Himes v. Jacobs

The opinion of the court was delivered by

Gibson, C. J.

Land being assets for payment of debts, may be seized in execution in the hands of the heir, on a judgment exclusively against the executor who has no occasion to do more than discharge himself of eventual liability in respect of the personal assets; and, therefore, nothing is more common than to pray judgment of the land after the executor has discharged himself on pletie administravit. Surely it would be more just to afford the terretenant who is the party to be affected, an opportunity to contest the debt; and it has never been supposed that the plaintiff may not do so. Where it is dpubtful whether the land has not been discharged in the hands of a purchase^, the reason for affording him an opportunity to shew the fact is not so urgent, because a judgment against the executor, being conclusive only of the existence of the debt; the question of lien may, with equal advantage, be tried in an ejectment by the sheriff’s vendee. Still, where the terre-tenant has actually appeared and had an opportunity to make a full defence, even though he may not have availed himself of it, he is concluded to every intent. In Heller v. Jones, 4 Bin. 61, a younger judgment creditor who had appeared to a scire facias and given notice that he would insist on collusion in the concoction of the original judgment, but had afterwards taken no part at the trial, was precluded from controverting the fairness of the judgment in an ejectment by a purchaser under it: and this on the ground that he had in fact had an opportunity' to try the question and neglected it. The principle of that case is in accordance with a rule, not merely of pleading, but good sense, that whatever is not contested at the proper lime is conceded. Even had the terre-tenants here been called in prematurely, still they availed themselves of the occasion, and had as fair an opportunity to make a full defence, as if the proper time to do so had not been anticipated. They came in to shew that the land was not debtor; and this they were competent to do, either by disproving the debt or nullifying its lien; each of which was open to them as an available ground of defence, and there is no. reason why they should be suffered to use but one and reserve the other. That is the naked point, here, as their right to do so, is evident from the proceedings in the original action. The plaintifls.brought debt on bond against the executors of the obligee, with notice to terre-tenants who had purchased from the heir, and. claimed to.hold the land discharged. The executors confessed judgment; but the terre-tenants went to trial on the plea of payment, and it was found against them. Now I am not going to say what may be given in evidence under that plea. The question of lien was tried or it was not. If it was tried, it will not be pretended that it ought to be tried over again; and if it might have been tried under a proper plea and was not, then the case is within the principle of Heller v. Jones, and the terretenants are concluded just as if the fact had been expressly found against them. That case, however, is by no means so strong in circumstances. There the younger judgment creditor had only given notice of an intended defence, without proceeding further ; here the terre-tenants actually went to trial, and were necessarily bound to bring forward their whole defence: so that notwithstanding the lien was clearly gone, yet having missed the opportunity to. shew it, we are of opinion they are concluded.

Huston, J. and Smith, J. dissented.

Judgment reversed and venire de novo awarded.