Griswold v. Stewart — 4 Cow. 457

Majority

p. 457

Griswold against Stewart and thirty-one others, heirs and terre-tenants of Walton.

Headnote

A judgment tored aTa term which coenees after the defendant's

made good by and is not good £y relation;

A judgment backtoVperi°d beyond the mat day of the term at which ;t

facias upon ™ent a against th® terre-tenants, they may show by plea ment^wÁ^só entered; for, The rule that one cannot contradict a record applies only to such as are parties or privies to the record, and may bring error; and

The rule that one cannot, to a scire facias, plead any matter which he might have pleaded to the original action, is also limited to parties or privies.

On scire facias against Stewart and others, setting forth a judgment of this Court in favor of the plaintiff, against Walton, for $5866 02 debt and costs, on the 29th October 1 , 1813; that execution thereof still remained to be-made; that Walton was dead; and commanding the sheriff of Columbia county to warn the heirs and tenants of all the lands in his bailiwick, whereof Walton or any other person or persons, in trust for him, were seised on the 29th of October, 1813, or at any time after, to show cause, &c. why the debt and costs should not be made of those lands and ‘ tenements;

_ , Stewart, being warned as one oi the tenants- on the day of the rendition of the judgment, appeared and pleaded two ‘ pleas, one of which, and the only one which it is important to notice, was thus: that the suit, in which the judgment was obtained against Walton, was commenced by bill, he ° ’ ' being an attorney and counsellor of this Court; and that he died before the rendition of the judgment, to wit, on the 5th

p. 458

day of October, 1813 ; and that the judgment was obtained ¿[efault, and. without issuing any writ of scire facias. General demurrer and joinder.

J. Lynch, in support of the demurrer, said the plea is bad,

1. Because it impeaches the validity of a record. (1 Chit. Plead. 354. Hayward v. Ribbans, 4 East, 310. Horsy v. Daniel, 1 Lev. 161. Moses v. Macferlan, 2 Burr. 1007, arguendo. Drake v. Mitchell, 3 East, 251, 258.) According to the record, Walton appeared, and must have been alive. 2. Because it sets up matter of defence which existed prior to the judgment. (M’Farland v. Irwin, 8 John. Rep. 77 ,79. Cook v. Jones, Cowp. 727-8. Bush v. Gower, 2 Str. 1043.)

D. Cady, contra.

The judgment was absolutely void as to every one except parties or privies, and all who could not bring error. (Warter v. Perry & Spring, Cro. Eliz. 199. Proctor v. Johnson, 2 Salk. 600. 1 Ld. Raym. 669, S. C.)

Error could not have been brought by Stewart, the terretenant. (Bac. Abr. Error, (B).

At any rate, the judgment does not relate to a day when Walton was living, and is no lien on land which had ceased to be his, when the judgment was entered. (Heapy v. Parris, 6 T. R. 368.) The lands had descended; and it is only of lands, whereof he was seised at the rendition of the judgment, that execution could be had. (1 R. L. 500, 501, s. 2.)

Curia, per

The rule, that records cannot be impeached in pleading, is founded on the consideration, that the regular and orderly way of trying their validity is by writ of error; and that it might lead to great abuse, to permit the solemn judgments of a Court of record to be incidentally called in question in pleading, when a more direct and satisfactory mode of testing their validity exists. (1 Chit. Pl. 354, and the cases there cited. Green v. Ovington, 16 John. 55 .)

The reason of the rule shows its limitation. It is confined to parties or privies, who alone can bring error. (Bac. Abr. Error, (B) and the cases there cited.) It does not apply to strangers. Thus, in Warter v. Perry Sp Spring, (Cro. Eliz.

p. 459

199,) which was scire facias against hail, they pleaded that the principal was dead the day of the judgment given; and the objection was taken that the plea went to avoid the judgment as being erroneous; but the plea was held good; because the bail could not have a writ of error to reverse the judgment. So in Proctor v. Johnson, (1 Ld. Raym. 669,) the question was, whether a scire facias lay at common law, against the terre-tenants on a judgment in ejectment. It was held that it did; and Holt, C. J. said, “ upon the scire facias the terre-tenants will have notice; and they, being strangers to the judgment, may falsify.” (2 Salk. 600, S. C.) The case of Randall and his wife, (2 Mod. 308,) establishes the same doctrine. That was an' action of debt upon an administration bond; and the defendants pleaded a judgment recovered against the intestate, and nil assets ultra. The plaintiff replied that there was an action against the intestate, but that he died before judgment ; and that, after his death, judgment was obtained, and kept on foot per fraudem. The defendants traversed the fraud, but did not answer the death of the intestate, and the plaintiff demurred. The replication was held good; because, the judgment being manifestly bad, and the plaintiff a stranger to it, he had no other way to avoid it but by plea.

But it is said the plea is bad, because the matter of defence which it sets up existed prior to the judgment, within the cases of M’Farland v. Irwin, ( 8 John. Rep. 77 ;) Cook v. Jones, Cowp. 727;) and Bush v. Gower, (2 Str. 1043.) The rule, that nothing which was a defence to the original action can be pleaded in scire facias, applies only to the original parties or to privies, not strangers. This is. evident from the reason and nature of things.

If, then, the defendant has a right to set up this matter of defence, is it not conclusive, to show the judgment which is sought to be enforced, absolutely void as against the defendant 7 It was a judgment by default, not by confession or verdict, and, therefore, not within the statute of 17 Car. 2, c. 8, (Tidd, 847, 1 R. L. 144, s. 5,) which provides that the death of either party, between verdict and judgment, shall not be alleged for error, so as the judgment be entered

p. 460

within two terms after the verdict; nor within the act of April 15th, 1814, (sess. 37, ch. 800, s. 40,) which has a provision similar to the last in relation to judgments entered by confession, after the death of the defendant; so that they he entered in two terms after the signing a plea of confesr sion .in actions pending during the defendant’s lifetime; nor is ;it within the 10th section of the act concerning executors and administrators, (1 R. L. 312,) which provides that judgment shall not abate by the death of either party, after interlocutory judgment, (8 & 9 W. 3 , c. 11; Tidd, 847;) for the representatives. of the decéased were not brought in and made parties by scire facias, which was necessary by .that- statute.

Nor can the judgment be supported on the ground of relation. It cannot relate hack to a period anterior to the term.as of which it was entered. (Tidd, 849, and the cases there cited.)^[1] It was entered on the' 29th October, 1813, i. e. during the October term, which commenced on the third Monday of that month. Walton died on the 5th, about a fortnight before the term commenced. The judgment is, therefore, void; and the demurrer consequently well taken. If void, it ivas.no lien on the lands of the defendant ; a conclusive objection against an execution upon land in the hands of the terre-tenants.

Judgment for the defendant.

(a) (a) And vid. Bennet v. Davis, 3 Cowen’s.Rep. 68.