Scammon v. Swartwout

Citations

• 35 Ill. 326

Syllabus

<p>1. Judgment liens—how created—and of their duration. It is by the statute alone that a lien by judgment exists at all on real estate, and therefore it must be controlled by the statute.</p> <p>2. Seven years is the assigned duration of a lien on real estate, by a judgment rendered in a court of record, and it cannot be extended beyond that period.</p> <p>3. Heirs of a judgment debtor—of their title to the realty as against a judgment creditor, and how they may he divested of their title. Where a judgment debtor dies, the seven years lien having expired, his real estate descends to his heirs-at-law, out of whom the title cannot be divested, except in the mode provided by law, by some proceeding to which they are parties.</p> <p>4. In such case, the judgment creditor may subject the real estate of his debtor in the hands of his heirs, to the satisfaction of his judgment, by proceedings by scire facias to revive the judgment, making the heirs parties, and then upon the judgment of revivor issue an execution and sell the realty.</p> <p>5. But the creditor cannot divest the heirs of their title to realty, acquired under such circumstances, simply by suing out an execution upon the original judgment, upon notice to the administrator, and obtaining a levy and sale under such execution.</p> <p>6. Where such a course is pursued, the execution and all the proceedings under it will be void and of no effect, and, consequently, no valid title could grow up out of them.</p> <p>7. Execution—when it may issue upon a judgment, wherein the defendant has died. Section thirty-seven of the chapter in the Revised Statutes, entitled “ Judgments and executions,” which provides that execution may issue upon a judgment, notwithstanding the death of the defendant, without first reviving the judgment against his heirs and legal representatives, was designed to apply to cases where there is an administrator or executor of a deceased debtor, and where there is a subsisting lien. In the absenc