Morgan's Lessee v. Davis 2 Md. 9

MAY TERM, 1781.

James Morgan’s Lessee against Richard Davis and others.

EJECTMENT for two tracts of land, the one called Spring Garden, containing 140 acres, the other called The Chase, containing 300 acres, both lying in Baltimore county.

By the bills of exceptions taken in the cause it appears,

1st. That a regular title to the lands in question, was shown to have been in Henry Morgan, deceased, and that the lessor of the plaintiff was heir at law to the said Henr ry Morgan.

That the defendants, to prove there was no title in the lessor of the plaintiff, produced in evidence an exemplification of a judgment and fieri facias, and the proceedings thereon, obtained at September term, 1750, in the Provincial Court, by George Atkinson, surviving executor of Christopher Grindall, against Henry Morgan ; by whjch it appeared, that judgment was obtained for the sum of 436l. 14s. 10d. sterling money, debt, and 1043 lbs. of tobacco, costs. That on the 18th day of June, 1751, a writ of fieri facias issued for the sum of 436/. 14s. 10d. *10sterling money, debt, and 1083 1-4 and 3-5 pounds of tobacco, damages, costs and charges, which writ was endorsed “ to be released on payment of principal, interest and costs.” On which writ the sheriff made the following return:

“ Baltimore County, ss*

“ I hereby certify to the honourable justices within mentioned, that on the 24th day of August, 1751,1 made the sum of 168/. 17s. &d. sterling, of the effects of Henry Morgan, as per schedules will appear, for the use of George Atkinson, as by this writ I am commanded* So answers/

T. SHEREDINE.”

Then follow the schedules, by which it appears, that, the two tracts of land in question, were seized and appraised under the fieri facias.

That the plaintiffs produced exemplifications o£ judgments obtained in the Provincial Court of September term, 1750, by the said George Atkinson, surviving executor of the said Grindall against Thomas Sligh, Thomas Sheredine and William Barney, by which it appeared that judgments had been obtained against them as securities on the same bond, and for the same sum of money, as was obtained against Henry Morgan.

That the plaintiff offered in evidence, a deed of assignment from the said George Atkinson, surviving executor of Christopher Grindall to Thomas Sligh, dated the 6th day of June, 1751, reciting the judgments obtained against Henry Morgan, 'Thomas Sheredine, Thomas Sligh and William Barney, and setting forth, that “ for and in consideration of the sum of 250/. 4s. 6d. sterling, and all the costs of suit in the actions aforesaid to the said George Atkinson, surviving executor as aforesaid, and a certain James Slemaker, the other executor now deceased, by the said Thomas Sligh' in hand paid, the- receipt *11whereof is hereby acknowledged, he the said George Atkins on hath assigned, transferred, and set over, or unto the said Thomas Sligh, his executor, &c. as well the said judgments of 436/. 14s. 10d. sterling, and all costs of suit, and all benefit and advantage of said judgments, or either of them, and all the right, title, interest, advantage, claim and demand whatsoever, of him the said George Atkinson, surviving executor as aforesaid,” &c. By the same deed, George Atkinson appoints the said Thomas Sligh, to be his attorney, and in the name of him the said George Atkinson, for the use of the said Thomas Sbgh, to sue and recover all money and cost3 due on the assigned judgments. And the said Thomas Sligh agrees to indemnify and secure the said Atkinson against all costs and charges which may accrue by reas son of the assignment.

That the defendant produced evidence, that Thomas Sligh, the assignee, was present when the said fieri facias was executed, and had the conduct thereof, and immediately after the execution of the fieri facias entered into the lands in question, and afterwards, on the 14th day of November, obtained a patent for them. That Thomas Sligh, afterwards, on the 21st of November, 1761, executed a deed of conveyance to Vachel Worthington, and that the defendants claim the lands in question, under the said Worthington, by sundry mesne conveyances.

That the plaintiff produced evidence, to prove that a'y die time when the fieri facias was executed, Ilenry Morgan was in Great Britain, and never afterwards returned to Maryland, but died in Great Britain about the year 1755; and that at the time of executing the fieri facias, fames Morgan, the lessor of the plaintiff, was an infant., and did not attain the age of twenty-one until the year 1767.

The defendants, by their counsel, prayed the opinion of the court, and that they would direct the jury, that the, $aid fieri facia,s and proceedings thereon were conclusivo *12evidence, and sufficient to show the title' of the lands in question, to be out of the lessor of the plaintiff, and to bar hirn from a recovery in the ejectment.

fenings, for the defendants.

It is objected, that no title can be made under the fieri facias, for' two reasons.

1st. After Atkinson obtained the judgment against Morgan, and before the execution issued thereon, there was a payment and satisfaction acknowledged on record, and therefore Slights proceedings are erroneous.

2d. That after Atkinson obtained judgment, he assigned all his interest in the judgment to Sligh, and that by the assignment the whole legal interest was transferred' to Sligh, therefore the execution was illegal.

That the records of the several judgments, and the assignment, prove these facts. That the assignment-proves a payment by one of the sureties, and defeats Atkins arts legal interest, and. that he could not sue out exe-.eution in his. own name.

As this suit is brought for the purpose o£ defeating a judgment and execution obtained upwards of forty years-before the institution of the suit, and possession has been held under it, the Court will lean to, support it.

The act of assembly, 1716, c. 16. regulating the proceeding under a fieri facias, is to be coupled with the stat. S Geo. II. c. 7. by which lands are liable to the same process for the satisfaction, of debts, as goods are, and which was extended here by our courts, to make the inhabitant here on an equal footing with the people ' of England. Whatever, therefore, is a, chango of property with respect to goods on the execution of the writ, is so with respect to lands. Seizure under a fieri facias vests the property. %Saund.%7. If a sheriff levies goods on an execution, by virtue of the writ last delivered to him, and makes sale of them, whether the writ was d^ *13Kvered to him on the same day, or a subsequent day, the property of the goods are bound by the sale, and the party cannot seize them by virtue of his execution first delivered; for sales made by a sheriff, ought not to be defeated, for if they are, no man will buy goods levied upon a writ of execution. 1 Raym. 252. 1 Vez. 195.

All the precedents are both for goods and lands, and there is not a single instance to be found, of a fieri facias in the name of the assignee of the judgment. All the proceedings being the same, it would introduce the utmost confusion to set them aside at this time. Precedents are to be regarded. 7 Vin. Abr. 420. Carth. 283, 284. 1 Stra. 95. 2 Mod. 241. 4 Co. 93. And the courts, will construe every thing in favour of judgments. 1 Stra. 310. 3 Burr. 1728. If the proceedings under this execution are set aside, great inconveniences must arise to purchasers.

2d point. If there be any error in these proceedings, it must be matter of law. And if any error on the return of the writ, the party should have moved the court to quash it, or brought a writ of error when the term was over, for then it becoming a record, could only be defeated by record. 1 Bac. Abr. 189. 2 Bac. Abr. 369. Carth. 453. Even a writ of error would not lie here, as it must be brought within twenty years, or five years after disability removed. 10 and 11 Wm. III. c. 12. 2 Bac. Abr. 20. That statute being on limitations, and as we practise under the statute of limitations, it is to be considered as part of the same law, and to be connected with it. 1 Atk. 1157. 3 Burr, 1603.

If it is a matter of equity, arising from the facts which took place after the execution, it should have been shown to this court on the return of the execution, in order that the court might have set it aside, or an audita, querela should have been brought.

*14It is objected, that it appears on the record that Sligh discharged the judgment.

To this it is answered, that if the assignment is to be considered as record, it must have all the effects of a record, and nothing is to be surmised but what appears on the face of it. A court can intend nothing in a special verdict, a, fortiori they can intend nothing in a judicial act, which is not an act of lay gents. The - court may draw a conclusion of law, but not a conclusion of •fact.

It does not appear, that the money Sligh paid was in discharge of either of the judgments. The sums are different. It does not appear that he was security. It is only the common case of one purchasing a judgment and taking an assignment of it. If the money was paid in discharge of a judgment, it does not appear which of the judgments it went to discharge. There were four judgments obtained and four assigned, and the money may be applied to one of the others, as well as to that against Morgan. And it does not appear that these persons were the securities of Morgan. All this is surmise.

The plaintiff’s counsel make a case by travelling out of the record, and then reason from it. But if the case were as they state it, the objections they make are invalid.

They object, that payment entered on record, is a discharge of the judgment.

To this it is answered, that it does not extinguish the judgment; but the court will interfere and prevent the party taking out judgment. If , judgment has once issued, it will stand good until the court set it aside; but if the payment of itself extinguished the judgment, there would be.no necessity for the interference of the court* 3 Bac. Abr. 699. Vin. Abr. tit. Judgment, 607. Cro. Jac. 338. Lazo of Executions, 95.

*15They say, that if the payment was not on record, an audita querela should be sued out. But this is not on record; according, then, to their own showing, they should have sued out an audita querela. 14 Vin. Abr. 171. Gilb. Evid. 92, 93. They are then in this dilemma: If it be a record, they cannot travel out of it; if not a record, an audita querela must be brought.

It is objected, that this payment was made by Sligh either as a stranger or as security. If as a stranger, it discharged the judgment. If as a security, the assignment of the judgment transferred the interest. By this mode of reasoning, no bond, judgment or mortgage, could ever be assigned, without the assignment being a discharge of the debt. What is to become of all the cases which mention assigned judgments to protect purchasers ?

As to this assignment being considered as a sale, would the court on audita querela relieve, if the party alleged that another had paid the judgment and had got an assignment of it l If a man takes a judgment and the same is entered, he cannot consent to vacate it, because it is a records but he may acknowledge satisfaction on. record, and so make the judgment fruitless. 14 Vin.. Abr. 636. pl. 1.

The second objection raised is, that by the assignment Sligh had the legal estate under the act of assembly, under which the assignment vested the judgment in him, and that therefore execution should have issued in his name.

To this it is answered, that the act of assembly was made to provide an additional remedy, and not to deprive a party of an existing one. Show. P. Ca. 64. 2 Stra. 719. 2 Wils. 147. 3 Burr. 1418.

The assignment at common law amounted to a power of attorney to the assignee to recover the debt, and in this assignment there is inserted an express power of attorney. 1 Ray. 683. 3 Fin. 150.

This construction has always been put upon the act of assembly, and is evinced by the constant practice. Con*16 temporanea expositio est optima. And, that this is the true construction, see Show. P. Ca. 64. 2 Stra. 719. 2 Wits. 147. 3 Burr. 1418.

“ But the Court were of opinion, and so directed the jury, that the fieri facias, and proceedings thereon were irregular and void, and no bar to a recovery by the plaintiff’s lessor.” The defendant’s counsel excepted to the opinion of the court.

2. That the defendants then, in addition to the foregoing evidence, to bar the claim of the lessor of the plaintiff, produced in evidence a deed of mortgage from the said Henry Morgan to the said Christopher Grindall, dated the 27th of September, 1746, of negroes and several tracts of land, among which are included the two tracts for which this ejectment was brought, to sécure the payment of 700/. sterling with interest on the 26th of September next ensuing the date of the mortgage.

That the plaintiff also proved, that Henry Morgan was in possession of the lands in question under his title before the execution of the mortgage, and always after-wards continued in possession until the time when the fieri facias was executed. That the said George Atkinson, the surviving executor of Christopher Grindall, was in Maryland in the year 1747 or 1748, and remained in Maryland until some time in the year 1756, when he went to England. That the said Atkinson was in Maryland when the assignment of the judgmeüt was made to Thomas Sligh; and, that neither the said Christopher Grindall, his heirs or executors, or any person claiming under him, ever entered into the lands m question under the said mortgage, or had possession thereof.

That the plaintiff produced an agreement signed by the counsel for the plaintiff and defendants, admitting that a bill in chancery, filed in October, 1747, by George Atkinson, surviving executor of Christopher Grindall, against the said Henry Morgan, to foreclose the mortgage given by Henry Morgan to Christopher Grin *17 dal/, and the answer of Henry Morgan thereto ; and, that the cause was referred to auditors : also, that a re- ' port and account by two of the commissioners directed by the court of chancery to audit and adjust the accounts relating to „the suit for foreclosing the mortgage, and then depending, was made to the court of chancery, which report and account stated a balance of 44 21/. Is. Hi/, sterling due, and no more.

44 The defendants’ counsel objected to the report and account being given in evidence to the jury, to prove any payment of the mortgage. But the Court were of opinion, that the report and account were proper evidence to be given to the jury; and the same were read in evidence to the jury.

441’he defendants also prayed the direction of the court to the jury, that in point of law, payment and satisfaction of the mortgage after the day of payment in the proviso in the said mortgage contained, did not devest the legal estate : and, therefore, if the jury should be of opinion, that the mortgage was not paid and satisfied until after the time limited for the payment of the money secured thereby, that the legal estate in the lands in question was in Christopher Grindall, and is now in his heirs, and that the plaintiff’s lessor was barred from recovering in this ejectment.”

44 But the Court were of opinion, and so directed the jury, that under Ike circumstances of this case, if the jury were of opinion, that full payment was made by Henry Morgan of the principal and interest due on the said mortgage, and the same was received in satisfaction thereof by the said Christopher Grindall, though after the day of payment mentioned in the mortgage, that by such payment and receipt the mortgage was discharged, and the estate of Christopher Grindall defeated in law and equity. And the court were also of opinion, and so directed the jury, that if such payment and satisfac» f.ion was made, that then there was no such subsisting *18title under the mortgage as the defendants could avail themselves of to bar the plaintiff’s recovery in the present ejectment.) 4.nd the court were also of opinion, and so directed the jury, that though a full payment of the money due on the mortgage was not proved, yet that no possession being proved in Christopher Grindall-, or any person or persons who claimed under him in the lands in question, from the time the mortgage was made to the present time, nor any money paid or received on the said mortgage for upwards of tzventy years before the bringing of the suit, that there was no such title in Christopher Grindall, his heirs or executors, as would bar the plaintiff’s recovery in the present ejectment.

“ The court were also of opinion, and so directed the jury, that the length of time the mortgage was executed, the payment and satisfaction appearing upon the audit- or’s report, the suit not being prosecuted, and no entry being made on the lands by Christopher Grindall, or any person who claimed under him, nor any claim set up under the mortgage, were grounds from which the jury might presume a release of the mortgage, if the same was necessary.”

The defendants’ counsel excepted to this opinion.

Hall and Chase, for plaintiff,

Jenings, J. T- Chase and MlMechen, for defendant^,