Ransom v. Williams
RANSOM brought ejectment against Williams, in the Circuit Court for the Northern District of Illinois. Both parties claimed title from Galbraith. The plaintiff relied upon a sheriff's deed, made pursuant to a sale under an execution upon a judgment against Galbraith and others, obtained in the State court of Ogle County, on the 27th of March, 1841. The execution was issued on the 25th of November, 1847; the sale made on the 25th of November, 1848, and the deed executed on the 24th of July, 1849. The defendants claimed under a deed from Galbraith and wife, dated on the 31st of May, 1842. This deed contained a special covenant against the 'claims of all persons claiming, or to claim, by, through, or under him.' Galbraith died in 1843, and letters of administration upon his estate were issued on the 25th of February in that year.
A statute of the State of Illinois, it is here necessary to say, authorizes execution to issue against the lands and tenements of a deceased judgment debtor, 'provided, however, the plaintiff or plaintiffs in execution, or his or their attorney, shall give to the executor or administrator, if there be any, of said deceased person or persons, at least three months' notice in writing, of the existence of said judgment before the issuing of execution.' There was no proof that such notice had been given to the legal representatives of Galbraith; but it was proved by the plaintiff that the premises in controversy had been sold under a prior execution, and that, on the motion of the judgment creditor, the court to which the execution was returned had set the sale aside, quashed the execution, and ordered that another execution should issue. This order was made on the 24th of September, 1847.
The court below charged the jury, that the want of proof of due notice to the legal representatives of Galbraith, before the issuing of the execution, under which the sale was made, was fatal to the plaintiff's case.
The jury found accordingly, and the plaintiff excepted. The correctness of the charge was the point on error here.
Mr. E. S. Smith, in support of the sheriff's sale: The only thing made necessary by the proviso, before execution can issue, is notice to the executors, or administrators, if there be any, of the existence of the judgment. The statute dispenses with the common law proceedings, and in cases only where there are administrators or executors appointed, is it necessary to give notice. If there be no executors or administrators, execution can issue and sale be made, after the death of the defendant, without notice, and this sale can be defeated only by showing that administrators had been appointed at the time the execution issued, and that no notice of sale was given to them. The design of the statute was to give to the creditor a cheap mode in which to enforce the lien of his judgment. The lien once attached, it will operate until the judgment is satisfied.
The record is regular on its face. It is just as it ought to be, supposing notice to have been given. Even if notice had been given, that fact would not appear on it. Herein, a sale, under the Illinois statute, would differ from a common law proceeding, where the sci. fa. to revive would be a part of the record proper. The present record thus affords presumptive evidence that notice had been given; and it placed the burden of proof on the defendants to show want of notice, if there was such want. The defendants could have called the administrators to show this want, if it really existed.
The defendants claim title from Galbraith, by deed, dated May 31st, 1842, which shows, so far as the rights of the plaintiff are concerned, that there was no notice required to the administrators or heirs. The deceased had, long prior to his death, conveyed all his right in the property to Williams, the defendant, and, of course, it was subject to the judgment lien. It would be folly to require of the plaintiff proof that notice had been given to a party who had no interest in the property. After showing title in themselves, the defendants are estopped from showing irregularity in the execution from want of notice. They do not stand in the shoes of the heirs. The only question is, who had the first lien?
But, in addition, it appears that the execution on which the land was first sold was set aside, and a second execution ordered. It is thus plain that the court was even more than commonly advised. It is to be presumed in law-it cannot be doubted as fact that the court had satisfactory notice that the administrators of Galbraith had received notice. At any rate, the proceedings cannot be attacked collaterally. These doctrines have been declared with great strength by this court in more cases than one.  But, in these cases, the court did no more than enforce settled principles of English common law. Prigg v. Adams, reported by Serjeant Salkeld, A.D. 1692,  affords foundation for all since interated here. In that case, which was trespass and false imprisonment, the defendant justified, as an officer, under a ca. sa. on a judgment in the Court of Common Pleas, upon a verdict of five shillings for a cause of action in Bristol. The plaintiff replied, and set forth a private act of Parliament, erecting the court of conscience in Bristol, wherein was a clause that, if any person bring such action in any of the courts of Westminster, and it appeared upon trial to be under forty shillings, that no judgment shall be entered for the plaintiff, and if it be entered, that it shall be void. Upon demurrer, the question was, whether the judgment was so far void, that a party shall take advantage of it, in this collateral action. And the court held that it was not; and construed the statute to mean, that it should be void only at the instance of the defendant, in direct proceedings taken by him to vacate or set aside the judgment on that ground. Apply the principle in that case to the one under consideration, and treat the statute as declaring, that if an execution issue against the lands and tenements of a deceased defendant, without the record showing that notice was given to the administrator, it shall be void; and then, we say, that the defendants in this suit cannot take advantage of the objection in this way. None but the representatives of the deceased defendant, or the heirs, could make the objection; and they only by motion to set aside, or other proceedings to vacate the order.
The result of the whole is, that the plaintiff below should have had judgment.
Mr. Hitchcock, contra: Under the laws of Illinois, the judgment should have been revived by scire facias, or by a notice in writing to the administrators of the deceased, of the existence of the judgment before issuing the execution. The first is a common law proceeding, and the second is authorized by the statute quoted. This notice is provided as a protection to heirs against dormant judgments, and is a substitute for scire facias. No evidence was offered of revivor in either mode. For want of notice the execution is void. This is a rule of property in Illinois. In New Hampshire, Pennsylvania, Mississippi, and elsewhere, courts may have decided that an execution issued after the death of a defendant is voidable only, and cannot be attacked collaterally. Such, however, we think, is not the rule in the courts of Illinois under this statute. Every maxim of the law imposes the burden of proof, in this respect, upon the plaintiff. He claims a statutory benefit, and must aver and prove himself to be within the terms of it. He holds the affirmative in asserting title ander the statute. The fact that notice was given is peculiarly within his knowledge, and the means of proof within his control. The statute makes it his duty to give the notice, and he is presumed to preserve the evidence of a fact so essential. The defendant is a stranger to the judgment, to the notice, and to the administrators. A party will be held to prove a negative, if the means of such proof are specially within his control. A fortiori is the burden upon him, if he asserts a title upon an affirmative proposition, with the means of proof specially within his power. A different rule would impose on the defendant the burden of proving a negative.
The question is, moreover, settled by authority. 
Mr. Justice SWAYNE delivered the opinion of the court.
^1 See supra, Florentine v. Barton, p. 210, also Tyler v. Harvey, infra, p. 328, and cases cited.
^2 2 Salkeld. 674.
^3 Laflin v. Herrington, 16 Illinois, 301; Finch et al. v. Martin et al., 19 Id. 105.