#### Mary L. Bigelow et al *v.*Conrad Renker et al.

1. Beal estate levied on during the life of the judgment debtor may be sold under the levy after his death without first making his representatives parties to the judgment.

2. The 89th section of the practice act of 1831 (29 Ohio L. 68), did not change the practice in such case.

Motion for leave to file a petition in error to the District ■ Court of Cuyahoga county.

The original action was brought by plaintiffs against de.fendants to recover possession of certain real estate. Both -parties claimed title through Peter P. Perry, who died in*543.testate in the year 1844. The plaintiffs, heirs of Perry, claim by descent. The defendants claim under a judicial -sale.

On the 12th of May, 1840, one Richard Lord recovered a judgment in the Court of Common Pleas of Cuyahoga county •against Peter P. Perry, for $856.88.' On the 27th of April, 1841, a *fieri facias*issued on this judgment, was duly levied upon the land in controversy, and the same was duly appraised. This writ being returned without sale, was followed by divers writs of *venditioni exponas*during the lifetime of the judgment debtor, which were also returned without sale. On the 21st of March, 1845, after the death ■of Perry, a *pluries vendi*was issued, and under this writ, on the 12th of May, 1845, the land was sold to John Newton. This sale was confirmed, and in pursuance thereof, a deed was executed by the sheriff' to the purchaser on the 8th of July, 1845. The defendants have succeeded to* all the rights thus acquired by John Newton, and claim to be «eized under a perfect legal title.

*George M. Tuttle,*for the motion :•

Section 89 of “ an act to regulate the practice of judicial -courts,” passed March 8, 1831, applies to this case and requires that the heir should be made a party to the judgment before sale. ■

The question of the true interpretation of this act resolves itself into two others:

1. To what cases, where the defendant in a judgment was deceased, does the statute apply ?

2. "What is its effect upon those cases to which it does •apply ?

I. The answer to the first of these questions is very explicit. The statute applies to all cases before satisfaction of the judgment. The term satisfaction, as applicable to a judgment, is a legal term, having a legal and technical signification, and as such must be understood here. 1 Kent Com. 462; *Clark*v. *Utica,*18 Barb. 451; Potter’s Dwarris, 273, note 3, citing authorities. In a legal sense, a levy on *544lands is not a satisfaction of a judgment *(Reynolds*v. *Rogers,*5 Ohio, 169, and cases there cited; *Ladd*v. *Blunt,*4 Mass. *402; Patterson*v. *Swan,*9 Serg. & Rawle, 16), unless in a technical sense. Bouvier, tit. Satisfaction.

II. The judgment, then, was not satisfied and is within-the statute cited. What is the effect of that statute upon it? I maintain that the proceedings described are made-necessary to the enforcement of the judgment in all the-cases included by the statute.

The statute only says “ it shall and may be lawful for the plaintiff',” etc. But what is meant by “ may be lawful ?” Is it only a permission imposing no restriction ? May execution be just as well resorted to without these proceedings ?’ If it may, the statu.ee achieves absolutely nothing, except the most useless privilege of laborious preliminaries to the accomplishment of what can just as well be accomplished with none at all.

It is clear that these measures are provisions made for the-benefit of the successors to the judgment debtor’s title, and being given for their benefit, it is to be understood, not that' they are permitted to the judgment creditor, but that they are required of him.

The language of this section is substantially the same in this respect as is the language of a previous statute, that of February 18, 1824, section 82 (Chase, 1288), providing-in regard to judgments upon which execution has not issued for five years.

In the case of *Lytle*v. *The Cincinnati Manufacturing Co.,*4 Ohio, 459, 466, the Supreme Court held that this language was mandatory.

If I am right in the foregoing, the only remaining question is whether a sale in disregard of these provisions is-voidable only or is absolutely void.

And this, it seems to me, is conclusively determined by the consideration that the proceedings are entirely without' party defendants. The -persons in interest are in no way before the court. The title to the property, by operation-of law, has passed in succession. To any previous proceed*545ings the successors to the title arc in no manner parties. When it is required that they be made parties before further proceedings, the proceeding without must be attended with all the infirmities of other cases where jurisdiction of the parties is not acquired.

*R.*P. Ranney, contra :

The judicial sale was legal and valid. The land was levied upon, appraised, and repeatedly advertised for sale in the lifetime of the debtor, and was finally sold upon a *venditioni exponas*after his death, and the sale duly confirmed. And it constitutes no objection to the sale that no proceedings had been taken to revive the judgment. *Lessee of Massie*v. *Long, 2*Ohio, 290; *Taylor*v. *Doe,*13 How. 287; *Mitchell*v. *St. Marent’s Lessee,*4 Wal. 237.

McIlvaine, C. J.

The lands in controversy had been duly taken in execution and appraised as the property of Perry, the judgment debtor, in his lifetime; but were sold under a *venditioni exponas*issued after his death, and without proceedings to make his representatives parties to the judgment. The question is, were the sale so made, the confirmation of the sale and the deed of the sheriff made in pursuance thereof void ? This question has not heretofore been resolved in this state by the court of last resort. In a recent case, however, *Beaumont*v. *Herrick,*24 Ohio St. 445, it was held that a decree for the sale of specific real estate might be executed after the death of the person against whom it was rendered without reviving the judgment as against the heir.

And in a very early case, *Massie’s Heirs*v. *Long, 2*Ohio, 290, it was said to be “ well settled that if the defendant die after execution is sued out and levied, that the execution proceeds as if death had not taken place.” It may be conceded that the above extract from the opinion in that case was *obiter dictum,*the case before the court being one in which the execution was issued and levy made after the death of the'"j udgraent debtor, and the sale was held to be *546void. It nevertheless shows very satisfactorily the opinion of the eminent judges who held the court, upon the point, and also the practice which had obtained in this state at that early period — to wit, 1826.

The practice which thus appears to have been settled at that date, has been conti ntied ever since, and, in the absence of a statutory provision, should not now be condemned except for the most weighty reasons.

Among the strongest reasons urged against it, is this, that upon the death of the judgment debtor his lands descend to the heir; and being no longer thé property of the debtor, but that of the heir, they should not be taken or sold for the debt, until the heir is made a party to the judgment. The weight of this objection is removed by the simple statement, that the heir takes subject to the rights of the creditor; and the right of the creditor to appropriate the specific property to the payment of his judgment wag determined by the levy before descent cast. The action was no longer adversary. The law, having settled the rights of the parties, had seized the -property for the satisfaction of its own judgment. Execution was pending. The *venditioni exponas*was the mere complement of the *fieri facias.*Together they completed the process of execution. The heir succeeded to an estate in the custody of the law, and took it subject to the process of execution al ready in operation.

Again, it is urged that inasmuch as the personal estate •of a deceased debtor must be exhausted, in the course of •administration, before the realty can be subjected to the ■payment of debts, therefore the representatives of the de'ceased debtor should be made parties to the judgment. The answer to this objection is this: Specific liens on the lands of a deceased debtor may be enforced without waiting the time necessary for marshaling the personal assets. Ey the levy, a specific lien was secured; and were it necessary to make the legal representative of the deceased judgment-debtor a party to the judgment-, before sale on execution, it is quite certain that after such proceeding, execution *547might proceed without awaiting the reduction and application of the personal assets.

It is contended, however, that whatever may be the rule in such cases, in the absence of legislation, section 89 of “ an act to regulate the practice of the judicial courts,” passed March 8, 1831 (in force in 1845), required the heir to be made a party to the judgment before a sale on execution. That section provided as follows:

> “ Sec. 89. That if either the plaintiff or defendant, or both, shall have died after final judgment, and before satisfaction thereof, it shall and may be lawful for the plaintiff, or if he shall have died, then for his real or personal representatives, as the case may require, to cause the defendant, or if he shall have died, then his representatives, real or personal, as the case may require, to be made a party to such judgment, by writ or writs of *scire facias,*to be issued, served, and returned in the same manner that a summons may be issued, served, and returned by law; and such judgment may be rendered and execution awarded in the premises as might or ought to be given or awarded against the representatives, real or personal, of a deceased party in other cases.”

We do not understand that this statute required the representatives, real or personal, of a deceased judgment debtor, to be made parties to the judgment in all cases where the death occurred before satisfaction of the j udgment. It authorized such proceeding by *scire facias,*if satisfaction could not otherwise be obtained; as, for instance, where an execution had not been issued before the death of the judgment debtor, or when the execution, having been issued, had not been levied before the death. The old practice, however, of proceeding to sale, where the levy had been made before the death of judgment debtor, was not disturbed.

*Motion overruled.*

Welch, White, Rex, and Gtlmore, JJ., concurred.