
    GENERAL COURT, (E. S.)
    APRIL TERM, 1804.
    Arnott and Copper vs. Nicholls.
    If after a judg-? mont lias hem rendered against a defindant he sells and conveys his lands bona fide* and for a valuable consideration, a wiit, of'fieri facias cannot afterwards be laid thereon* although twelve months and a day had not expired* unless a scire fa-cias liad ben» sued out upoy the judgment, ánd notice given to the ven-dee, as terre-te-
    On a motion to quash the return to such a feri fa-ciaSt as much and more may ue inquired into as in an action of eject-menu the court hav-ng an equitable control.
    Motion to quash the return made upon a writ of fieri facias. At September term 1802, the plaintiffs obtained a judgment in this court against the defendant, with an agreement to stay execution thereon until September term 1803. On the'28th of August 1803, the defendant conveyed a parcel of'land to Thomas Goldsborongh, by deed bona fide, and for a valuable consideration. On the 28th of February 1804, the writ of fieri facias in this case issued on the plaintiffs5 judgment against the lands, &c. of the defendant, and was laid in part on the land so conveyed to Goldsborongh, on whose-behalf this motion was made by
    
      Bullitt, who argued,
    that although the judgment was a lien on the land, it did not preclude the defendant from transferring it cum onere, and that a scire facias was requisite before a fieri facias could issue.’ That in all cases where the inheritance or freehold is affected, the tenant of the freehold is to be made a party; and that terre-tenants ought by law to be all equally contributory in discharging liens, and one sued alone may plead in abatement that there are others. 4 Bac. M. tit. Scire Facias, (C. 5,) 114, 113. The cases of a fine and common recovery, as cited by Bacoh from 2 Salk. 598, pi. 2, and Garth. Ill, are illustrations of the general rule that a terre-tenant is not to be ousted without a scire facias. Nor are terre-tenants, who are strangers to the recovery of houses in a writ of assise, to be ousted without a scire faciaé. 2 Bac. M. 353. So also as to heirs, executors and administrators, a scire facias must issue, because they may shew cause against the execution. He also cited precedents from 2 Harr. Ent. 749, 763, of writs of scire facias against the defendant in the judgment and the terre-tenants, and against the terre-tenants only, as evidence of the practice in such cases in this state.
    
      
      Hammond and Carmichael, against the motion,
    contended, that a motion was not the proper mode of proceeding — That the defence, if there was any, would come out more properly in an action, of ejectment to obtain possession by the purchaser, of the land purchased at the sale made under the fit ri facias; for there the fraud, if there was any. might more properly he inquired iiito. They relied upon the general rule laid down in 2 Bac. M. tit. Execution (I.) “that lands are bound from the time of the judgment, so that execution may be of these though the party aliens bona fide before execution'sued out.” They inferred from the rule of law as here expressed, that was a previous scire facias necessary to be served upon such alienee; it would have been here mentioned. A strong inference was also to be drajvn, they said, from the application of writs of f enfadas, by practice in this state, to lands as well as to goods and chattels, under the statute of 5 Geo. IL ch. 7, which was riot analogous to any execution in England, except an extent or an ehgit, and there were no eases under either of them where a scire facias was necessary. That by the law of England no scire facias is neressary before a fieri facias can issue against goods and chattels, although such goods and chattels be transferred to a third person, if it be after the delivery of the writ, such delivery operating as a Ken upon the goods and chattels in like mannei» as a judgment does upon lands; so no scire facias is necessary where a fieri facias issues against lands, as it may in this state, such lands being hound from (lie time of the judgment. The inconvenience and impolicy of such a practice, requiring a scire facias in'such a case, was urged. A creditor might, by such means, be for ever defeated, or much delayed by successive alienations after judgment. That it was a genera! rule of law, that execution being the fruit of a judgment, was always to be fa-voured. They further observed, in answer to the eases cited by the opposite counsel from 4 Bac. Mr. tit. Scire Facias, (C. 5.) that they were cases of writs of .error to reverse a fine and a common recovery, an4 iii at the scirefacias there spoken tif, was a sbire facias ad audiendum errores, and not a scire facias to shew cause why execution should not issue; That the former kind of scirefacias, via. a scirefacias ad audiendum cr-rores-, was a formal part of the proceedings on a writ of error, was different from a scirefacias to shew cause* and had therefore no relation to present case. That the general rule laid down in Bacon, together with the cases added in illustration thereof, ■ \tere so to be understood, and they show it to be discretionary with the court, to order the scire facias or not. Here Goldsborough has no equity to offer. Besides, on si reversal of a common recovery and line, a writ of restitution goes to the sheriff, which renders a sciré facias necessary to let in the ferre-tenant to show his defence. But under a sale made under a fieri facias there was no such thing* as the purchaser is left to his action of ejectment, when the defence of the terre-tenant may be made. Fines and recoveries' are only conveyances, and the sciré facias is only ad audiendum errores. They also cited Graff vs. Smith’s adm’rs, 1 Dali. Rep. 481, to shew that no scirefacias was necessary in such cases by the law óf Pennsylvania.
    
    
      Bullitt, in reply, contended, that fraud could as well be inquired into on this motion as in an action of ejectment. But in ejectment Goldsborough could not call o'n the terre-tenants, as be may by pleading to a scirefacias. That if the statute of 5 Geo. II. ch. 7, puts a fieri facias against real and personal property on the same footing, this fieri facias cannot affect the land in question, being issued after it was conveyed; but the land is bound by the judgment, and all that the bona fide vendee can require, is an opporfu--!1‘N í;0 show a meritorious defence. That a scirefa-das in fines and recoveries is not merely ad audien-dum errores, but also to show cause why he should not be ousted' by a writ of restitution, and this is the more obvious use of if.
    
      Under the statute of 5 Geo, II, ch. 7, lands are made liable to the payment of debts, m like manner as personal estate. By the statute of 29 Car II, ch. 3, s. 16, u fieri facias against personal estate, first delivered to the sheriff, will have the preference; and as that statute makes Do difference, except as to purchasers, a fieri facias against lands, &e. remain, as alien Jactas against personal estate at common law, and that which is first, delivered will have the preference, anil shall he first satisfied*
    
    
      
      
         The Reporters have been furnished with a written opinion of the general court, given by Goldsborough, Ch. J. and Chase and Duvall, J. (sitting on the eastern shore,) in, it is believed, the case of Hindman vs Ringgold They however have been informéd, that oné ofthéjudges; (Mr. Chase,) on hearing the decision in this case mentioned, observed either that the court had overruled that decision, or, that they had given some explanation respecting it; which more fully expressed the meaning of the court.
      The written opinion above mentioned is as follows, viz.
      
        “The opinion of the General Court relative to the levying of ese-1 ecutions. ]
      
        «Before the statute of 5 Geo. II, ch. 7, lands were not liable to be taken in execution. Under that statute the houses, lands, ne-groes, and other hereditaments and real estates, within any of the British plantations, belonging to any person indebted to the king, or to any of his subjects, are made liable to the satisfaction there» of in like manner as personal estates in any of the said plantations are seised, executed, sold or disposed of
      
        "By the statute of 29 Car. II, ch 3, s. 13, 14, it is enacted, that after the 24-th of June 1677, the day of entering or signing any judgment shall be entered on the margin of the record; and by section 15, judgments,, as against purchasers, shall relate to such time only
      "By section 16 of the same statute of Car. II, the execution against personal estate, first delivered to the sheriff, will have the preference; and as the statute of Charles makes no difference but as to purchasers, this case remains as an execution at common law against personal estate, and therefore the execution Jirst delivered will have the preference, and shall be first satisfied." See Ridgely's ex'rs vs. Gartrell, 3 Harr. & M'Hen. 449, decided by the same judges.
    
   Chase, Ch. J.

The return toth o, her i fiadas, must-be quashed, so far as it respects the land sold and conveyed by the defendant to' Thomas Goldsborough, no-fraud or collusion in the sale to him having been alleged.

The terre-tenant should have an opportunity to relieve himself, and to bring in the other terre-fenants —-Hence the. necessity of a scire facias, that all the terre-tenants may be warned.

On this motion as much may be brought out as in an action of ejectment, and more, as the court have an equitable control*

RetueN quashed. 
      
      
         The decision in this case has been overruled by the Court of Appeals in the case of M'Elderry vs. Smith's Lessee, at June term 1807.
     