
    WILLIAM H. BEARD, Plaintiff and Appellant, v. JAMES P. SINNOTT, Defendant and Respondent.
    Before Monell, Ch. J., Sedgwick and Speir, JJ.
    
      Decided January 11, 1875.
    I. EXECUTION ISSUED AFTER, UPON JUDGMENT RENDERED BEFORE, DEATH OF DEPENDANT.
    1. Void. It and all proceedings are void as respects beal estate.
    1. Pu/rchaser of real estate on sale under, takes no tifia
    
    2. Judgment, satisfaction of, how pbocubed in such case.
    1. The judgment must be revived by the proceeding substituted by the Code in the place of the writ of scire facias.
    
    2. Execution must be issued on the judgment in such proceeding.
    
    3. Leave to issue execution must be obtained from the proper Surrogate, under chapter 295 of the laws of 1850.
    H. STATUTORY LAW. CUMULATIVE REMEDIES OR RESTRAINT.
    1. Act of 1850, ckapteb 295, effect of.
    1. It does not repeal, or in any manner affect, the provisions of the Code as to the necessity for, and mode of, reviving the judgment, except so far as it reduces the period during which no proceedings can he had to one year after the death.
    2. It is cumulative, and adds another restraint to those already existing, upon the collection of a judgment out of the property of a deceased judgment debtor.
    IH. CONSTITUTIONAL LAW.
    1. Depbiving one of his pbopebty without due pbocess of daw.
    
      a. Chapter 295 of the act of 1850 is void, as contravening this constitutional provision.
    It authorizes an ex parte proceeding to deprive a person of his property.
    Appeal from a judgment in favor- of defendant.
    The action was to recover the possession of a lot of land in the city of New York. It was tried by a referee, whose findings of fact comprise all the statement, of facts necessary.
    He found that on October 3, 1851, one Oliver Johnston was the owner in fee of the premises. That on "the same day a judgment was recovered against Johnston, upon which an execution was issued and returned wholly unsatisfied.
    That Johnston, who was an inhabitant of the city of Hew York, died intestate, in October, 1852, and letters of administration were issued upon his estate by the surrogate of said city.
    That, in September, 1861, the assignee of the judgment petitioned the surrogate for leave to issue execution upon the judgment ; and that such surrogate, upon sufficient, cause shown, granted the permission.
    That in pursuance of such permission, and of the statute in such case made and provided, an execution was issued upon the judgment, under which the sheriff sold all the right, title, and interest which Johnston had in the lot, on October 3, 1851, or at any time thereafter.
    That the sheriff executed a deed to one Harkins, who afterwards mortgaged the lot to one Johnston, which mortgage was foreclosed, and the lot sold and conveyed to said Johnston, who subsequently conveyed it to the defendant in this action.
    The referee further found that the plaintiff is heir-at-law to the extent of one-fourth of the estate of Johnston, the deceased judgment debtor.
    That there was no proof before him, the referee, that notice of the presentment of the petition to the surrogate, nor of the proceedings thereupon, was given either to the plaintiff or to any other person.
    Upon these facts, the referee decided that the sale by the sheriff was valid, and operated to convey a good title to the purchaser, and that the defendant, by the conveyance to him, became the owner of the* premises in fee simple. •
    Judgment was entered for the defendant, and the plaintiff appealed.
    
      John Townshend, attorney, and of counsel for appellant,
    urged, among other things ;—I. By the common law goods were bound from the teste of the execution (Allen on Sheriffs, p. 140); and, therefore, an-execution tested of a day prior to the death of a judgment debtor may be enforced as to personalty, after the* death of the debtor. But “ lands can not be sold bn an execution issued after the death of a defendant, although the execution bears teste as of a day previous-to the death of the debtor “ all the cases to be found in the books in which the exception is stated, relate to>* the common law writ of ft,, fa., which goes only against the goods ” (Stymets v. Brooks, 10 Wend. 207; Crocker on Sheriffs, § 404, 1st ed. ; Allen on Sheriffs, 190, ed. 1845; 1 Paine & Duer’s Pr. 66).
    II. “At common law no execution could legally issue on a judgment after the death of either of the parties . . . until the judgment was revived. . . . As to the effect of execution and sale, where the execution has issued without revival after the death of a party, there is a difference of opinion. In some of the-States they are holden to be absolutely void ; in others-only voidable. The weight of authority is that they are void ” (Rorer on Judicial Sales, p. 237, § 667). (a) In New York such sales are held void (Campbell v. Rawden, 19 Barb. 498, 18 N. Y. 421 ; Stymets v. Brooks, 10 Wend. 207, 212). (b) There is nothing in either Jackson v. Delancy, 13 Johns. 537, or Jackson v. Robins, 16 Id. 537, in conflict wflth Woodcock v. Bennett. In 13 Johns, the regularity of the scirefacias was not a point in issue. In 16 Johns, the -chancellor makes an adverse dictum on the authority of-Heistner v. Fortner, (2 Binncy, 40); but foEows it with the remark, “I need not pursue this point (i. e., the necessity ot' a sci.fa.) for a sci.fa. did actually issue in this case.” (c) The case of Heistner v. Fortner, cited by the chancellor, only decided that a judgment after one nihil upon a scire facias post annum etdiem, although irregular, can not be questioned in a collateral proceeding. (d) The United States supreme court held such a sale void (Erwins v. Dundas, 4 How. U. S. 58). (e) In Illinois such sales are held void (Brown v. Parker, 15 Ill. 307). (f) Such sales are also held void in Alabama, North Carolina, Tennessee, Indiana (Lucas v. Doe, 4 Ala. N. S. 679 ; Abercrombie v. Hall, 6 Id. 657 ; State v. Pool, 6 Ire. 288 ; State v. Michael, 8 Blackf. 436; Gwynn v. Latimer, 4 Yerg. 22). (g) In New Jersey -and Pennsylvania, such a sale is held not to be void (Den v. Hilman, 2 Halst. 180; Speer v. Sample, 4 Watts. 374). As to those cases it must be observed: in Den y. Hilman, the execution was tested before the -death of the debtor ; and Speer v. Sample is based on the peculiar practice of the Pennsylvania courts, and on the leaning in those courts to uphold judicial sales. Of both cases, it must be observed, that the reasoning -is not so reconcilable with received legal principles as •is the reasoning in the cases reaching the opposite conclusión. (7¿) In New Hampshire, there is but a dictum that an execution issued after the death of a judgment debtor is an irregularity only and not a nullity (Butler v. Haynes, 3 N. H. 21).
    III. The Code (§ 376) prescribes a substitute for a scire facias. Wherever it had theretofore been necessary to issue a scire f ocias, it is now necessary either to resort to that proceeding, or to a proceeding under .section 376 of the Code. The law of 1850, eh. 225, provides an additional preliminary to the issuance of an execution against the estate of a deceased judgment debtor, •but has riot dispensed with the proceedings provided by section 376 of the Code (Marine Bank of Chicago v. Van Brunt, 49 N. Y. 160; Wood v. Morehouse, 45 Id. 368).
    IY. Under the revised statutes where judgment is. obtained, and the defendant died before execution issued, a scire facias will not lie against the heirs and terre tenants until after a scire facias has been issued against the personal representatives of the deceased, and returned nihil (1 Paine <& Duer Pr. 69). This practice is retained by the Code, which provides (§ 376) that the personal representatives may be summoned to. show causé why the judgment should not be enforced within one year, and the heirs and tenants may be summoned after three years from grant of letters testamentary or of administration.
    Y. The question is not altogether whether or not execution was void or voidable, but whether the rights-of one not a party to the judgment can be bound by an execution issued after the death of the judgment debtor,, without notice to the party sought to be affected. Hakd, J......It is said that an execution without a scire facias is not void, but voidablé only by-writ of error, and can not be questioned in a collateral suit, and till reversed is a good justification. But there is another rule, that where a person not a party to-the record derives a benefit by, or becomes chargeable to the execution of it, there must be a scire facias to. make him a party to the judgment (Penoyer v. Bruce, 1 Salk. 319 ; 2 Saund. R. 6, n. 1; Id. 72, n. 4 ; Woodcock v. Bennett, 1 Cow. 611). And where judgment is. revived against real estate by writ of scire facias by our statute, the right of any person therein not made a. party to the writ, shall not be impaired or affected by such revival (Campbell v. Rawdon, 19 Barb. 498).
    Yl. The Revised Statutes provide, that “ where-any judgment or recovery shall be revived against any real estate by writ of scire facias, the right of any person therein, not made a party to such suit, shall not be-impaired or affected by such revival, unless he claim title from the tenant of such real estate, who was duly made a party thereto” (2 Rev. Stat. 577, § 5). This provision is new. Reviser’s Reports and ¡Notes (3 Rev. Stat. 2nd edit. 786). Opinion of Allbx J., in Campbell v. Rawdon, printed in the points, volume V., of' the Court of Appeals Cases, (a) The legislature passing this statute intended that execution should not be had upon the lands of a deceased judgment debtor without a scire facias, to which all persons having an interest and intended to be affected thereby must be made parties by a service of the writ upon them. Com-stock, J. (Campbell v. Rawdon, 18 N. Y. 421).
    VII. The case of The Bank of Genesee v. Spencer (18 N. Y. 150) is not in point. There one of several defendants died after judgment, and the execution was against the survivors. In such a case no scire faciaswas necessary. For “where there are two or more plaintiffs or defendants in a personal action, and one or more of them die after judgment, execution may be had within the two years for or against the survivors, without a scire facias, but the execution in such a ease should be taken out in the joint names of all the plaintiffs or defendants, otherwise it will not be warranted by the judgment” (1 Paine & Duer Pr. 66; citing numerous authorities), (a) Bank of Genesee v. Spencer only decides that an execution issued after the time limited for issuing without leave, the parties being alive, is an irregularity merely. This is conceded by the appellant.
    
      James P. Sinnott, in person, and Wm. W. Niles, of counsel for respondent,
    submitted an elaborate .brief, from which the following points are selected ;—I. Section 295 of act of 1850, authorizes a sale of the real estate of a .deceased judgment debtor on which the judgment was a lien at his death, upon an.. •execution issued on said judgment, without any further proceedings, provided permission to issue the execution is first obtained from the surrogate. In this case such permission was obtained. The surrogate acquired jurisdiction to grant the leave upon the presentation of the petition. He is presumed to know the status of the estate, and to be able to judge of the sufficiency of the cause to be shown, in any particular case. “ The jurisdiction of the surrogate,” says the learned judge, in the Marine Bank of Chicago v. Van Brunt, “was improperly exercised ;” an expression which admits its existence; for no one can improperly or otherwise exercise a power which he has not already acquired. The petition presented to the surrogate showed, prima facie, sufficient cause for the issue of the execution. It showed the judgment, the previous execution returned unsatisfied, the lien—for it must be borne in mind that the existence of the lien, at the time of the application to the. surrogate is unquestionable, that application having been made within the ten years,— the inhabitancy of the judgment debtor at the time of his decease, and the fact that the judgment remained unpaid. “ When the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process,” says Jewitt, C. J., “then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose” (Staples v. Fairchild, 3 N. Y. 46 ; Skinnion v. Kelley, 18 N. Y. 356 ; Van Alstyne v. Erwine, 11 N. Y. 340; Rusher v. Sherman, 28 Barb. 417; Miller v. Brinkerhoff, 4 Den. 119; Den v. Turner, 5 Wheat. 541; Buf. and St. Line R. R. Co. v. Supervisors of Erie, 48 N. Y. 100). Ho order which a court is empowered, under any circumstances, to make, can be treated as a nullity, merely becanse it was made improvidently, or in a manner not warranted by law •or the previous state of the case. The only question in such case is,—had the court or tribunal the power, under any circumstances, to make the order or perform the act? (Talmane v. McCarthy, 11 Wis. 406 ; Grignon’s Lessee v. Astor, 2 How. (U. S.) 340; Harvey v. Tyler, 2 Wall. 343; Voorhies v. Bank of the United States, 10 Pet. 449 ; Cooper v. Reynolds, 10 Wall. 309). In considering this question, we must bear in mind that the proceedings before the surrogate were not intended to obtain personal judgments against any person. The judgment had been pronounced, and had become a lien on the land. The proceedings were merely to enforce the lien against that land. It was a quasi proceeding in rein. It is true that the legal title to these lands had devolved upon the heirs ; but heirs are not bona fide purchasers. They take lands cum onere—charged with the payment of judgments, and subject to be sold to satisfy the same. How, the method of satisfying a judgment is by execution, and that execution directs the sheriff to satisfy the judgment out of the property, in whose hands soever the same may be. If the judgment debtor had, in his lifetime, given a deed of this property, the legal title to it would have rested completely in the grantee, justas completely as it devolved upon his heirs by his death. Yet the creditor would not be bound to notify or summon that grantee, before subjecting the property by execution to pay a judgment which remained a lien upon it.
    II. Counsel for appellant insists that the heirs must be summoned under section 376 of the Code. To sustain this he cites Wood v. Morehouse (45 N. Y. 368), and Marine Bank of Chicago v. Van Brunt (49 N. Y. 160). In the case of the Marine Bank of Chicago v. Van Brunt, the order to show cause upon which the execution was set aside was made in the original suit; and it required the plaintiff, and also the assignee of the judgment sought to be enforced, to show cause why the execution therein, and all proceedings subsequent to 
      the judgment “ should not be set aside on the ground of irregularity,” because the execution was issued without any proper order of the surrogate, and without any notice to the representatives of the defendant, &c. The motion was granted, and an order made, that' the execution issued, as stated, to the Sheriff, “ be and the same is hereby set aside as irregular.” The assignee of the judgment appealed to the general term, and to the Court of Appeals, in succession, but the order was affirmed by each tribunal.
    The learned .judge who delivered the opinion concludes with these words: “Wood v. Morehouse (45 N. Y. 368), Alden v. Clark (11 How. Pr. 209), and Frink v. Morrison (13 Abb. Pr. 80), presented the same question as that before us, and were decided in accordance with the views already expressed.’ ’ So that the Court off Appeals intended, by this decision, to go no further than the Supreme Court had already done, and it commends, to us the cases of Frink v. Morrison and Alden v. Clark.
    The cases so commended and followed are, in our judgment, and, as we submit, irreconcilable with the view contended for by the appellant here. Although the learned Judge also mentions the case of Woody. Morehouse, the reference to the latter is not strictly accurate, because that case arose upon an execution issued in 1848, and before the passage of the act off 1850. Besides, the point decided in that case was, that an execution issued in the life-time of the judgment, debtor might be executed after his death, and a sale under such an execution was upheld. The defendant here has no cause to quarrel with that view of the law.
    Judge Allen, in the Van Brunt case, says : “ The act of 1850 is not in conflict with the provisions (using: the plural) of the Code, or inconsistent with the remedy given by it. It is cumulative, and adds another restraint to those already existing” (40 N. Y. 163).
    That the learned Judge did not, by this language, mean that heirs, &c., must in all cases of the death of their ancestor with judgments standing against him, be summoned, is quite obvious on a comparison of section 376, with the act of 1850. Section 376 allows the summons to be issued only after the expiration of three years from the time of granting letters testamentary or of administration.
    The act of 1850 allows an execution to issue at any time after the expiration of one year from the death, and notwithstanding that no letters testamentary or of administration have been issued.
    The act of 1850 is only “cumulative” (which in. this connection is a very infelicitous expression), in the sense that it provides for the permission of'the surrogate being given before execution issued, whereas, previously the whole matter rested with the court of law alone. It is in that sense that it is “an additional restraint to those already existing,” and in no other sense.
    This will be made clearly apparent by referring to-the case of Alden «. Clark, cited by the Judge with approval, and decided by a court of which he was a. member.
    The two provisions of law are not “in conflict,” for the very simple reason that each has its own sphere of operation.
    III. Even under the old system, when the formal proceedings by scire facias were especially required by law, the better opinion is, that an execution issued without it, after the death of the judgment debtor, would not be void, but only voidable. For this we have the great authority of Chancellor Kest, and his views upon that point have never been overruled in this State, although in one case (1 Cow. 711) a contrary opinion has been expressed (Jackson v. Delancy, 13 John. 537; Jackson v. Robins 16 Id. 537; 3 Caines, 270; 8 John. 365 ; Heister v. Fortner, 2 Binney, 40; Bennett v. Hamill, 2 Scole & Lefroy, 566). Again it is said that the word voidable implies that there is somebody who can avoid the process. But if real estate descends to an heir, charged by matter of public record with the lien of a judgment, and it is proposed to sell it under a voidable process, is not the heir capable, and is not his plain duty to prevent the execution of that process, or to set aside and avoid it afterwards? “Every person,” says Mullir, J., “whose rights are injuriously affected by a judgment, or proceedings under it, has the right to move the court to set aside or amend them, although he is not a party to the action ” (Glould v. Mortimer, 16 Abb. Pr. N. S. 448).
    IY. But whatever may be the rule under the former-practice, I insist that, under the act of 1850, it is impossible to maintain the invalidity of this process on the technical and artificial grounds .urged against executions issued without a scire facias. Some effect must be given to the act above mentioned. The learned judge, in Alden v. Clark, says “it was intended to provide a more simple and expeditious mode than previously existed for the enforcement of judgment liens against the property of deceased judgment debtor. ' The act itself says that, notwithstanding the death, the execution may be issued in the same manner and with the ■same effect as if the judgment debtor were still living,” provided only that the permission of the surrogate be •obtained. The learned judge, above referred to, refused costs because the practice was entirely unsettled. How much so this is, is well illustrated by the fact that twelve years after this opinion was rendered, the Broome county general term, consisting of three very eminent judges, held that an application to the court was not necessary at all, and that the order of the surrogate was sufficient to authorize the execution. And still another year later, Mr. Justice Mullir held the same thing, and dissented from the case of Alden y, Clark. Logical-minded men found it hard to nullify the plain language of the act of 150 (Vide:—Wilgus v. Bloodgood, 33 How. Pr., 289 ; Flanagan v. Tinin, 37 How. Pr., 130). It certainly will be a great hardship if, for an alleged mistake in a matter of practice so unsettled, that the costs of a motion were refused, and which accorded with the views of some of the most eminent jurists of this state—and it will be seen by the case that the proceedings here were conducted by the present Mr. Justice Gilbert—a man’s estate should be confiscated. The courts take judicial notice of an unsettled condition of the law, and resolve all possible doubts in favor of parties acquiring property in reliance upon their decisions for the time being (Robb v. Irwin, 15 Ohio, 689; Snevely v. Lowe, 18 Id. 368).
    V. But this case is distinguishable from Marine Bank of Chicago v. Van Brunt for another and very important reason, the force of which was recognized by Mr. Justice In graham in the latter case. It is this— In the Van Brunt case no execution had been issued during the lifetime of the deceased judgment debtor. In this case such execution was issued and returned wholly unsatisfied. In delivering the opinion upon the motion from which the appeal in the Van Brunt case arose, Mr. Justice Ihg-raham expressly states that where an execution has been o,nce issued, within five years after judgment, in the lifetime of the judgment debtor, no application to the court is necessary to sustain the second execution, issued after his death, but in such case the permission of the surrogate is alone sufficient. Although the court of appeals do not make their, decision turn on that point, neither do they expressly repudiate it; and we are desirous to be heard before them on that point without being considered foreclosed by their mere silence. Under the old system there was no doubt of this principle, so far as goods and chattels were concerned. An alias and pluries might be issued. The record was considered continued down. There is nothing, founded in sound sense or good reason, which makes real estate, under the Code, any less subject to be sold on execution than personal property.
   By the Court.—Monell, Ch. J.

Oliver Johnston is the common source of title of each of the parties to this action. The plaintiff claims as his heir-at-law, and the defendant under a judgment recovered against Johnston in his life-time.

The judgment absolutely abated by the death of Johnston, and could not be enforced against his property without the institution of certain proceedings provided by law.

Until the adoption of the code of procedure, a resort was had to the writ of scire facias, to summon the representatives or heirs of the deceased debtor, to show cause why the judgment should not be executed. The same proceeding, and for the same purpose, is now in the form of a summons prescribed by the Code.

The proceeding is substantially the same under either form. The representatives or heirs are to be summoned, and the party summoned may answer, denying the judgment, or setting up any defense which may have arisen subsequent to the judgment (Code, § 379 ; 2 BurrilV s Pr. 167). Upon default of the persons summoned to appear and answer, or upon the determination of the issue made by their answer, a formal judgment that the plaintiff have execution, is entered ; and the execution is issued upon that judgment (2 Burrill's Pr. 171; 3 Id. 114), commanding the amount to be made of the real estate of the deceased debtor (2 R. 8. 367, § 25).

No proceeding of this nature was instituted to revive the judgment against the heirs of Johnston, and, it is now claimed, none was necessary, inasmuch as the act of 1850 (Sess. Laws, 1850, Oh. 295, § 1), which provides a different and more summary mode, must be regarded as in effect repealing the proceeding required by the •Code.

The act referred to is as follows: Section 1. Notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate, or chattels real, upon which such judgment shall be a lien, either at law or in equity, maybe issued and executed in the same manner, and with the same effect, as if he were still living, except that such execution cannot be issued within a year after the death of the defendant, nor in any case, unless upon permission ■granted by the surrogate of the county who has jurisdiction to grant administration, or letters testamentary, on the estate of the deceased judgment debtor, which surrogate may, on sufficient cause shown, make an ■order granting permission to issue such execution as •afoiesaid.”

It is enough to say of this statute, that the decisions are uniform, that it does not repeal, nor in any manner affect, the provision of the Code, except that it reduces the period after the death of the debtor to one year (Alden v. Clark, 11 How. Pr. 209 ; Frink v. Morrison 13 Abb. 80; Wood v. Morehouse, 45 N. Y. 368; Marine Bank v. Van Brunt, 49 Id. 160). In the last cited •case, the court say the act is merely cumulative, and adds another restraint to those already existing, but that an execution can not issue without the order and permission of both tribunals. Under these decisions, the issuance of the execution upon the abated judgment was irregular and voidable. And this brings us to the question of real difficulty in the case.

It is claimed that the omission to summon the heirs and the issuing of the execution without a revival of the judgment, was a mere irregularity, and does not affect the title of the purchaser under the sheriff s sale.

In none of the cases cited, except one, did the question arise otherwise than upon a motion for leave to-issue, or to set aside the execution already issued. And in deciding those cases it was not necessary to go farther than to hold that an execution could not be issued in such cases without a resort to the substituted proceeding for scire facias.

But in Wood v. Morehouse (supra) the action was by the heirs-at-law to redeem the property from a mortgage which had been a lien upon it before it descended to them, and which had been foreclosed without giving them notice. The defendants claimed in opposition to the heirs, under a judgment against their ancestor. Before his death an execution had been issued upon-, the judgment, under which the sheriff had advertised the saie ; but before the time required had expired, the-judgment debtor died. Nevertheless, the sheriff proceeded with the sale, and gave a deed to the purchaser,, under whom the defendants held. The court say: “ Process having been issued for the collection of the judgment by the sale of the real property of the judgment debtor, and its execution commenced, by an advertisement of the mortgaged premises for sale, in pursuance of the statute, the execution of the process-was not arrested by the death of the judgment debtor. But an execution cannot be issued after his death which, will authorize the sale of the real estate which may be-bound by the judgment. An execution cannot be sued out against heirs or terre tenants, without giving them an opportunity to be heard. The judgment must be-revived against them. The rule is, that when a, new person, who was not a party to a judgment, desires a benefit by, or becomes chargeable to, the execution, there must be a scire facias to make him a party to the judgment, before execution can issue.”

In that case the purchasers at the sale had purchased for a valuable consideration, in good faith, and without-notice, or knowledge that the notice of sale had not been posted the time required by law. But the decision is not put upon the ground that the character of the purchase afforded a protection, except perhaps so far as he might claim protection under the presumption that an officer required to do an act had done it; but upon the ground that the execution of the process had already commenced before the judgment debtor’s death,, and, therefore, no revival of the judgment was necessary. But the language of the learned court is clear, that to authorize a sale the judgment must be revived, if the death occurs before execution issued.

The validity of a title derived under a sheriff’s sale depends upon the validity of the judgment, and of the execution upon it, and one claiming title under such a sale must show the judgment, and that it is regular (Townshend v. Wesson, 4 Duer, 342). Without a valid judgment an execution would not authorize a sale, and. the proceeding would be void (Ibid).

We have seen that a proceeding to revive a judgment against the heirs of a deceased debtor, requires a new judgment to be entered, upon which, and as it seems upon which alone, an execution can issue.

If, therefore, a party defending his title under a purchase at a sheriff’s sale must show a valid judgment (Townshend v. Wesson, supra) to sustain the execution in an ordinary case, must he not also show, when he claims under a judgment which has abated by the death of the debtor, that the new judgment required by law has been obtained ?

To sustain the sale in this case would open it to the constitutional objection, that no person shall be-deprived of property without due process of law. The heirs of Johnston inherited his property. They took an absolute title in fee simple, cum onere of course, and of such title they could not be divested, except through the forms and by the proceedings prescribed by law-In those proceedings they had the right to be heard. They conld make a variety of defenses. They could show the judgment had been paid ; that it should be satisfied out of the personalty, if there was sufficient (2 R. S. 87, § 27); or that other real property upon which the judgment was a lien should contribute or be subjected to it. And it was in view of these various defenses that, as is said in Marine Bank v. Van Brunt (ubi supra), the act of 1850 was passed so that th'e surrogate could properly adjust the equities, which a court of law is unable to do.

Even, therefore, if it could be held that the act of 1850 provided the only proceeding required to revive a judgment, the constitutional objection I have stated, would, in my judgment, render the act void. It authorizes an ex parte proceeding to deprive a person of his property. It requires no notice to be given, nor affords any opportunity to the person, who is to be despoiled of his property, to be heard.

The inevitable deduction from all this is, that the omission to revive the judgment in the manner provided by law, rendered the execution and the sale under it, not irregular and voidable merely, but absolutely void.

And there is authority for the deduction.

In Woodcock v. Bennett (1 Cow. 711), the validity -of such a sale was directly involved, and the court held, that without a scire facias to revive the judgment against the heirs, the execution was void. Justice Woodworth says (p. 740): “To sanction such a proceeding, would be an invasion of one of the great principles upon which our security depends under a government of laws ; that no person shall be put out of his freehold, or lose his goods or chattels, unless he be -duly brought to answer, or be forejudged of the same by due course of law.”

In Stymets v. Brooks (10 Wend. 207) Nelson, J., says (p. 214): “On the death of the defendant, the real estate descends to Ms heirs, and to allow execution to be afterwards issued and the lands sold, would he affecting the rights of new parties, without an opportunity to be heard.”

And in Campbell v. Rawdon (19 Barb. 494), approved by the Court of Appeals (18 N. Y. R,. 421), one of the heirs had not been served with the scire facias, and the court held, that under the statute (2 Rev. Stat. 577, § 5) as well as by the authority of decisions, his title and interest was not affected or divested. The Court of Appeals sáy: “We think the legislature, in passing this statute, intended that execution should not be had upon the lands of a deceased judgment debtor, without a scire facias, to which all persons having an interest and intended to be affected thereby, must be made parties by service of the writ upon them.”

The distinction which the respondent’s counsel claim was legitimate, from the fact that an execution had been issued upon the judgment before the death of the •debtor, and returned unsatisfied, is not allowed by any of the cases I have referred to. The right to issue a second execution without leave of the court applies only to cases where no revival of the judgment is necessary.

Section 284 of the code does not supersede or defeat section 376.

The view we have taken of the act of 1850, and of the insufficiency of the surrogate’s order under it, to validate the sale, and as a consequence invalidate the -plaintiff’s title, renders the question whether the plaintiff had notice of the proceeding before the surrogate immaterial. If, however, there was notice, it was with the defendant to show it, and the referee has found that there was no proof of any such notice.

The remaining objection that the suit is not brought in the name of the proper plaintiff, requires no examination, as the referee has decided otherwise and the-defendant has not excepted.

Upon the whole case we are brought to the conclusion that the decision of the referee was erroneous.

We are aware that the defendant has acted in good • faith, and has paid a valuable consideration for the land, in the belief that the title was good. To Mm it is a great hardship and loss, but that can not be measured against the vindication of the law and the rights of other parties, who stand equally innocent.

The judgment must be reversed, and a new trial had, with costs to the appellant to abide the event». Order of reference also vacated.

Sedgwick and Speie, JJ., concurred.  