McHugh v. Martin

Henderson, J., delivered the opinion of the Court. On January 27, 1938 Lewis S. Martin obtained a judgment by confession against W. W. Wolford and Mary E. Wolford, his wife, for the sum of $337.57, with costs and attorneys’ fees, in the Circuit Court for Washington County. Mrs. Wolford died shortly after the entry of the judgment; Mr. Wolford died on September 25, 1938, a resident of West Virginia. Ancillary letters of administration were granted by the Orphans’ Court for Washington County to the executor named in his will, and notice to creditors by publication was duly given. , A warrant to appraise the real estate of the decedent was issued, and the return showed that the decedent owned seven acres of unimproved land in Washington County, of the value of $750, subject to a mortgage of $350, or a net value of $400.

In 1941, the ancillary executor filed a first and final account which showed personal estate of only $14.50. He ¹⁷⁷ paid all expenses and claims filed, including undertaker’s and doctors’ bills in the amount of $345, leaving a balance of $478.41 due to the ancillary executor, which sum wag advanced to him by the devisees. Martin did not file his claim against the estate, or make any other effort to collect the judgment until August 9, 1949 when he applied for a writ of scire facias to renew the judgment against the devisees and ierre-tenants of the land of the decedent. After a demurrer to an amended writ and return had been overruled, pleas were filed and the plaintiff demurred to the pleas.

Upon hearing the court sustained the demurrer and directed judgment of fiat to enter. From that judgment the defendants appeal. It is conceded that the question presented is entirely one of law. The appellants contend that the failure of the plaintiff to file his judgment as a claim against the estate bars the present action.

We find no merit in the contention. A judgment creditor has “a general, statutory lien on the property of his debtor, consisting of the right to have any part of that property he may select, or all of it, sold for the payment of the judgment. And this right follows real property into the hands of any subsequent owner.” Lee v. Keech, 151 Md. 34, 37 , 133 A. 835, 836 , 46 A. L. R. 1488. Cf.

Caltrider v. Caples, 160 Md. 392 , 153 A. 445 , 87 A. L. R. 1500. Before the expiration of twelve years the judgment creditor is entitled to a writ of scire facias to renew the judgment. O’Neill and Company v. Schulze, 177 Md. 64 , 7 A. 2d 263 . Code, Article 26, Sections 20, 21; Poe, Practice (5th ed.) § 585 et seq. “Where the defendant in a judgment dies, a scire facias may be sued out to revive the judgment against the administrator alone to bind the assets in his hands, but where it is desired to [renew] the judgment against the land of the deceased judgment debtor the scire facias should also issue against the heirs and terre-tenants. * * * Assuming that where a judgment debtor dies leaving leasehold property, the judgment may be revived by a scire facias against his next of kin as ierre-tenants withr ¹⁷⁸ out making the administrator a party, the scire facias against them is a proceeding in rem, and the judgment obtained is not a personal judgment against them, but one subjecting the property in their possession, which belonged to the judgment debtor, to the payment of the debt * * Lang v. Wilmer, 131 Md. 215, 225, 226 , 101 A. 706, 709 , 2 A. L. R. 1698, and cases cited. “Where a sole defendant dies after judgment, it may be revived, and execution had against his lands, by suing out. a scire facias against the heirs and terre-tenants, without proceeding against the personal representatives.” Polk v. Pendleton, 31 Md. 118, 123 .

See also Tessier v. Wyse, 3 Bland. 28, 58. The appellants argue that since the claim was provable in the administration proceeding (Code, Article 93, Section 88) and an administrator is not bound to take notice of any claim not so filed (Code, Article 93, Sections 114, 124), the effect is to bar the subsequent enforcement of the judgment. But this does not follow. Although tax claims are provable, failure to file does not bar recovery.

Bonaparte v. State, 63 Md. 465 . Although Section 123 fixes the priority of judgments in distribution of the personal estate it was said in Newcomer v. Beeler, 116 Md. 647, 651 , 82 A. 460 , 461, that it was the “manifest intent of the law that in the payment of judgments by an administrator no regard shall be had for their status or priority as liens upon the realty”. In Zollickoffer v. Seth, 44 Md. 359 , 370 et seq. it was held that failure to file a claim merely