Gwin vs. Latimer and Brown.
An execution issued and tested of a term subsequent to the death of the defendant in the execution, upon a judgment rendered against him in his life time, is void, and a sale under it will communicate no title to the purchaser.
An executor or administrator cannot waive the necessity of a scire facias to revive a suit, so as to authorize the issuance of an execution against a dead man.
This was an appeal in the nature of a writ of error from the circuit court of Carroll county. An action of trover was brought by Gwin against the defendants, for the conversion of a negro man named Jim, to which the de-defendants pleaded not guilty, and issue was taken thereon by the plaintiff', and the cause transferred from the county court of Carroll county by consent of parties *23and the leave of the court, to the circuit court for said tt i . , 7 . , , c • county. Upon the trial oi the cause before a jury in said circuit court, they found a verdict in favor of the defendants; after which the plaintiff moved the court for a new trial; the motion was overruled, and to the opinion of the court overruling the motion for anew trial, the defendant excepted, which hill of exceptions was filed, signed, sealed and enrolled; and from which it appears that the following proceedings and evidence was had before the jury. The plaintiff, in order -to show title to said negro, produced and read the record and proceedings of a suit in the name of the “commissioners of Huntingdon vs. Robert Fleming and others; by which it appeared that a judgment had been rendered on the 13th day of March, 1828, in the court of pleas and quarter sessions for Carroll county, against said Fleming and others, for the sum of $19 40,besides costs; that an execution issued on this judgment, against said Fleming and others, for the judgment and costs, on the 2d of January, 1829, tested of December term 1828, of said court; that the same was levied upon the negro hoy, Jim, in controversy, as the property of Fleming; and after notice given, the negro boy, Jim, was sold by the sheriff of Carroll county, at which sale the plaintiff became the purchaser of said negro, Jim, for'the sum of $30. The plaintiff then read the hill of sale of the sheriff of said county Jo himself for said hoy, which was dated 12th of January, 1829, and regularly registered, by which the sheriff of said county conveyed said negro to said plaintiff. The plaintiff by witnesses proved the negro to be worth about $500, and that Gillespie, Fleming’s administrator, had ordered the issuance of the execution against Fleming as attorney for the commissioners of Huntingdon. The defendants proved that in March, 1828, after the rendition of the judgment against said Fleming and others, said Fleming died. It was admitted that Berry Gillespie and Polly Fleming, administered upon th.e estate of *24said Robert Fleming. The defendant then introduced a 0f a judgment in the name of William Polk against the administrators of said Fleming, deceased; by which it appeared that on the 19th day of April, 1831, William Polk recovered a judgment against the administrator and administratrix of said Robert Fleming, in the county court of Carroll, for the sum of $1244 82, besides, costs; upon which an execution issued on the 14th of July, 1831, and was levied upon Jim, the negro in controversy, as the property of the administrator of said Robert Fleming, deceased. And that said negro was sold on said execution, on the 18th of October, 1831; and purchased by the defendant, Anthony H. Brown, for the sum of four hundred dollars. Said record shows, that defendant, Latimer, was the sheriff of Carroll county, and levied said execution upon said negro, Jim. It was proved that Jim was the property of Robert Fleming, at the time of his death, and had not been sold by any body up to the time of the levy of the execution under which plaintiff claims title. That after plaintiff purchased the negro under the first execution,- he permitted him to remain in the family of Fleming, deceased. The court charged the jury, that although the judgment under which the plaintiff claimed title to the negro, was before the death of Fleming, that as the execution issued and was tested after his death, that it was void and communicated no title to the purchaser under it. The jury found for the defendant, and plaintiff moved for a new trial, and the saíne being refused, excepted to the opinion of the court, and removed his cause, by an appeal in the nature of a writ of error, to this court.
J. M’Kernon and M. Brown, for plaintiff in error.
When a judgment is rendered before the death of defendant, and execution issues within á year and day after-wards, bearing teste before his death, it is regular, and may be sued out against his goods in the hands of his *25executor or administrator. 1 Archbold’s Practice, 256: 2 lb. 80: 6 Term R. 368: 1 B. and P. 571: 2 L. Raym. 849:7 Term R. 20: Preston vs. Surgoine, Peck’s R. 80. The common law requiring the teste of the fi. fa. to be before the death of defendant, means nothing more than that the judgment on which it issues should be before his death; for at common law, and by the English practice, &fi. fa. was a judicial writ, and must bear teste in term time, it issuing only by order of the court on application. 1 Archbold’s Practice, 258: 2 Bacon’s Ab, Execution.
In Tennessee, the law presumes the order of the court that execution shall issue at the time when the judgment is rendered, and the clerk may issue it accordingly at any time. But still the binding force of an execution issued within the year and day, has reference to the judgment, which means the same thing as the teste, by the English practice.
But suppose this position wrong, the next question is, was this execution void, or was it merely voidable or irregular, and therefore might communicate a good title to the purchaser under it.
If an execution issue after a year and day, it is not void, but voidable only by tire party against whom it issues. Jackson de. M’Rea vs. Bartlett, 8 Johns. Rep. 361: 6 Comyn’s Digest, Pleader, 515:' 8 Johns. Rep. 281, and 13 John. Rep. 101 and 102: 3 Cranch, 300 and 306. These cases decide that where a scire facias might regularly be necessary, that if an execution issue without it,-that it is not void but merely voidable, and communicates a good title to the purchaser under it.
The same doctrine is applied to a case similar to the one before tire court, the case of Jackson executor dem. of Brockhurst, et. al. os. Ann Delaney et al. 13 Johns. Rep. 549. In that case a judgment had been rendered against Lord Sterling in his life time; several years after-wards a scire facias issued on said judgment, to revive it *26against his representatives, but was served on the wrong persons, and oí course was void. An execution was issue(j 0n the original judgment, and land sold under it. The question arose whether it communicated a title to the purchaser. The court held that the execution was irregular and might have been set aside by the representatives of Lord Sterling, but still it was not absolutely void, and therefore protected the purchaser.
But another question also arises in this case. Did not the executor in this case, by ordering out the execution, waive the necessity of sci. fa. and was it not therefore binding on him? He was the only one who could have taken advantage of its irregularity. Archbold’s Practice, 209. The object of a scire facias is to give notice to a new party to be charged with execution. The party to be charged may waive the sci. fa. and if he does so, he cannot afterwards take advantage of the want of notice, or treat as void or irregular, proceedings he has consented to. See Roberts-on frauds, Roberts on fraudulent conveyances, 628: 2 Johns. Ch. Rep'. 344. If the executor was bound, third persons could not take advantage of it in this collateral way; particularly when the record of the judgment under which defendants claim, shows that the plea of fully administered was foundin his favor.
T. J. Jennings, for defendant in error.
The only question which the counsel for defendant conceives this record to present, is, whether the charge of the court, that is, that part of it which alone was excepted to and set out in the bill of exceptions, is correct.
There is no principle of law better settled than the following position assumed by this court in the case oí Darby’s lessee vs. Russell and Hick’s, 5 Haywood, 147-8. “If an execution issue against a testator in his life time, or perhaps, if it actually issue after his death, but be tested at a term in his life time, and he die before *27tlie return day, it may be levied on his personalty; but it the execution be tested from a term subsequent to his death, it is wholly void; for the personal estate then belongs to the executors, and cannot be reached by an authority to sell the goods of the testator. The court refer to 3 P. W. 400: Salk. 319: 5 Modern, 376: 6 Term, 368: 2 L. Ray. 769,849, and 2 Strange, 882, 1081: which authorities fully sustain them, so far as I have been able to find the books. This doctrine is too clear upon authority to be argued. See the case of Preston vs. Sur-goine, Peck’s Rep. 72. The execution having been in this case against two living persons, ás well as the dead man, can malte no difference, so far as the property in question is concerned. It is admitted 'on all hands that the boy belonged to Fleming at the time of his death, and there is no pretence that it belonged to either of the others. The bill of sale shows that it was sold as the property of the dead man.
The sale under this execution communicates clearly no more title to plaintiff, than if it had been issued against Fleming alone. It was properly issued to reach the property of the surviving defendants, but could not reach' that in the hands of Fleming’s administrator, without a sci. fa. to make him a party to the transaction. 6 Bac. Abr. sci. fa. C. 4: 7 Mod. 68: 1 Ld. Ray. 244: 1 Salk. 319: 2 Ld. Ray. 808: Yerger’s Rep. 491.
In reply to the argument of plaintiff’s counsel, founded on their understanding of the phrase “teste of an execution,” I have only to say, that teste of a writ means the date or time at which it is witnessed or issued. 1 Black’s Com. side page 179: same book 3, top page 274.
The defendant’s counsel does not deem it necessary to rely upon the evidence of title produced on their part. The plaintiff’s right to recover, depends exclusively upon the question of whether or not he has title to the hegro sued for. ' If he has title at all, it is older in point of time, and therefore better than defendant’s.
*28Green, J.
delivered the opinion of the court.
The execution against Fleming and two others, upon the validity of which the plaintiff's title depends, was issued the 2d day of January, 1829, bearing teste the 2d Monday of December, 182S. The judgment on which it was founded, was rendered at the March term, 1828, of the Carroll county court. Fleming, one of the defendants, died in March, 1828, subsequently to the rendition of the judgment. The execution was levied on the negro in question, and he was sold as the property of Fleming, the plaintiff becoming the purchaser.
The court, among other things not objected to, charged the jury, “that although the judgment, under which the plaintiff claimed title to the' negro, was before the death of Fleming, that as the execution issued, and was tested after his death, that it was void, and communicated no title to the purchaser under it. We are all of opinion, that the circuit judge charged the law correctly. It must be so, both upon reason and- authority. The only reason why it has ever been holden that an execution issued after the death of a parly was valid, and the sale under it good, is because, when the execution is tested at a term before the death of the party, the proceeding is regarded as against an individual m life, the execution bearing date at a time when such was the fact. But when the execution has date at a time after the death, no such presumption can arise. It is then • a proceeding against a dead man, and is wholly void. 5 Haywood Rep. 147: Salk. 319, Peck’s Rep. 72.
It is said in this case the executor waived the necessity of a scire facias.) and therefore the execution, though irregular, is not void. In the-first place it may be answered, that the executor, in ordering out the execution, acted as the attorney of the plaintiff, and not as the execr utor of Fleming. But in second place, a full answer *29is, that the waiver of the scire facias could only he regarded as tending to give validity to a proceeding which would have been regular, had the scire facias been regularly issued and prosecuted. In that case, the execution would have issued against the executor and not against Fleming. If it might lawfully have issued against the executor, having issued against Fleming, the dead man, it is void.
Judgment affirmed.