Polk v. Pendleton

Bartol, C. J., delivered the opinion of the Court. It appears, by the pleadings and proofs in this case, that Robert W. Pendleton was, in his lifetime, seized in fee of a lot of ground in Baltimore city. In January, 1858, a judgment was recovered against him in the Superior Court of Baltimore City ; he died in 1861. In 1864, the judgment was revived by scire facias issued against his heirs, and judgment having been entered thereon, a writ of fieri facias was issued, under which the lot of ground, mentioned in the proceedings, was sold by the Sheriff” to the appellee, on the 11th day of November, 1864, and conveyed to her by the deed of the Sheriff, dated November 23d, 1864.

Before the death of R. W. Pendleton, to wit, in October, 1858, the lot in question was purchased by the appellant, R. M. Polk, at a tax sale, made for the collection' of taxes in arrear, due by R. W. Pendleton, and was conveyed to him, and Mary, his wife, the present appellants, by the deed of McCubbin, the City Auditor, dated November 5th, 1859. Immediately after this deed was executed, the appellants went into possession of the property, and continued in possession of the same, by their tenants, until the filing of the bill, and the issuing of the injunction in this case. The bill alleges the several proceedings upon the judgment, under which the appellee purchased; and further alleges, that the tax sale to the appellants was void, and that they acquired no valid title thereby, because, of the failure and omission of the City Auditor to comply with the requirements of the tax laws; and the defects and ¹²² irregularities in the proceedings of the Auditor are particularly alleged in the bill. The relief prayed by the bill is, “ that the complainant may have the cloud' upon her title removed; that the sale made by the City Auditor may be declared null and void, and his deed to the appellants be set aside ; and that an injunction be issued to prevent the appellants from attempting to collect the rents of the property, or inter-meddling with the samethere was a prayer also for a. receiver, and for general relief. ' The injunction was granted as prayed, and, by the final decree, the same was made perpetual; the deed from the City Auditor was declaimed null and void, and was set aside, and the appellants were decreed to account with the complainant for the rents received from the property, as well before as after the order for injunction, and the cause was referred to the auditor to take the account, reserving all equities of the parties.

Erom this decree, the present appeal was taken. The appellants offered no testimony in support of their tax title; they simply produced the deed of the City Auditor, under which they claim to have entered upon, and held possession of the property. Their defence rests upon two propositions: ■ 1st. That the title acquired by the appellee, under the Sheriff’s sale, is invalid, because they were not warned, under the scire facias, as terre-tenants. 2d.

That a Court of Equity has no jurisdiction, the remedy of the appellee being at law. 1. Upon the first proposition, we concur in the opinion pronounced by the Judge of the Circuit Court, that the proceedings upon the judgment were regular. The appellants were not terre-tenants, entitled to be warned under the scire facias. Where a sole defendant dies after judgment, it may be revived, and execution had against his lands, by suing ¹²³ out a scire facias against the heirs and terre-tenants, without proceeding against the personal representatives.

See Tessier vs. Wyse, 3 Bland, 40 , and eases cited in note m. Who are terre-tenants within the meaning of the law, whom it is necessary to make parties to the scire facias? All who are in possession, deriving title under the judgment debtor, such as heirs, devisees, or alienees, after the judgment. They are in, as of the estate of the judgment debtor, and before the judgment can be revived, and enforced by execution against the land, so as to divest their title, it is necessary to warn them by the scire facias, so that they may have an opportunity of making their defence, and of claiming contribution from