Scammon v. Swartwout

35 Ill. 326

• Court: Illinois Supreme Court
• Decided: April 15, 1864
• Status: Published

Opinion

Mr. Justice Beeese

delivered the opinion of the Court:

This case is brought to.this court on .the following agreed state of facts: It is agreed that both parties derive title to the demanded premises from Thomas Jenkins, who was the, owner in fee of the premises in 1837, and remained such owner until his death, August 2,1852. That Jenkins died intestate, and left two heirs, Helen Jenkins and Maria Jenkins, but who were not residents of this State; and that no administrator of his estate has been appointed in this State.

It is further admitted that the plaintiff, Cornelius Swartwout, recovered a judgment against said Jenkins, in the Circuit Court of Cook county, March 17th, a. d. 1838, for the sum of $609.95; that execution issued upon this judgment March 19th, 1838, and was returned unsatisfied; that on the 16th of March, 1858, the plaintiff caused to be issued out of said court the following writ of scire facias, to revive said judgment:

To the sheriff of said county, greeting: Whereas, Cornelius Swartwout, to wit, on the seventeenth day of March, a. d. 1838, in our Circuit Court of Cook county, within and for the county of Cook, by the judgment of the same court, recovered against Thomas Jenkins the sum of six hundred and nine dollars and ninety-five cents, for damages which he had sustained by reason of the non-performing certain promises and undertakings, then lately made by the said Thomas Jenkins to the said Cornelius Swartwout, and also, seven dollars and ninety-three cents, for his costs and charges by him about his suit, in that behalf expended; whereof, the said Thomas Jenkins is convicted, as appears to us of record, and although judgment be thereupon given, yet execution of the damages and costs still remaining to be made to the said Cornelius Swartwout; and after the giving of the said judgment, to wit, on the second day of August, a. d. 1852, the said Thomas Jenkins died intestate, in fee simple of certain lands and tenements, to wit: Lot number fifty-seven (57), in the subdivision, made by Peter Temple, of blocks seventy-six and seventy-seven in school section addition to Chicago, according to the recorded plat thereof filed for record in the recorder’s office of Cook county, September 27th, a. n. 1835, in book H, page 149 and 150, including all the right, title and interest of the said Thomas Jenkins in and to said blocks seventy-six and seventy-seven, whereof said Thomas Jenkins died seized, as aforesaid.

Whereof, James H. Bees is now tenant, and also lot six in block one hundred and twenty-nine, school section addition to Chicago, whereof J. Y. Scammon is tenant; also, the southeast quarter of the northeast quarter of section fourteen, township thirty-eight, range thirteen east, in the county of Cook, State of Illinois; and leaving Maria Jenkins and Helen Jenkins his heirs-at-law, and to whom the said lands and tenements aforesaid descended; and whereas, there are no personal representatives of the said Thomas Jenkins, deceased, and the said judgment still remains in full force and effect in no wise set aside, reversed, paid off or satisfied, as we have received information of the said Cornelius Swartwout in our court aforesaid.

Whereof, the said Cornelius Swartwout hath besought us to provide him a proper remedy in this behalf; and we being willing that what is just in this behalf should be done, command you that you make known to the said heirs-at-law of the said Thomas Jenkins, and also to the said tenant of the tenements aforesaid, that they be before our said court on the second Monday of April next, to show, if they have or know why the damages and costs aforesaid ought not to be levied of those lands and tenements according to the force, form and effect of the recovery aforesaid, if it shall seem expedient for him so to do; and further, to do and receive what our said court shall then and there consider of him in this behalf; and have you then and there this writ.

Witness, &c., this 16th day of March, 1858.

WM. L. CHURCH, Clerh.

Which was served on James H. Bees, the defendant therein named, on the 18th of March, 1858, and returned not found as to J. Young Scammon, Maria Jenkins and Helen Jenkins; that an alias writ of scvre facias was issued out of said court, and returned not found as to said J. Young Scammon, Maria Jenkins and Helen Jenkins; and that subsequently, on the 7th day of March, a. d. 1859, the following judgment of revival was entered in said cause:

Scire facias to revive judgment. — This day comes the said plaintiff, by Hoyne, Miller & Lewis his attorneys, and it appearing to the court that, on the 17th of March, A. n. 1838, (of) in the Circuit Court of Cook county, Illinois, the said plaintiff, by the consideration and judgment of said court, recovered against the said Thomas Jenkins the sum of six hundred and nine dollars and ninety-five cents for his damages, which he had sustained by reason of the not performing of certain promises and undertakings then lately made by the said Thomas Jenkins to the said plaintiff. And also, seven dollars and ninety-three cents for his costs and charges by him about his suit, in that behalf expended; whereof the said Thomas Jenkins is convicted, as appears of record in said court.

And it further appearing to the court that after the rendition of said judgment, to wit, on the second day of August, a. d. 1852, the said Thomas Jenkins died intestate, and that he did die seized in fee simple of the following described land and tenements, to wit: lot number fifty-seven (57) in the subdivision, made by Peter Temple of blocks seventy-six and seventy-seven in school section addition to Chicago, according to the recorded plat thereof, filed for record in the recorder’s office of Cook county, September 27th, 1835, in book H, pages 149 and 150, including all the right, title and interest of the said Thomas Jenkins in and to said blocks seventy-six and seventy-seven, whereof the said James H. Pees is now tenant. And that he did die seized of lot six in block one hundred and twenty-nine, school section addition to Chicago, whereof the said J. T. Scammon is now tenant; and also the southeast quarter of the northeast quarter of section fourteen, township thirty-eight,, range thirteen east, in the county of Cook aforesaid; and the said Maria Jenkins and Helen Jenkins are the children and heirs-at-law of the said Thomas J enkins, deceased, and to whom the lands and tenements aforesaid descended; and that there are no personal representatives of the said Thomas J enkins, deceased ; and the said plaintiff having complained to this court that he has received no satisfaction for his said damages and costs; and it appearing to the court that the said judgment still remains. in full force and effect, and in nowise set aside, reversed, paid off or satisfied; and it further appearing to the court that due personal service of process of scire facias issued in this cause having been had on the said defendants, and they being now three times severally, solemnly called in open court, come not, nor does any person for them, but herein they severally make default; which, on motion of said plaintiff’s attorneys, is ordered to be, and the same is taken and entered of record.

Therefore, it is ordered by the court, that the said judgment be, and the same hereby is, revived, as to the aforesaid lands and tenements, and that an execution issue on the same to the sheriff of Oook county, commanding him to levy of and sell the aforesaid lands and tenements, or so much thereof as may be necessary to satisfy the said plaintiff’s aforesaid judgment, interest and costs, as also accruing interest and costs thereon.”

That execution issued upon said judgment Hay 2,1859, and was levied upon said demanded premises, Hay 25th, 1859, and said premises were sold, under said execution, to the plaintiff, June 16th, 1859, and a certificate of such sale was duly filed in the recorder’s office of Cook county; and that subsequently and on the 27th day of October, 1860, a sheriff’s deed of said premises was duly executed to the plaintiff.

It is also agreed that Hartin H. Demmond recovered a judgment, in the Hunicipal Court of the city of Chicago, against said Thomas Jenkins, impleaded with Reynolds & Gilbert, April 17th, 1838, for the sum of $828.00; .that an execution issued upon that judgment, dated January 14th, 1839; that Demmond died in Will county, Illinois, July 18th, 1854, and his widow, Sophia Demmond, was duly appointed executrix of his last will and testament, August 17th, 1854; that she assigned the judgment in favor of her husband, to James H. Rees, April 2, 1858, who made affidavit of Jenkins’ death; that he died intestate, leaving no heirs in this State, and had no executors or administrators of his estate in this State; and prayed for a special execution to issue against this lot in controversy; that execution issued, as prayed for, April 7th, 1858, was levied on the premises in question, April 8th, 1858; sold May 5th, 1858, and a sheriff’s deed made of them to Eees, August 9th, 1859.

That defendant, Scammon, was in possession of the premises at the commencement of this suit, and sets up the deed to Eees as an outstanding title, to defeat a recovery by the plaintiff.

All the foregoing facts appear of record in the Circuit Court of Cook county, and Municipal Court, Eecord Ho. 1017.

Upon the foregoing facts, the court found the issues for the plaintiff, and rendered judgment in his favor. To which decision and finding of the court, the defendant then and there excepted; and said agreed case was filed with the clerk of said Circuit Court, and by him certified to the Supreme Court of this State, as is provided for by law.

The errors assigned are, that the court erred, in finding the issues and rendering judgment for the plaintiff.

That the court erred, in not rendering judgment for the defendant.

It appears by the facts agreed, that both parties claimed the premises in controversy, through one Thomas J enkins,—the plaintiff below, Swartwout, in virtue of certain legal proceedings commencing with a judgment in his favor, in the Cook Circuit Court rendered on the 17th of March, 1838, against Thomas J enkins, on which execution issued March 19th, 1838, and returned unsatisfied, and which culminated in an execution issued on a revival of this judgment against the heirs-at-law of Jenkins, and the terre tenants of the premises, and in a deed from the sheriff to the plaintiff dated October 27th, 1860.

It does not appear to be disputed that the plaintiff acquired a good title to the premises by the sheriff’s deed, unless such title had been previously conveyed by the sheriff to the defendant Eees, under whom his co-defendant Scammon claims, in virtue of the proceedings under the judgment in the Municipal Court of Chicago, rendered in favor of Martin H. Demmond against Thomas Jenkins, on the 17th of April, 1838.

It is to this branch of the case, the defendant’s title, we will confine our view.

It is contended by the counsel defending this title, that the execution under which Bees purchased, was regularly issued and levied upon the premises. If this be so, the defendant’s case is made out. What are the facts and the law, on this point ?

The judgment in favor of Demmond was rendered April 17th, 1838, and execution issued thereon, January 14th, 1839. .Demmond died in Will county on the 18th of July, 1854. The execution under which defendant claims, was issued April 7th, 1858, levied on the demanded premises April 8th, 1858, sold Hay 5th, 1858, and a sheriff’s deed executed to Bees August 9th, 1859.

The first question arising is, was the judgment of Demmond, at the time the alias execution issued, April 7, 1858, a lien upon the premises in controversy. This is to be determined by reference to our statute on judgments and executions. Oh. 57.

The first section of that statute provides, that all and singular the goods and chattels, lands, tenements and real estate of every person against whom any judgment has been obtained in any court of record, for any debt, damages, &c., shall be liable to be sold upon execution to be issued on such judgment. And the said judgment shall be a lien on such lands, &c., from the last day of the term of the court in which it is rendered for the period of seven years, provided that execution be issued at any time within one year on such judgment, and from and after the said seven years, the same shall cease to be a lien on any real estate as against iona fide purchasers, or subsequent incumbrancers by mortgage, judgment or otherwise. Scates’ Comp. 602.

It is by this statute alone that a lien by judgment exists at all on real estate, and, therefore, it must be controlled by the statute. Seven years is the assigned duration of a lien on real estate, by a judgment rendered in a court of record, and it cannot be extended beyond that period. Demmond, then, lost his lien after the expiration of seven years, and so did Swartwout, the plaintiff.

How then do the subsequent proceedings affect the parties ? By the death of Jenkins, the judgment debtor, his real estate descended to his heirs-at-law, out of whom the title could not be divested except in the mode provided by law, by some proceeding to which they should be parties. That mode was pursued by Swartwout, who caused a scire facias to issue, in apt time, against the heirs-at-law of Jenkins, and against the terre tenants of his lands, and a judgment of revivor was obtained against them, and a regular execution and sale under it to the plaintiff.

What was the course pursued by the claimant under the Demmond judgment? The lien was gone, the plaintiff was dead, and letters testamentary had issued to his executrix, who assigned the judgment to Bees. In such cases, what does the statute above cited provide ? By section 40, it is declared the collection of judgments of courts of record shall not be delayed or hindered by the death of the plaintiff or person in whose name the judgment shall exist, but the executor or administrator may cause the letters testamentary or of administration to be recorded in the court in which the judgment exists, after which, execution may issue and proceedings be had thereon in the name of the executor, &e., as such, in the same manner that could or might be done or had, if the judgment exists and remains in the name, &c., of the executor, &c., in his or her capacity as such executor, &c. Section 41 provides that the lien created by law on property shall not abate or cease by reason of the death of any plaintiff, but the same shall survive in favor of the executor, &c., of the testator, whose duty it shall be to have the judgment enforced in manner aforesaid. Scates’ Comp. 610.

It is very manifest from these sections that these provisions are intended to meet cases where the seven years lien has not expired, and only such cases. If it was such a ease, then the party did not proceed according to this statute, to enable an execution to issue in favor of the executrix. Here letters testamentary were not produced to be filed in the court where the judgment was obtained. This is the condition on which she could obtain an execution in her fiduciary character as executrix, if a lien existed.

The appellant, however, insists, that an execution having once issued within a year and a day, an alias could issue at any time thereafter. Reference is made, in support of this position, to several authorities, and among them to the ease of Lampsett v. Whitney, 2 Scam. 441. In that case, as a matter of fact, seven years had not elapsed between the time of the issuing of the alias writ of fieri facias, and the plv/ries writ which was sought to be quashed, and it was not necessary, therefore, to consider the effect of the act of 1825, which fixed the limit to the lien of a judgment on real estate to seven years. Sess. Laws, 1825, p. 151. The cases decided in other States to which reference is made, are presumed to have been decided in the absence of any such statute as ours and of any limitation law. By the fifth section of our limitation act, ch. 66, it is provided, that judgments in a court of record may be revived by scire facias, or an action of debt may be brought thereon, within twenty years next after the date of such judgment and not after. Scates’ Comp. 751. This legislation would seem to imply that an execution cannot, as is contended, be issued at any time. If it could issue at any time, whence the necessity of such a provision ? The presumption is, that after the lapse of twenty years, the judgment has been extinguished, and this is rebutted only by bringing an action of debt, or suing out a writ of scire facias; under either of these proceedings, every legitimate defense could be made, but not under a fi. fa. It would be absurd to suppose the law designed to give to a fi. fa. more vitality than the judgment on which it issued.

The claimant under the assignment of the Demmond judgment, did not, as we have observed, pursue the requirements of section forty, nor could the executrix enforce the judgment in the mode the assignee adopted. Section forty-one provides expressly the judgment shall be enforced by the executor, in the mode pointed out in section forty, by producing for record the letters testamentary in the court wherein the judgment was rendered. Section thirty-seven of this act, was designed to apply to cases where there was an administrator or executor of a deceased debtor, and where there was a subsisting lien. In the absence of these elements, the executrix was bound to resort to a sci. fa. And so of sections forty and forty-one,—they apply to the same kind of judgments the lien whereof had not expired. Such was the case of Durham v. Heaton, 28 Ill. 264.

The execution on the Demmond judgment, and all the proceedings under it, were void and of no effect, and consequently no valid title could grow up out of them.

The premises, on the expiration of the lien, became the property of the heirs-at-law, unaffected by the judgment, of which they could not be deprived by any proceeding to which they were not a party. Turney et al. v. Young, 22 Ill. 253. They were not parties to the proceedings consequent upon the Demmond judgment, and are not bound by them.

The lien of both these judgments having expired in April, 1845, as to bona fide purchasers and subsequent incumbrancers, what priority, if any, existed between them ? In the case Ex parte The Penn Iron Company, 5 Cow. 540, it was held, where several judgments were of more than ten years’ standing, which is the limit of judgment liens in Hew York, the judgments rank in relation to one another, according to their actual priority of date. To the same effect is the case of Rogers v. Dickey, decided by this court, 1 Gilm. 636. The judgment of plaintiff below being first in date, would be entitled to priority, but this point need not be discussed or decided, as in our judgment the execution and proceedings under it through which the defendant claims title are, for the reasons we have given, a nullity.

We see nothing wanting in the proceedings of the plaintiff on his judgment to make them regular.

Judgment afirme!.