William Sigourney & another, Administrators vs. Susanna Stockwell & another, 4 Met. 518

Shaw, C. J. The ground upon which the court decide that this writ of scire facias cannot be maintained is, that it is unne cessary for the purpose of doing justice to the parties. We are strongly inclined to the opinion, that if a writ of scire facias will lie at all, to carry into effect the judgment in question, it would not lie against these defendants. It does not appear that the widow had any interest which would be affected by the judgment. Her right of dower arose from the fact that her husband was seized of the estate during the coverture.

If the plaintiffs hold by force of the judgment, it will not defeat or impair that right. There is no ground, therefore, to maintain it against her. And we should be strongly inclined to think that it could not be maintained against M‘Intire without summoning the heirs of the party against whom the judgment was rendered. But on these points we have not thought it necessary to examine the authorities, in order to decide the case on principles of technical law. It is a scire facias brought to carry into effect a judgment by process of execution.

Various facts are agreed by the parties to be true, if they are competent evidence upon the question, whether this was a valid judgment. But we think we are precluded from considering them, by the settled rule, that on a scire facias it is not competent to plead, or give in evidence, facts, which might have been used by way of defence, in the first suit.

A writ of scire facias is a judicial writ, grounded in whole or in part upon matter of record, grantable by the court, ordinarily as a matter of course, when a judgment has been rendered, but where, from the death of parties or otherwise, execution has not been sued out, and where such execution is necessary, to enable the party, who has a judgment, to obtain the benefit of it. In the present case, the judgment was in the usual form of judgment in a real action, in which the demandants counted on the seizin of their intestate, and a disseizin by the tenant.

For though they declared that their intestate was seized in fee and in mortgage, yet they took judgment generally upon his seizin, and not the conditional judgment given to a mortgagee by statute. On such a judgment, no writ of seizin, and no execution of the writ of seizin by the sheriff, is necessary to give effect to the judgment. If it is a valid judgment, as between the parties, it binds the title as effectually without a writ of seizin, as by its execution. McNeil v. Bright, 4 Mass. 300.

In this respect' such a judgment is distinguishable from that where some further act is necessary to be done to give it complete effect. Thus in judgment of dower, the judgment decides nothing more, than that the plaintiff is entitled to be endowed of certain estate described. Until an assignment under the writ of execution, issued on such judgment, she does not become seized of any specific estate. Hildreth v. Thompson, 16 Mass. 191.

In the present case, it appears that the plaintiffs did sue out two writs of habere facias successively, on this judgment, under the last of which the officer returned that he had put the plaintiffs into possession. It is very obvious that, as legal process, these writs of habere facias were a mere nullity, because they were issued after the death of Stockwell, the defendant.

At the same time, the entry of the plaintiffs, accompanied by the sheriff, was a good entry in pais, to give effect to the judgment, and enable the plaintiffs to count on their own seizin in any new action, if in other respects the judgment was valid and binding against all parties, against whom it might be set up, as proof of title. Without, therefore, intending to express any opinion as to the effect of that judgment, against the defendant, MUntire, or against the heirs of Stockwell, or any other party, we think that this scire facias ought not to be sustained.

If well brought and against the proper parties, of which we have great doubt, it would be an inconvenient remedy, and not well adapted to meet and decide the merits of the controversy between the parties interested, and is therefore not to be sustained, except in a case where there is no other and better remedy. But in this case no •uch reason exists ; because if the judgment was a valid and abiding one, this process is unnecessary. If it was not, the plaintiffs are not entitled to it. Plaintiffs nonsuit.