Wilkinson v. Allen

11 Ala. 128

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

GOLDTHWAITE, J.

1. We shall waive any consideration here whether the statute on which this proceeding seems to be founded extends to devisees as well as heirs, and confine our examination to the precise questions presented cn the record. It is insisted the plea of the defendants is bad, for the reason that it omits to assert that no lands have come to the possession of the heir — assuming that J. N. Allen is attempted to be charged in that character.. We understand the plea as directly asserting this fact, and something more, where it is said that no lands descended to the party or were devised to him. These assertions would not accord with truth, if the party was possessed of lands in his character of heir or devisee. We think there was no error in overruling the demurrer.

2. The next question is that which arises out of the disposition made of what is called the new assignment as to the executrix. A new assignment sometimes becomes necessary when the allegations of the declaration are so general that two or more causes of action can be given in evidence under it; when the defendant has a sufficient defence as to one of such causes and pleads it, the necessity is imposed on the plaintiff to new assign, as otherwise the plea would be applied to any cause of action covered by the declaration. [Chit. Plead. 659.] But there is no cause whatever to apply the doctrine of new assignments to this cause, for the sci. fa. asserts nothing which authorizes the court, if the defendants said nothing in bar, to have the executrix made a party to the old judgment. The plaintiff, if he wished to have execution against the goods, &c. in her hands to be administered, was authorized to sue out a sci. fa. against her for this purpose ; but to such a proceeding the heir or devisee would certainly be no party. In proceeding under the statute to have execution against the lands devised to the heir, the administrator is required to be made a party, and the reason is said, in Fitzpatrick v. Edgar, 5 Ala. Rep. 499, to be, to give him the opportunity to show the estate is insolvent, in which event, as there shown, the lien of the creditor is lost.

The attempt to new assign, in our judgment was an obvious departure from the previous pleading, and was properly rejected.

3. The bill of exceptions presents a question quite novel and of some intrinsic difficulty. It will be remembered the effort here is not to charge the heir on account of assets descended, but to have execution of lands supposed to be bound by the judgment against the ancestor.' The question is, whether in such a case the creditor is entitled to a general judgment, without showing particular lands of which it is to be levied. The case of Jefferson v. Martin, 2 Saund. 6, embodies in its pleadings and notes all the learning on the subject of the statute of Westminster, which is believed to be the parent of our own in relation to the present matter. The sci. fa. in that case was in general terms, commanding the sheriff to summons the heir of the connusor as well as the terre tenants of his lands at the time of the recognizance.

The return of the sheriff describes the particular lands in the possession of each terre tenant, and asserts there is no heir. It is on this return that the pleadings are formed, and each tenant disputes with the plaintiff his right to have execution as against the lands of which he claims to be tenant. It is said in the notes, the heir is chargeable as a tenant, and not as heir, under this statute, (Notes, 4, 8;) and the tenant whom it is necessary to summon, as the tenant of the free-' hold, is not the mere occupant of the premises. It is, we think, quite evident that the sheriff returns the sci. fa. both as to heirs and terre tenants, at the nomination of the plaintiff, and therefore the return must be considered as the .plaintiff’s suggestion, that certain persons held the possession of the particular lands which he insists are bound by the lien of his judgment or recognizance. The effect given to the return of the sheriff was such, that the courts would not allow it to be contradicted by a general plea of non tenure, though the tenant was allowed to get rid of this effect by alledging a fictitious demise, anterior to the judgment, &c. (Note 19.)

When we apply this apparently antiquated learning to our particular statute, there is no great difficulty in its construction. That provides, that whenever the executor or administrator of any decedent, shall fail to apply to the orphans’ court for the sale of real estate, for the purpose of paying the debts due thereby, the judgment creditor may file a suggestion in the clerk’s office, in which the judgment is rendered, that real estate has descended to the heirs, and that sale of the same, or of some part thereof, is jiecessary for the satisfaction of the judgment, and that said executor, &c. has failed, or refused to make application for the sale thereof, and shall set out the names of the personal representative and heirs, and thereupon may sue out a sci. fa., &c. [Dig. 197, § 27.] Now, although the suggestion and sci. fa. is not required to be specific in the description of the lands against which the execution is sought, we should be inclined to doubt whether a judgment would be regular without some description of the lands; but however this may be, we are satisfied the plaintiff may be put to a specific description of the lands sought to be charged, by a general plea, denying that any lands passed to the heir by descent; the replication to such a plea would, instead of being general, specify the particular lands.

In the present case, the issue seems to be formed without reference to any description whatever, but we do not think the onus'of proof is thereby changed. If lands have descended to the heir, this is an affirmative fact which the plaintiff was required to show. In the nature of things, it was impossible for the other party to show that no lands passed to him by operation of law.

In this view there is no error in the record. Judgment affirmed.