172 CASES IN THE SUPREME COURT - 123 Ar::. Brearly ad. vs. Peay, Rec'r. LJANTJARY BREARLY AD. VS. PEAY, REert. A plea to a scire facias to revive a judgment, that it has been assigned to a third person, is bad on demurrer; because the assignment vests only the equitable title in the assignee, with the right to control the collection and use the name of the plaintiff. To a seire facias issued in 1857, to revive a judgment rendered in 1816, and which had been revived in 1852, the presumption of 'payment from • lapse of time does not apply. The failure of the Circuit Court to dispose• of a 'bad plea, is not sufficient cause to reverse the judgment. A party may pursue concurrent remedies—issue a seire facias to revive • a judgment against the administrator of a deceased judgment debtor, and present the claim for allowance in the Probate Court—though he can have but one satisfaction. Error to Pope Circuit Court. Hon. JOHN J. CLENDENIN, Circuit Judge. HOLLOWELL, for the appellant. HEMPSTEAD, for the appellee.
23 Ark.] OF . THE STATE OF ARKANSAS. 173 TERM, 1861.] Brearly ad. vs. Peay, Rec'r. Mr. Chief Justice ENGLISH delivered the opinion of the court. This was a scire facias to revive the same judgment which was the subject of controversy in Brearly adr. vs. Norris, ant ,. Brearly, the administrator of Norris, pleaded in bar of tilt: scire facias that the judgment had been assigned to Mrs: Norris, by Peay, as Receiver of the assets of the Real Estate Bank, pursuant to an order of the Chancery Court of Pulaski county, and a demurrer was sustained to the plea. The demurrer was properly sustained. The assignment vest- ed in Mrs. Norris an equitable title to the judgment, and its fruits, and she had the right to control its collection, and to use the name of Peay, receiver of the assets of the bank, as plain-• tiff in the scire facias te revive the jrdgment. Weir et al. vs. Pennington et al. 6 Eng. 748. The scire facias recited the recovery of the original judgment by the trustees of the bank, under the deed of assignment, the death of Norris, and the grant of letters of administration to Brearly, upon his estate, the removal of the trustees, and the appointment of Peay, as receiver, etc., and prayed the revival of the judgment in his name against Brearly, as administrator, etc. The writ was in good form, and the proceeding by scirc facias was the legal mode of reviving the judgment in the name of Peay, against the administrator of Norris, the original defendant. 2 Tidd, 1114-5, 1118; Dig. ch. 68, sec. 19, 20; II) ch. 96, sec. 14, 15. Brearly also pleaded nul tiel record; and upon the trial of the issue to the plea, objected generally to the introduction of the transcript of the record of the judgment, olfered in evidence by the plaintiff. No valid objection to the transcript has been pointed out, and none is perceived. He also pleaded payment, but upon the trial offered no evidence of payment. His counsel here relies upon the presumption of payment from lapse of time. The original judgment was recovered 18th March, 1846, and the scire facias was sued out 2d of December, 1857. By the act of 14th December, 1814, fixing the period of limi-
174 CASES IN THE SUPREME COURT [23 Ark., Drearly ad. vs. Peay, Ree'r. IJA.NuAr.v tation to actions upon judgments at ten years (Gould's Dig. cll. 106, sec. 15,) the 30th section of chapter 91, of the Revised StatuteS, which declares that judgments, etc., thereafter rendered, should be presumed to be paid after the expiration af ten years, etc., was expressly repealed. Sec. 35 of ch. 106, of Gould's Dig., which is the same as sec. 29, ch. 91, Rev. Stat., applies to judgments rendered prior to March 5th, 1838. Woodruff vs. Sanders ad. 15 Ark. 143; Rector et al. vs. Morehouse, 17. ib. 131. By the common law, the presumption of payment of a judgment does not arise until after the lapse of twenty years front the date of the judgment. Ringgold vs. Randolph, 16 Ark. 213. The judgment now in question had been rendered less than twelve years at the time the scire facias was sued out. More-, over, upon the trial of the plea of payment, the plaintiff proved that the judgment had been revived in September, 1852. There was also a very informal plea alleging that the judgment had been assigned ta Mrs. Norris, that she had procured an allowance of it in the Probate Court, and that the administrator 'had appealed from the judgment of allowance, and the appeal was pending, etc. No notice appears to have been taken of this plea, and it is insisted, by 'the counsel for Brearly, that the judgment should be reverse& because the plea remained undisposed of. Had the pica presented a good defence to the scire facias, the failure to dispose of it might have been ground of reversal, but the judgment should not be re'versed, and 'the cause remanded merely tf.) get rid of a bad plea. We have held in the ease ,of Brearly ad. vs. Norris, that the judgment as presented to the Probate Court for allowance, was barred by the statute of limitations. •But a scire facias to revive a judgment being but a continuation of the original suit, is not subject to the plea of the statute of limitations. Brown. Robb 4. co., vs. Byrd, 5 Eng. 533; Waylard vs. Coulter, 6 ib. ISO; Evans vs. Wkite, et al., 7 ib. 133. A party may pursue concurrent remedies, and it is safest to
23 Ark.] OF THE STATE OF ARKANSAS. 175 TERAI, 1861.] do so in many cases, as it has proven in this, but there can be but one satisfaction. This case is unlike the case of Dooley et al. vs. Watkins, 5 Ark. 704, where the claim was presented to the Probate Court for allowance, and there was an adjudication upon the merits of the claim, and afterwards an action was brought upon the same claim in the Circuit Court, and it was held that the recovery in the Probate Court was a bar to the action. T he judgment must be affirmed. Absent, Mr. Justice FAIRCHILD.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.