c., was plaintiff, and Henry Hitchcock was defendant, together with the judgment, executions, sheriff's returns &c., copies of all which are hereto annexed, marked A. Also the proceedings of the Supreme Court of Alabama on the affirmance of said judgment, a copy of which is hereto annexed, marked B. Also the record of the proceedings in a chancery suit, wherein the said judgment was enjoined, the injunction &c., a copy of which is herewith, marked C. And the sheriff's deed on the sale of the property in controversy by the Sheriff of Mobile County, under the said judgment, after the injunction was dissolved, a copy of which is herewith, marked D, showing that the same was purchased by James Erwin."

"It further appeared that Henry Hitchcock died on 13 August, 1839, that at and before the time of the rendition of the judgments, he owned in fee simple and was in the possession of the property sued for and sold by the sheriff, and continued so till his

Page 45 U. S. 63

death, except that he executed a mortgage on 14 August, 1838, by which he conveyed the said land to Messrs. Dunlap, Cope, and Cowperthwaite, under whom the defendants claim title."

"Upon the evidence offered by the plaintiff, the court instructed the jury that the sale by the sheriff was irregular and void and that by such purchase at the sheriff's sale, under the said judgments and the executions aforesaid and the injunction proceedings, the sale and conveyance by the sheriff could convey no title to the plaintiff, and that therefore he was not entitled to recover in this action, to which the plaintiff excepts and prays the court to seal this as a bill of exceptions, which is done accordingly."

"[Signed] J. McKINLEY [SEAL]"

Upon these two exceptions the case came up to this Court. chanrobles.com-red

Page 45 U. S. 74


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