The Union Bank of Florida, Plaintiff in Error, vs. The Heirs and Terretenants of Jeremiah Powell, deceased, Defendants in Error, 3 Fla. 175

DOUGLAS, O. J. This is a proceeding by scire facias issued out of the Circuit Court of Leon County against the heirs and terretenants of Jeremiah Powell,, deceased, upon a judgment obtained by the Plaintiff in the Superior Court of Leon County at its November Term, A. D. 1838, against John Westcott, Jr., George W. Fletcher, William S. Paulin, James D. Westcott, Jr., and Jeremiah Powell, for the sum- of $1783 50— 100; &c. Since which time (as appears by the declaration herein filed,-which is in the usual form,) the said Jeremiah Powell has departed this life.

The defendants put in a number of pleas to this-declaration, one only of which, however, is presented for our consideration.- That plea alleges that “ heretofore, to wit, on the 15th day of January, A. D. 1840, in the County of Leon, aforesaid,. Violet Powell, Nathaniel Hamlin, and John W. Adams, duly qualified as executrix and executors of the last will and testament of Jeremiah Powell, deceased,. and letters testamentary were thereupon issued to the said Violet Powell, Nathaniel Hamlin, and John W. Adams, by the Judge' of the County Court of said County of.

Leon, sitting as a- Court of Probate, and that the said scire facias was not sued out by said plaintiff within five years next after the said Violet Powell, Nathaniel Hamlin, and John W. Adams, qualified as executrix and executors of the said last will and testament of the said Jeremiah Powell, as aforesaid, and this,” &c. &c. To this plea, the plaintiff filed a demurrer, to which there was a joinder, and after argument had thereon, it was considered and adjudged by the Court, that the said demurrer be overruled, and that the plaintiff take nothing by his bill, &c.

The first question presented' for our consideration according to the course of the argument at the hearing of this cause, is, whether this plea, as pleaded, is a bar to the action. It is urged in a printed argument (which is now before us,) and which does much credit to the gentleman who prepared it, that the plea is insufficient.

It is based upon the act of November 10th, 1828, Thompson’s Digest, page 444, sec. 3, no. 2, which says, “ no action of debt shall be brought against any executor or administrator, or other person having charge of the estate of a testator or intestate, upon any judgment obtained against his testator or intestate, nor shall any scire facias be issued against any executor or administrator or other person having charge of the estate as aforesaid, to revive such judgment, after the expiration of five years from the qualification of such executor or administrator, or of such other person having charge of the estate, and all such judgments, after the expiration of five years, upon which no proceeding shall have been had, shall be deemed to have been paid and discharged, saving,” &c. “ The pica, (it is insisted) should have stated not only that five years had elapsed from the qualification of said executrix and executors to the suing out of the said scire facias, but that, no proceeding had been had upon said judgment within that time.” The general rule in pleading laid down by Chitty, vol. 1, page 229, is in these words : “ In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defence, and the other party must show it, to exempt himself from the penalty.” The same principle is laid down in 5 Bac.

Ala., title Statute L. 1 East., 646, in note. Rex vs. Pratten, 6 Term Reps., 559. But the case at bar does not seem to come within this rule. The peculiar provision of our statute seems to render it necessary that the plaintiff should, by his declaration, show that some proceedings have been had on the judgment within the five years, and that those proceedings have been unavailable, in part at least; otherwise he will show that he is proceeding on a judgment that has in fact been paid, or that in law is deemed to have been paid and discharged.

For instance, in this very case, the plaintiff sets out in the declaration the record of the judgment in the Court below, rendered on the 9th day of November, A. D., 1838, more than seven years before the commencement of this suit, which was not instituted until more than six years had elapsed after the said Violet Powell, Nathaniel Hamlin and John W. Adams, had been duly qualified as executrix and executors of the last will and testament of the said Jeremiah Powell, deceased.

If any proceedings were had upon that judgment in the meantime, they form a part of the record, and should appear in it; as no such proceedings appear by the record to be had in five years after the qualification of the said executrix and executors, as set forth in the plea we are considering, or before the commencement of this suit, and none are alleged in the declaration to have taken place, it is to be presumed that none were had, and the law, therefore, decrees the judgment to have been paid and satisfied. The words of the statute are — “ Shall be deemed to have been paid and discharged,” saving, &c.

The word “ discharged,” as defined by Webster, in his Dictionary Ed. of 1848, page 339,) means “ paid, released, acquitted, freed from debt, performed, executed.” The plaintiff, therefore, is endeavoring to recover a debt, which, according to his own showing, appears to have no existence. He might have relieved himself from this dilemma, by showing (if the fact were so) that a fieri facias had been issued on this judgment, and returned nulla bona, or only in part satisfied ; or that other proceedings were had, if any had been had; this would have placed him rectus in curia.

As it is, he seems to have no standing in court. This case, too, appears to come within another rule of pleading, viz : that matter which comes more properly from the plaintiff, need not be stated in the plea. Griswold vs. National Ins. Co., 3 Cowen, 96. But it is contended that the law does not absolutely require that scire facias should be sued out against executors or administrators within five years ; it is admitted, however, that it must he done, or some proceeding had upon the judgment, in order to do away the presumption of payment.

Another important question arises in this case — one which the learned counsel for the plaintiff seemed to consider as decisive of the one we have discussed, which is this: “ Could the executrix and executors of Powell have been properly made defendants to this scire facias ?” “ If they could, then it is admitted that the above statute of limitations may have been correctly pleaded in bar of this action.” The argument is, that “ the judgment upon which this scire facias issued, was founded upon a joint contract — it was a joint judgment; and in case of a joint contract, if one of the parties die, his executor or administrator is at law discharged from liability, and the survivors can alone be sued ; and if the executor be sued, he can either plead the survivorship in bar, or give it in evidence under the general issue.” “ If the contracts were several, or joint and several, the executor of the deceased may be sued at law in a separate action, but he cannot be sued jointly with the survivor, because one is to be charged de bonis testatoris, the other de bonis propriis.” And 1st Chitty’s Pleadings, page 50, and note 4, is cited as conclusive of this case; and were it not for several provisions of our statutes, which have an important bearing on this question, we might, perhaps, so consider it, although we do not very clearly perceive the soundness of the distinction contained in the latter proposition — “ because one is to be charged de bonis testaf.orisr and the other de bonis propriis ; for we find it expressly laid down by the law of England, “ that when judgment is against several defendants, and one of them dies before execution, since the charge of the judgment survives as to the personalty, though not as to the realty, the plaintiff may have scire facias framed upon the special matter, viz: against the survivor, to show cause why the plaintiff should not have execution against him of his goods and chattels, and a moiety of his lands, and against the heirs and terretenants of the deceased, to show cause why the plaintiff should not have execution of the moiety of the lands of the deceased, without mentioning goods.” Underhill vs.

Deveraux, 2 Saund. Rep., 72 — citing Panton vs. Hall, which was decided by Lord Holt, in Trin. Term, 1st Will & M., Carthew’s Reps., 105, in which, it seems, this doctrine was first held; and if a scire facias might be framed upon the special matter in such a case, we are at a loss to see why the same thing might not be done, if, by the provisions of the law, the executors or administrators ought to be made parties with the survivors, or the heirs and terretenants of the deceased, or both.

In 2 Tidd’s Pr., 1120, it is said, that “ where there were two or more defendants, and one of them died after judgment, and before execution, it was formerly holden, that the plaintiff was put to his scire facias against the personal representatives of the deceased ; and Yelverton, 208, is cited. In turning to the case of Spencer and Woodward vs.

The Earl of Rutland, which is the case referred to, we find it laid down, per totam curiam, Yelverton Justice, *' that, although the writ of error is but to discharge the plaintiff, yet, if the judgment bo affirmed, the charge will fall on the executor ot him that is dead, and does not survive to the other ; and, therefore, the executor of Woodward must be made party, that he may plead in salvation of the testator’s goods.” Now, although this case seems to have been overruled by Lord Holt, in the case cited from Carthew, yet, we shall see by and by, that it has a bearing upon this case.

And in a note to the case of Trethewy vs. Ackland, and Green vs. same, 2 Saund. Reps., 67, it is said, “ at common law, the plaintiff might take the goods of the survivor in execution by a fieri facias. But under the statute of Westminster 2, he must sue out an elegit against the lands of the survivor, and also of the heir and terretenants of the deceased, and must sue out a scire facias against the survivor, and the heir and terretenants of the deceased.

For it seems that where the lands of several are charged with a debt, it shall not lie wholly upon the survivor, as if a recognizance be acknowledged by several, the lands of all are thereby become chargeable, and execution must be equally made, and if one dies, the creditor must bring a scire facias against his heirs and terretenants and also against the survivors. But it is otherwise, where the lands are not bound, as if two enter into a bond and one dies before judgment, the survivor shall be charged,” citing Lompton vs. Callingwood, 4 Mad., 315.

So, where judgment in debt was had against two, one died, the plain tiff brought scire facias against the survivor only; the defendant pleaded that the other had left lands and an heir upon whom they had descended, and demanded judgment if he should be compelled to answer, without the heir being warned. To which the plaintiff demurred, and judgment was given that the defendant should answer, for the judgment is against the person.

And although by the statute of Westminster 2, which gives th e scire facias and elegit, he may charge the lands and make the judgment real; yet it is at his election to proceed against the personalty if he will. But if he will take out execution upon the real lien, the charge must be equally against both.

This proceeding against the moiety of the lands in the hands of the survivors, and the moiety in the hands of the heirs and terretenants originated under the statute of West., 2, 13 Edward 1st, which gave the scire facias and elegit, and enabled the plaintiff to extend half the lands of each of the parties defendant until the debt vras paid. Our statute gives a more extended remedy, by providing that lands and tenements (as well as) goods and chattels, shall be subject to the payment of debts, and shall be liable to be taken in execution and sold.

Thompson’s Digest, page 355, sec. 2, no. 1 ; and therefore it is contended, as in England, the plaintiff in scire facias was entitled to proceed against half the land, he may here have execution of the whole. This question depends entirely upon the provisions of our own statute. The 18th

chapter of 13 Edward 1st, which gives the elegit, is not in force in this State, because it is inconsistent with divers provisions of the acts of our General Assembly, and especially those which provide for the sale of land on execution. But the 45th chapter, which gives the writ of scire facias, is in force here by virtue of the provisions of the act of November 6, 1829, which adopts the common and statute laws of England which are of a general and not a local nature, with certain exceptions and provisoes. See Thompson’s Digest, page 21, sec. 1, no. 2.

The act of 12th February, 1834, ibid., page 350, 357, sec. 4, no. 1, declares, that “ every judgment at law and decree in equity which shall be entered and pronounced in any of the Courts of this State, shall create a lien and be binding upon the real estate of the defendant or defendants.” How far this provision applies to judgments rendered against executors or administrators, it is not necessary now to determine.

The difference between the effect of a judgment in England under the statute of elegit, and a judgment or decree rendered in this State under our statute, was noticed by the Court in the case of Moseley vs. Edwards, at the last term, 2 Flor. Reps., 434. Under 'the former, the lien did not attach until the writ was issued and levied ; it then had relation hack and cut out all intermediate incum'brances, and remained a lien until the debt was discharged. Our statute, by the natural import of its terms, makes a judgment at law or decree in equity, a lien upon the lands of the debtor, which binds from its rendition.

It is not supposed that the death of a defendant destroys this lien, as remarked in the case of Fillyau and wife vs. Laverty, decided at the present term.

We see no good reason why the death of a defendant should make the plaintiff’s condition any worse than it was before ; his lien continues, but he may lose it by his laches. “ All debts and demands of whatsoever nature against the estate of any testator or intestate, which shall not be exhibited in two years, shall be forever barred ; provided, that the executor or administrator shall, by advertisement to be published once a week for the space of four weeks, in some newspaper printed in this State, give notice to all persons having claims or demands against the es'tate, that their claims and demands will be barred at the expiration of the period aforesaid, unless exhibited within the same.” Thomp.

Dig., page 206, no. 6. A party who claims a debt against an estate by virtue of a judgment, and does not exhibit it to the executor or administrator within that time, renders himself liable to have the bar of non claim set up against him. So, if he lets his judgment stand five years after the qualification of the executors or administrators, or other person having charge of the estate, without any proceedings being had upon it, he renders himself liable to a plea of the statute, and may lose the benefit of his lien. If his lien continues, the question is, how is that right to be enforced in such a case as this ?

Were it not a joint judgment upon a joint contract, the case would be attended with less embarrassment; being such a judgment on such a contract, it is by no means clear of difficulty. Our statute provides that real estate shall be considered assets in the hands of executors and administrators. Duval’s Comp., 186, Thomp. Dig., page 202, sec. 7, no. 2. In England, on .scire facias to heirs and terretenants, the executor and administrator was not made a party, because, according to the ruling of Lord Holt, in Panton vs.

Hall, above cited, which has ever since been followed, the personalty surviving, the remedy to recover It must survive; but the remedy against .the lands could only be against the survivor, and the heirs and terretenants of the deceased, and not against his personal representative. The reporter in that case, says, “ that all the personal charge shall survive against John Hall alone, was agreed on all sides,” (though the authorities in the margin are quite the contrary,) citing Yelv., 208, and other authorities.

There the lands are not assets in the hands of executors and administrators for the payment of'debts, but descended to the heir or eldest son, upon the principle of primogeniture. “ When the Emperors, (says Sir William Blackstone, 2 Commentary, 183,) began to create honorary feuds or titles of nobility, it was found necessary ' (in order to preserve their dignity) to make them impartible, or (as they styled them) feuda individua, and in consequence descendible to the eldest son alone.” Here all “the real estate is to be considered assets in the hands of executors or administrators — assets, sub modo or conditional assets.

Gilchrist, Judge, &c., vs. Fillyau and wife, 2 Flor. Reps., 99. They are assets for the payment of debts in all cases where the personal estate is exhausted, and may 'become so before. The act of 17th February, 1833, sec. 4, Duval Comp., 137, Thomp.

Dig., 203, no. 3, enacts “ that the Judge of ’Probate or officer discharging the functions of ordinary, may Order -and decree a sale (in like manner as to supply the deficiency of personal assets) of the real estate of any deceased person, in preference' 'to a sale of slaves where it may be necessary for the payment of just and lawful debts, or demands against his estate, and when it maybe deemed most beneficial to the heirs, legal representatives or devisees of the estate.” The act of March 4, 1841, Thomp.

Dig., 203, 204, no. 6, declares “ that it shall be lawful for any administrator of any deceased intestate, or the executor of any deceased testator, who has not power by the will of the testator, to sell real estate for the purpose of paying debts, or to make more equal distribution amongst the "heirs or devisees or legatees, to file a petition in the Circuit Court of 'the County in which the letters of administration or letters testamentary were granted, &c., for the sale of the real estate.” This act is set forth, and the views of this Court so fully expressed upon it in Gilchrist, Judge, &c., vs.

Fillyau and wife, above cited, 2 Florida Reps., 96 to 100, that it is deemed unnecessary to enlarge upon it here.

This Court, in that case, held that it did not repeal the act «of 1833, further than changing the mode by which executors and administrators, were enabled to sell real estate for the payment of debts where there is a deficiency of personal assets ; on the contrary, that' the law of 1841, is a virtual affirmance of that of 1883, which asserts that lands shall be assets ; indeed its provisions as there held;, are more extensive, as it enables an executor or administrator, to-sell real estate to make more equal distribution, &c.

It is clearly the duty of the executor or administrator, in case there should be a-failure of personal assets, to make application for the sale of lands' in the mode pointed out. It is not a matter with him (said the Court) of mere discretion ; being assets, they must carry with them the incidents of assets ; the rents and profits of the land constitute a fund for the payment of creditors, and it is obvious that the law intended that, the whole estate should be subject to the payment of debts. 2 Flor. Reps., 97.

Upon the death of the ancestor, the fee vests in the heir' by our statute of descents, but he takes it subject to the debts of the testator or intestate. If the testator or intestate has entered into any written agreement or contract for the conveyance of real estate (in this State) the executor or administrator, (and not the heir) is by statute authorized and empowered to execute such conveyance. Had the law in these respects been the same in England that it is here, we think that the ruling of the Courts there would, in a case like this, have been different.

They hold that where any new person is either to be better or worse by the execution, there must be a scire facias, because he is a stranger, to make him a party to the judgment. As in the case of an executor or administrator, Pennyoir vs. Brace, 1 Salk., 319, 1 Lord Raymond, 244, Holt, Ch. J., held that a capias, or fieri facias, being in the personalty, might survive, and might be sued against the survivors, without a scire facias ; otherwise of an elegit, for there the heir is to be contributary. Ibid — citing 2 Inst., 471. Dyer, 175. Mad. Cases, 138, and 4 Mad. 404.

Now, an executor or administrator should be made a party to a scire facias here, for the same reason, viz : because he is contributary, and he is a new person, a stranger to the judgment, and to be better or worse by the execution ; and it is laid down as a general rule, that, in all cases where the inheritance or freehold is affected, the tenant of the freehold is to be made a party. 8 Bac. Abr. Ed., 1848, page 612.

Yelverton says, (page 209,) “ the executor must be-made a party, that he may plead in salvation of the testator’s goods.” Is it not quite as important that he should have an opportunity to plead in salvation of the testator’s lands, where they fall into his hands as assets ? — assets for the payment of debts, and it may be for distribution? He cannot plead plene administramt, until the real, as well as personal, assets have been exhausted; he is required to pay all the debts of the estate, which are fairly and justly due, and the order in which they are to be paid is prescribed.

First — The necessary funeral expenses; debts due for board and lodging, during-the last sickness of the deceased; next physicians’ and surgeons’ bills, and debts incurred for nursing and other attendance, and for medicines by an apothecary, during the last sickness of the deceased next judgments of record, rendered and docketed in this State in the-life-time of the deceased, and all debts due the State ; and, finally,, all other debts, whether by specialty or otherwise, without distinction of rank. Thomp. Dig., page 206, No. 3 & 4. Duval’s Compilation, 175, 186.

The lands are, therefore, assets in the hands of the executors, for the payment of this very judgment, if it has not been paid, or is not by law deemed to be paid, and is not otherwise barred ; and if the personal assets in their hands cannot be reached in this case, because, as contended, the judgment does not survive as to them — yet it does, by the rules of the English laws;- survive as to the realty ; and these executors, standing in the place of the heirs' in that regard, so far as the debts due by the estate are’concerned,. they should have been made parties to this scire facias,, and had an-opportunity to plead in salvation of these lands.

Whether it was necessary that the heirs and terretenants should have been made parties or not, may be more questionable; it may be proper to remark here, that if these lands can be considered assets in their hands for the payment of this debt, then they are persons, other than executors, in charge of the estate, and are properly made parties to this proceeding ; but if the lands are not assets in their hands for the payment of the debt, then the scire facias will not lie against them.

We have seen, that if “ they have the estate itself,” as is contended, it is subject to the payment of this debt, and the executors hold it as assets for that purpose, and have a right to the rents and profits ; they hold it not only for the payment of this debt in particular, but for the payment of all the debts of the testator, which were due or owing at his death, and not yet paid, or barred by any statute of limitation, and the heirs, so far as they are in charge of it, hold it for the same purpose. In the case of Reynolds, administrator, et al., vs.

Henderson, administrator, 2 Gilman’s Reps., 118, which was a scire facias against the heirs, terretenants and administrator, to enforce the payment of a judgment rendered against the intestate in his life-time, where the question of lien arose as here, service was upon all, and held regular, and we so consider it in this case. In the case of Bell and others, vs.

The Heirs of Robinson, 1st Stewart’s Reps., 193, 195, the Chief Justice, delivering the opinion of the Court, said : “ Our statute of 1812 gives to judgments and decrees a lien on the lands and tenements, <$zc., and directs that the clerk shall frame the execution accordingly.” The Clerks of our Courts, without any such express direction by statute, have framed an execution to meet the provisions of our statutes, which subject lands to levy and sale on execution, and this is in accordance with a rule of law as old as the institution of a Court of Chancery, that where a case arose, and there was no writ to suit it, the Clerks in Chancery should frame one.

We do not, therefore, perceive any insuperable difficulty, were it necessary in such a case as this, again to change the form of the execution, so as to make it reach either the real or personal, or both, in the hands of an executor or administrator. We are not so strongly attached to technical rules, as to be unwilling to overturn them, when they stand in the way of the administration of substantial justice; and our statutes have opened a way for us to do so.

Whether, however, such a change in the process may be necessary, or can be made, we shall leave to be decided when a proper case shall arise, and the question shall be directly presented. From the view we have taken of this case, we consider the plea a good bar to the action; but were it otherwise, we should feel constrained to act in consonance with the rule, that, upon demurrer, the Court will give judgment for the party, who on the whole case appears to be entitled to it, and against the party who committed the first error. Egberts vs. Dibble, 3 McClean’s Reps., 86. Greathouse vs. Dunlap, Ibid, 303.

Rosenberg vs. McKaine, 3 Rich. Reps., 145. Parkhill vs. The Union Bank, 1 Florida Rep., 131. Stephen on Pl., 144. 1 Chitty’s Pl., 707, and authorities there cited in note 1096 ; and for the reasons above stated, adjudge the declaration bad. The judgment of the Court below is, therefore, affirmed, with costs. Per curiam.