Davis v. Moore

Citations

• 103 Ill. 445
• 1882 Ill. LEXIS 198

Syllabus

<p>1. Judicial sades—sale after defendant's death. Where an execution is issued and levied upon real estate in the lifetime o£ the defendant therein, a sale after his death will be valid without any notice to his legal representative or revivor by scire facias.</p> <p>2. At common law, if a defendant died after judgment against him, no execution could be issued, but the judgment had to be revived by scire facias; but by the statute an execution is authorized to be issued against the real estate of a deceased defendant, upon notice to his legal representative, after the expiration of one year from his death, without reviving the judgment or decree. This remedy is concurrent with the common law proceeding by scire facias.</p> <p>3. Same—statute relating to sales, after defendant’s death, construed. Section 39, of chapter 77, Rev. Stat. 1874, provides that when a person shall die after a judgment or decree for the payment of money against him shall have been obtained in a court of record, execution may issue against his real estate, or a sale may be made under such decree or judgment, without reviving the same against his heirs or legal representatives, “provided, that no execution shall issue or sale be made until after the expiration of twelve months from the death of such deceased person; nor shall any sale be had on any such execution or decree until the person in whose favor the judgment or decree is, sought to be enforced shall give to the executor or administrator, etc., at least three months’ notice in writing of the existence of such judgment or decree before issuing execution or proceeding to sell:” Held, this provision has no reference to cases in which execution is issued and levied in the lifetime of the defendant in execution. The proviso relates only to executions to be issued after the death of the defendant, and sales on decrees not earned into effect in the lifetime of the defendant.</p> <p>4. Same—sale after return day is valid, if levy is made befor