The material inquiry in this case is this: If a judgment be rendered against two, and one die before execution is issued, can an execution be issued and levied on the lands of the survivor, without a sci. fa., and by a sale thereof, pass the title to the purchaser 1
By the common law, if judgment was rendered against two, but one died before the execution issued, nevertheless the plaintiff might sue out execution, and have it levied on the goods of the survivor. Bingham on Ex. 135; 3 Tidd, 1120; 16 Mass. 193; 3 Bibb, 334; 4 Howard, 58. The execution, however, for the sake of conformity with the record, issued as against both ; but was in law an execution against the survivor only, and his goods alone could be levied on in satisfaction of the judgment. But if the judgment was against a sole defendant, and he died before execution was issued, no execution could be issued, without a scire facias to his representatives.
These are the general rules applicable to executions, so far as they affect the goods and chattels of the defendants. By *593the common law, goods could not be sold at all, for the payment of debts, by any judicial process, and the question we' are examining, must therefore be solved by a proper construction of our statutes, subjecting lands to the payment of judgments, and prescribing the mode by which they shall be sold.
By the act of 1812, (Clay’s Dig. 205) lands are made liable to all judgments and decrees-rendered by any court of record, and the clerks are required to frame their executions accordingly. Under this act, the fi. fa. is issued against the goods and chattels, lands and tenements, and the lands are equally liable, under this process, to be sold; and the sale, and execution of the sheriff’s deed, will pass to the purchaser a fee simple title.
Lands, then, are liable to be sold for the payment of debts Under the same writ, by which goods are sold ; and the land of one defendant may be sold, although no levy or sale is made of the land, of the other; or the lands of both may be sold, as the goods of one, or both of the defendants might be; at the common law. It may well, then, be asked, if lands; in this state, are liable to be sold under execution, by the same writ, by virtue of which, the goods are sold, and the goods of a surviving defendant may be sold without a sci. fa. why deny the right to sell the lands, when both the land and goods are liable, under the same writ, to be sold for the payment of the debt ? If the goods of the survivor can be sold without a sci. fa., his lands, which are placed on the same footing, it would seem might be also.
It is true, that there are to be found decisions to the contrary. In the case of Erwin’s lessees v. Dundas, 4 Howard, 58, it is said, that if one defendant die, although the execution may go against the goods of the surviving defendant, it cannot be legally issued against his lands, unless it has been revived against the heirs of the deceased defendant. Why is this ? Why may not the plaintiff proceed against the land of the survivor, in the same manner that he might against his goods ? Both are equally liable to the judgment: both may be sold by. the same writ, if the other defendant is in life; why not, if he is dead ? No answer, in my opinion, can be given. It is a little strange, that the court did not notice our statute law, in the opinion delivered in the case referred to. *594The land in that case, was sold under our law, and the validity of the sale did not depend, so much on the statute law of Great Britain, as it did on the local law of Alabama; yet the reasoning of the judge is drawn entirely from the statute of Westminster the 2d, Edward the 1st, and the decisions of the English courts upon that statute, without noticing the marked difference between the English statute and our own. Here, we sell, absolutely and by the same process, goods and chattels, lands and tenements; but under the statute of Great Britain, one half the defendant’s land was extended in payment of the judgment. If the judgment was against two, being joint, each defendant had the right to insist, that one half of the land of his co-defendant be extended, in order, that the burthen might be lighter on him. He could say, the charge was joint on the lands of both, and both jointly must bear the burthen. But if one defendant died, before execution issued, the lands descended, and the title vested in the heir. He had the right to show cause (as he had never had a day in court) why the judgment was not a charge on his land, and therefore a notice or scire facias mtist issue to him before his lands could be taken in execution. The lands of the surviving defendant being chargeable jointly with the lands of the deceased defendant, and he having the right to insist, that this charge should be equally divided between them, the plaintiff in execution could not extend his land without a sci. fa. If, therefore, the goods of the survivor were not sufficient to satisfy the debt, the plaintiff could not proceed by his writ of elegit, neither against the heir of the deceased defendant, because he was entitled to have a day in court; or against the surviving defendant, because he had the right to show that the land, descended to the heir of his co-defendant, was jointly liable with his own, to pay and satisfy the charge. Hence arose the necessity of a sci. fa. against the surviving defendant, before his lands could be taken in execution. But under our statutes, judgments are joint and several, and executions may be levied on the lands of one of the defendants alone, without levy on the lands of the other, as, at the common law, they could be levied on the goods of one alone, notwithstanding the other had goods liable to the execution. The decisions, therefore, of the English courts, *595under their statute, ought not to be adopted here, as ours is entirely different in its legal consequences, and places lands on the same footing with personal property, in reference to the payment of judgments; that is, they may be absolutely-sold, under the same process, and a perfect title passed to the purchaser: and the land of one may be sold, though no levy is made on that of the other. It thus being the right of the plaintiff to sell the land of one, without reference to the other, as, at common law, he could sell the goods of one, without making any levy on the goods of the other. I cannot, myself, perceive any reason for a sci. fa. against a surviving. defendant, for it would answer no purpose, and would not benefit him. The case of Erwin’s lessees v. B’k U. S., before referred to, is in accordance with the case of Woodcock v. Bennet, 1 Cowen. That case, however, if good law at all opt this point, must depend on the statute law of New York, or on the statute of Westminster 2d, if it has been adopted in that state. The whole reasoning of the court is drawn from the English decisions made in reference to this statute, and which, of course, would be inapplicable to ours, differing from it, as it does, so widely in its terms. It is supposed, however, that we have heretofore adopted the rule of construction that has obtained in England, and seems to be recognized in New York. It is true, we have held, that the land of a deceased defendant could not be sold, under execution issuing after his death, without sci. fa. to his heirs,. This is expressly required by the act of 1828. Clay’s Dig. 197. But the question here raised, has never before been made in this court, and we feel bound to decide it upon our own statutes, and we believe, that a just construction of them warrants us .in saying, that the lands of-a survivor may be sold under .execution issued after the death of a co-defendant, without a scire facias.
2. The other question presented by the record, that the plaintiff was incapable of purchasing real estate, is fully answered by the joint resolution of the general assembly, of the 3bfet December, 1842, by which the bank was authorized to .purchase under executions in its own favor. We can see no /error in the record, and the judgment must be affirmed.