Bower v. Holladay

22 P. 553, 18 Or. 491

Opinions

Thayer, C. J.

The question presented herein for the consideration-of the court is: Whether an execution can be issued upon a judgment after the death of the judgment debtor. Our probate jurisdiction is so extensive, and has been resorted to so generally in the adjustment and settlement of claims against the estates of deceased persons, that no other mode to effect such object has been considered than that pointed out in the probate Act. Hence, the proposition, that an execution against the property of a judgment debtor can be issued after his death upon a judgment recovered during his lifetime, is liable to be startling, as it creates the impression that the officer to whom the writ is issued can séize and sequester the property of the deceased regardless of the authority of the probate court or the order of preference in the payment of claims against the estate as provided by law. No attempt seems to have been made in this State to issue an execution against a deceased person, except in the case of Knott v. Shaw, 5 Or. 482. It was held in that case, as appears from the syllabus, that.the statute gave the State a lien upon all property, real and personal, of a criminal from the time of the commission of the crime; and that when such property had been sold, either by the party convicted, or by his executor or administrator, it was chargeable with the incumbrance in the inverse order of its alienation—that the property last sold was to be first charged. This statement of the law in the case was, in my opinion, altogether too broad, and is liable to be misleading. The latter proposition contained in the statement, to the effect that when such property had been sold by the executor or administrator it was chargeable 'with the incumbrances, cannot in my judgment be maintained. The statute which gives the State a lien in such a case did not intend to allow the State to enforce it except in accordance with its other provisions. And when the party upon whose property the lien attached has died, and the property has gone into the hands of an executor or administrator to be administered upon, its disposition in accordance with the law relating to probate proceedings must be regarded as binding. The State, no more than an individual, having a lien in such a case, can remain passive until the property has been fully administered upon and then assert the lien. The real property sold by the deceased in his lifetime would doubtless be subject to the lien, which could be enforced against it; but thau which went into the hands of the administrator became subject to the jurisdiction and control of the probate court as effectually as the property of a bankrupt is subject to the jurisdiction and control of a court of bankruptcy. In the case of property coming within the jurisdiction of a probate court, a lien upon it must be enforced in accordance with the laws governing the proceedings in such court, otherwise its orders and decrees, although confessedly within its jurisdiction, would be without force. As to the mere question, however, of the right of a judgment creditor to have an execution issued upon a judgment against a deceased person, to enforce the judgment against the estate of the latter, I do not think thére can be any doubt.

The Code, § 281, provides that, “Notwithstanding the death of a party after judgment, execution thereon against his property, or for the delivery of real or personal property, may be issued and executed in the same manner and with the same effect as if he were still living; but such execution shall not issue within six months from the granting of letters testamentary or of administration upon the estate of such party, without leave of the county court or judge thereof;” and subdivision 2 of § 276 of the Code provides that, “If it be issued after the death of the judgment debtor, and be against real or personal property, it shall require the sheriff to satisfy the judgment, with interest, out of any property in the hands of the debtor’s personal representatives, heirs, devisees, legatees, tenants of real property, or trustees as such; ” § 1186 of the Code provides that, ‘1A claim established by judgment or decree against the deceased in his lifetime need not be verified by affidavit, but it is sufficient to present a certified copy of the judgment docket thereof to the executor or administrator for allowance or rejection, as in other cases; but this section is not to be construed to prevent an execution from being issued upon such judgment or decree, as elsewhere provided in this Code.” The last clause in the above section is clearly an affirmance of the rights to issue an execution upon such judgment, although negatively expressed. And § 1185 of the Code, which provides that, “If such debt has been established by judgment or decree against the deceased in his lifetime, such judgment or decree, if the proceeds of the personal property be not sufficient to satisfy it, may, in the discretion of the court or judge thereof, be either satisfied from the proceeds of the sale of the property by the executor or administrator, upon which it is alien, or enforced by execution againsu such property. Such sale by the executor or administrator discharges the property from the lien of the judgment or decree, but the same attaches to the proceeds thereof, after deducting therefrom the expenses of the sale, ” also recognizes the same right.

It is somewhat remarkable that the legislature provided two modes in the same Act, and at the same time, for the enforcement of payment of this character of claims; but it has evidently made such provision, as will be seen by reference to the sections of the Code herein set out, and I see no other alternative than to adopt the rule applied by a majority of the court of appeals in Mount v. Mitchell et al 31 N. Y. 360, where a similar question was considered, which is: “That two statutes shall stand together and both have effect, if possible, for the law does not favor repeals by implication, and are never allowed but where inconsistency and repugnancy are plain and unavoidable; and all acts in pari materia should be taken together as if they were one law. ” Said § 281 seems to have been taken from'§§ 1, 2, and 3, of chapter 295, of the laws of New York, passed in 1850. The New York law, however, was more specific and better guarded. It was as follows: “Notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate or chattel reals, upon which said judgment shall be a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution cannot be issued within a year after the death of the defendant, nor in any case unless upon the permission granted by the surrogate of the county, who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor, which, surrogate may, upon sufficient cause shown, make an order granting permission to issue such execution as aforesaid.” Had § 281 of the Oregon Code been restricted to the issuance of execution against property upon which the judgment was a lien, either at law or in equity, even though it allowed it to be issued without permission from the county court, it would have been much better than it is, and less liable to occasion difficulty and confusion in the administration of the estates of deceased persons. It is very unfortunate that the New York law referred to had not been literally adopted, excepting the necessary changes. The provision could have been carried out substantially in accordance with its terms, but as it is worded in the Oregon statute its meaning must be construed widely different from what its language implies, otherwise several of the sections of the probate Act will necessariálly be nullified. Section 1141 of the Code declares in effect that no sale of the property of an estate is valid unless made by order of the court or judge thereof, as prescribed in title 6 of chapter 15, unless otherwise provided in said chapter; and yet said § 281 permits an execution to be issued upon a judgment recovered in the lifetime of a party, in the same manner and 'with the same effect as if he were still living, at any time after six months from the granting of letters testamentary or of administration upon his estate. Now how can these two sections be harmonized if a sheriff to whom such an execution is delivered is to be permitted to sell the property of the estate by virtue thereof ?

. Again, how can the order of preference in the payment of claims against the estate as provided by § 1183 be maintained in such case? And again, what justice would there be in making the executor- or administrator personally liable to each creditor included in the order determining and prescribing the amount of assets applicable to the claims presented, as provided in § 1190, if the sheriff by virtue of such execution could seize the identical assets and apply them to the payment of a judgment which had never been presented .to the executor or administrator? At common law the judgment in such a case had to be reviewed by a writ of scire facias, which stated that the testator died, having made the defendant his executor, or, in the case of an administrator, the death of the intestate, and the grant of administration, and it called on the defendant to show why the plaintiff could not have execution of the debt or damages, to be levied of the goods and chattels which were of the testator or intestate, at the time of his death, in the defendant’s hands to be administered. Pages 2104, 2105, Williams on Exec. And, by the common law, the executor might jilead that he had no assets, or not enough to satisfy the plaintiff's demand after satisfying other demands having a preference; and the plaintiff either admitted this plea, and then could only take judgment of assets when they should thereafter be received, or he took issue on the plea, and then his judgment still was special as in other cases. Mills v. Thursby, 12 How. Pr. 391. Counsel for the respondent says that two results were effected by section 281 and subdivision 2, section 27G, of the Oregon Code: (1) To brush away the technicalities of the common law and allow the issuance of execution upon the compliance with certain directions as to form; and (2) to place the judgment creditor in the same position and allow him to realize upon his claim in precisely the same manner and with the same effect as if his debtor were still living. I am inclined to regard such a result as far more intolerable than an endurance of the technical rules of common law to which the counsel refers. In Jewett v. Smith, 12 Mass. 308, it was held that a sheriff who, by irtue of an execution, had seized goods which belonged to the judgment debtor, he having died after the issuing of the execution, could not, by virtue thereof, defend against an action of replevin brought against him by the administrator of the judgment debtor, where the estate proved to be insolvent. ‘ ‘To admit this defense, ” said the court, >at page 310 of that case, “would be to defeat the object of the statute for the distribution of insolvent estates, wdiich is in equal distribution of the estate of the deceased among all his creditors.” And we could say with equal cogency that to admit the constructions of the two sections referred to, as claimed by the respondent’s counsel, would not only defeat a similar provision of our Code in regard to the distribution of estates of deceased persons, but would seriously affect several other provisions thereof, which are of .equal importance. These suggestions, I am aware, are wholly gratuitous. That the respondent was entitled to have the execution issued cannot be successfully controverted. The sections of the Code referred to clearly authorize the right, and this court, in Knott v. Shaw, supra, sanctioned it.

We must determine, therefore, that the grounds of error relied on by the appellant are untenable. But it is important that it be understood that our affirmance of the decision of the circuit court appealed from merely determines the right to have an execution issued in such a case requiring the sheriff to satisfy the judgment out of any property in the hands of the debtor’s personal representatives, heirs, etc. In what way the sheriff will be able to accomplish that end must be reserved for consideration until such time as the question shall arise. "Whether the sheriff has the right, under the execution, to seize property, in the hands of the executor, which is being administered upon, and apply it to the payment of the judgment, is not before the court.

[On Re-heakiiig.—Filed October 17, 1889.]