JIMMY ALLEN, et al. v. WILSON COUNTY INVESTORS, LLC, et al.

No. M2002-00540-COA-R3-CV.Court of Appeals of Tennessee. at Nashville.
Filed August 8, 2003.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Chancery Court for Wilson County; No. 01371; C.K. Smith, Chancellor.

Affirmed and Remanded.

David W. Kious, Murfreesboro, Tennessee, for the appellants, Jimmy Allen and Donna Allen.

Barbara Hawley Smith, Nashville, Tennessee and Josh A. McCreary, Murfreesboro, Tennessee, for the appellees, Wilson County Investors, LLC and Tom Paschal, Trustee for Cumberland Bank.

Alan C. Housholder, Nashville, Tennessee, for the appellees, J. Atwell Scruggs, III and Eleanor S. Lowe.

William B. Cain, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and Patricia J. Cottrell, J., joined.

OPINION
WILLIAM B. CAIN, JUDGE.

This case involves an uncollected 1981 judgment against Mrs. Ruth Scruggs, individually and as trustee. Ms. Scruggs died intestate on September 20, 1998. On June 3, 1998, the judgment creditors received a writ of scire facias and the judgment was revived on June 26, 1998. The judgment was registered in Wilson County on November 9, 1998. Her Wilson County property was sold by her heirs on January 15, 2000. On October 19, 2001, the judgment creditors filed suit to enforce their lien. The trial court held for the defendants finding that Ms. Scruggs died over a month prior to the lien’s filing; thus, she was not vested with any real property, pursuant to Tennessee Code Annotated section 31-2-103, at the time the lien was filed. We affirm the trial court, finding, in addition, that Ms. Scruggs was never properly served with the scire facias, thus the judgment on that writ is void, and that the registered lien had expired under § 25-1-105 of the Code.

Prior to June 5, 1980, Plaintiffs, Jimmy Allen and Donna Allen, were owners of certain property in Rutherford County, Tennessee. On that date, they sold the property to Ruth Scruggs, trustee, and as a part of the consideration for the sale, Ruth Scruggs, trustee, agreed to pay the balance of a deed of trust note payable to Murfreesboro Bank Trust Company and secured by a trust deed upon the property. Ms. Scruggs defaulted on the payment of the note, and Plaintiffs were compelled to pay the balance in the amount of $76,417.43. They then commenced an action in the Chancery Court of Rutherford County, Tennessee against Ruth Scruggs individually and as trustee. On May 11, 1981, judgment was entered against Mrs. Scruggs individually and as trustee in favor of Plaintiffs for a total of $93,044.49. Ms. Scruggs appealed the judgment, which was affirmed by the Court of Appeals of Tennessee on June 25, 1984.

Efforts to collect the judgment proved unsuccessful, and on June 3, 1998, Plaintiffs applied for and received a writ of scire facias
directing Mrs. Scruggs to show cause why the May 11, 1981 judgment should not be revived. On June 26, 1998, the Chancery Court of Rutherford County entered an Order reviving the judgment. Plaintiffs then registered a judgment lien against all real property owned by Mrs. Scruggs by filing the Order renewing the judgment with the Register of Deeds for Davidson County on August 10, 1998 and with the Register of Deeds for Wilson County on November 9, 1998.

Ruth Scruggs died intestate on September 20, 1998 survived by her children, J. Atwell Scruggs and Eleanor S. Scruggs. At the time of her death, Mrs. Scruggs, as trustee of an unnamed trust, owned real property located in Wilson County, Tennessee. Following the death of Mrs. Scruggs, her son, J. Atwell Scruggs, as substitute trustee of the Ruth S. Scruggs Revocable Trust, conveyed 24.32 acres located in Wilson County, Tennessee to Wilson County Investors, LLC by deed dated January 15, 2000. On that same day, J. Atwell Scruggs and Eleanor S. Scruggs, as heirs of Ruth S. Scruggs, conveyed other property previously owned by Ruth S. Scruggs individually to Wilson County Investors, LLC. Simultaneous to these conveyances, Wilson County Investors, LLC conveyed the property to Tom Paschal, trustee for Cumberland Bank, in trust to secure the payment of a promissory note payable to the bank.

On October 19, 2001, Jimmy Allen and Donna Allen filed suit in the Chancery Court for Wilson County, Tennessee against Wilson County Investors, LLC; Tom Paschal, trustee for Cumberland Bank; J. Atwell Scruggs, III, substitute trustee for the Ruth S. Scruggs Revocable Trust; and J. Atwell Scruggs and Eleanor Scruggs Lowe, individually and as heirs of Ruth S. Scruggs, seeking to enforce their judgment lien. On December 4, 2001, Defendants, Wilson County Investors, LLC and Tom Paschal, trustee for Cumberland Bank, filed a motion under Tennessee Rule of Civil Procedure 12.02(3) and 12.02(6) to dismiss the Complaint against them on the basis that the Complaint seeks to enforce an invalid and time barred lien. On December 20, 2001, J. Atwell Scruggs, III, substitute trustee, and J. Atwell Scruggs and Eleanor S. Lowe, individually, filed an identical motion pursuant to Rule 12.02(6).

The case was heard on the respective Rule 12 motions on January 7, 2002 with the trial court granting both motions by Order of January 29, 2002, such order providing:

This matter came on to be heard on January 7, 2002, upon the Motion to Dismiss filed by the Defendants, Wilson County Investors, LLC, Tom Paschal, Trustee for Cumberland Bank, J. Atwell Scruggs, III, Substitute Trustee for the Ruth S. Scruggs Revocable Trust, and J. Atwell Scruggs and Eleanor S. Lowe, Individually and as Heirs for Ruth S. Scruggs (collectively “Defendants”), pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. The Court having reviewed the Complaint, Motion to Dismiss, Memoranda in support thereof, the responsive papers filed by Plaintiffs, the supplemental briefs filed by the parties, and having conducted a hearing on the Motion, finds as follows:
(a) Plaintiffs were not barred by TCA § 28-3-110
to file the Scire Facias in June of 1998. The statute of limitations was not pled at the June 26, 1998 Scire Facias hearing. The Court will not rule on whether the Order was void because such a finding would require evidence beyond the scope of the Rule 12 motion.
(b) The Plaintiffs’ judgment lien registered on November 9, 1998, in Wilson County, Tennessee, had not expired as of May 17, 2000, and, therefore, is a valid lien for ten (10) years from entry of the Judgment. The Court finds that the lien was a registered lien on May 17, 2000, and had not expired when the Plaintiffs’ Complaint was filed. The lien is valid until June 26, 2008.
The Court finds that the Complaint should be dismissed because Ruth S. Scruggs died on September 20, 1998, prior to the Judgment Lien’s filing on November 9, 1998; and consequently, Ruth Scruggs was not vested with any real property when the lien was filed. Pursuant to TCA § 31-2-103, the real property of a decedent vests immediately in the heirs or will beneficiaries upon death of the decedent.

IT IS, THERFORE, ORDERED, ADJUDGED and DECREED that:

1. Defendants’ Motion to Dismiss is hereby GRANTED;
2. The claims asserted by Plaintiffs against Defendants Wilson County Investors, LLC, Tom Paschal, Trustee for Cumberland Bank, J. Atwell Scruggs, III, Substitute Trustee for the Ruth S. Scruggs Revocable Trust, and J. Atwell Scruggs and Eleanor S. Lowe, Individually and as Heirs for Ruth S. Scruggs, are hereby DISMISSED WITH PREJUDICE.

Plaintiffs perfected a timely appeal.

I.THE WRIT OF SCIRE FACIAS

The Order Renewing Judgment of the Chancery Court of Rutherford County, Tennessee provides:

Upon consideration of Plaintiff’s Writ of Scire Facias as to the judgment entered in this case in favor of Plaintiffs Jimmy Allen and Donna Allen and against Defendant Ruth Scruggs and it appearing to the Court that the judgment is valid;
IT IS ORDERED, ADJUDGED, AND DECREED that the judgment in favor of Plaintiffs Jimmy Allen and Donna Allen and against Defendant Ruth Scruggs in the amount of $93,044.49, plus interest as provided for in the original Promissory Note and costs, be and it is hereby revived.
ENTER this 26th day of June, 1998.

This judgment is void because the return of the sheriff on the writ o scire facias shows on its face that the Chancery Court of Rutherford County never had in personam jurisdiction of Ruth Scruggs, either in her individual capacity or as trustee.[1] The process issued and served is reproduced as follows:

That a chancery court applying the ancient writ of scire facias to revive a judgment is acting as a court of general jurisdiction is not subject to serious question.

In Galpin v. Page, 18 Wall. 350, 371, 21 L.Ed. 959, the Supreme Court further said:
“`A court of general jurisdiction,’ says the Supreme Court of New Hampshire, `may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject-matter of the judgment, and as to the persons to be affected by it, must appear by the record; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.’ Morse v. Presby, 5 Fost. [25 N.H.] 302. The qualification here made that the special powers conferred are not exercised according to the course of the common law is important. When the special powers conferred are brought into action according to the course of that law, that is, in the usual form of common-law and chancery proceedings, by regular process and personal service, where a personal judgment or decree is asked, or by seizure or attachment of the property where a judgment in rem is sought, the same presumption of jurisdiction will usually attend the judgments of the court as in cases falling within its general powers.”

Magevney v. Karsch, 65 S.W.2d 562, 566 (Tenn. 1933).

In those cases where the court is acting within its authority as a court of general jurisdiction, any attack made upon its judgments is subject to strict construction in favor of the validity of the judgment.

Where an attack is made upon a judgment or decree of a court of general jurisdiction by parties or their privies, such judgment or decree cannot be questioned except for want of authority over the matters adjudicated upon, and this want of authority must be found in the record itself. In the absence of anything in the record to impeach the right of such court to determine the question involved, there is a conclusive presumption that it had such a right.

Karsch, 65 S.W.2d at 567.

In the case before this Court, the record from the Chancery Court of Rutherford County, Tennessee conclusively shows on the face of the Petition for Writ of Scire Facias that process was never served upon the defendant Ruth Scruggs. Service of process must be accomplished under rule 4.04 of the Tennessee Rules of Civil Procedure, which provides that service may be made;

(1) Upon an individual other than an unmarried infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or if he or she evades or attempts to evade service, by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.
(2) Upon an unmarried infant or an incompetent person, by delivering a copy of the summons and complaint to the person’s residence guardian or conservator if there is one known to the plaintiff; or if no guardian or conservator is known, by delivering the copies to the individual’s parent having custody within this state; or if no such parent is within this state, then by delivering the copies to the person within this state having control of the individual. If none of the persons defined and enumerated above exist, the court shall appoint a practicing attorney as guardian ad litem to whom the copies shall be delivered. If any of the persons directed by this paragraph to be served is a plaintiff, then the person who is not a plaintiff who stands next in the order named above shall be served. In addition to the service provided in this paragraph, service shall also be made on an unmarried infant who is fourteen (14) years of age or more, and who is not otherwise incompetent.

Tenn. R.Civ.P. 4.04 (2002).

Nothing appears in the record to indicate that Ruth Scruggs was incompetent at the time of the purported service of process or that she was attempting to evade process. If she was evading process, no service upon a suitable person “whose name shall appear on the proof of service” nor upon an “agent authorized by appointment or by law to receive service” is made. If one could assume incompetence of Ruth Scruggs, none of the means provided by Rule 4.04(2) is evidenced by the return on the process. The return of the sheriff simply states, “served with social worker June 8, 1998, 9:10 a.m.” There is no indication in the record as to the name of the social worker served or what, if any, connection such social worker had with Ruth Scruggs.

While there is authority that a writ of scire facias to revive a judgment is only a continuation of the original suit and not a new action, Craddock v. Calcutt, 285 S.W.2d 528, 533-34 (Tenn.Ct.App. 1955), it is long settled that “[a] judgment cannot be revived against a defendant by motion of the plaintiff alone. It is essentially different from a motion to revive a pending cause. It is in the nature of a new suit to recover upon a former judgment. And such judgment of reviver ought to be on scire facias, or upon appearance of the defendant and waiver of scire facias.” Fogg v. Gibbs, 67 Tenn. 464, 468 (Tenn.1875).

In discussing the writ of scire facias, the Tennessee Supreme Court has stated:

The scire facias is a judicial writ, based upon the record of the judgments, stating the statutory ground of its issuance, and calling upon the defendant to show cause why the judgments should not be revived. A scire facias is, in all such cases, in the nature of a declaration: State v. Robinson, 8 Yer., 370. Its sufficiency may be tested by demurrer: State v. Arledge, 3 Sneed, 230. If fatally defective in substance, the defect may be reached by appeal in error or writ of error, in which case the cause may be remanded for another scire facias: State v. Patterson, 7 Baxt., 246; State v. Johnson, 6 Baxt., 198. If the scire facias be good, and the defendant makes no defense, the plaintiff is entitled to final judgment: Taylor v. Miller, 2 Lea, 153.

Hayes v. Cartwright, 74 Tenn. 139, 143-44 (Tenn.1880). “A void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment, which want of jurisdiction may be either of the person, or of the subject-matter generally, or of the particular question attempted to be decided or the relief assumed to be given.” New York Cas. Co. v. Lawson, 24 S.W.2d 881, 883 (Tenn. 1930).

The Supreme Court of Tennessee has further held:

The law with reference to such judgments is well stated in 1 Freeman, Judgments, 643, Sec. 322,
“A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. Nothing can be acquired or lost by it; it neither bestows nor extinguishes any right, and may be successfully assailed whenever it is offered as the foundation for the assertion of any claim or title. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. No action upon the part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third person, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action. The fact that the void judgment has been affirmed on review in an appellate court or an order or judgment renewing or reviving it entered adds nothing to its validity. Such a judgment has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant.”

Brown v. Brown, 281 S.W.2d 492, 501 (Tenn. 1955).

While it is true that in an attack upon a court of general jurisdiction it is not necessary for the jurisdictional facts to affirmatively appear on the face of the record, and in the absence of such affirmative appearance, jurisdiction will be conclusively presumed, Pope v. Harrison, 84 Tenn. 82, 88 (Tenn.1885); State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000), it is likewise true that, when a defect fatal to in personam jurisdiction or subject matter jurisdiction appears affirmatively on the face of the record, the judgment is void. Davis v. Reaves, 75 Tenn. 585
(Tenn.1881). The reason that the judgment is void is stated by the supreme court:

It is a fundamental principle of our jurisprudence that no one is bound by the judgments or decrees of a court unless party to the proceeding, in some way, as may be provided by law. It is based on the idea embodied in our constitutions, State and Federal, that no man can be deprived of his property except by due process of law, and is a principle of such obvious justice as to need nothing said in support of it; its correctness approves itself on its bare statement.

Davis, 75 Tenn. at 588.

In Winchester v. Beardin, 29 Tenn. 247 (Tenn.1849), scire facias issued to revive a judgment as to a number of defendants including one W.R. Wynne, upon whom the scire facias was returned “not to be found.” The court held:

In the case of Valentine v. Cooley (Meigs, 618), a scire facias was served on a part of the heirs only, and the record showed the “defendants” had demurred, and the demurrer was overruled. The court held that this appearance, and demurrer by the “defendants,” could not be regarded as an appearance for those who were not served with process. So here, we cannot regard the word “defendants,” as used by the justice, to mean others than those who were before him, by the service of process.

Winchester, 29 Tenn. at 252.

The Writ of Scire Facias issued June 3, 1998 shows on its face that Ruth Scruggs resided in the State of Tennessee. “Jurisdiction of proceedings in personam may be acquired only by personal service of process within the territorial limits of the state of action, or by voluntary waiver thereof (as, for example, under statutory provisions for actions against alleged tort-feasors in automobile cases).” Dickson v. Simpson, 113 S.W.2d 1190, 1192 (Tenn. 1938).

While the Order of June 26, 1998 reviving the judgment recites nothing as to service of process and, in the absence of the record affirmatively establishing no service of process on Ruth Scruggs, would be conclusively presumed to be within the jurisdiction of the court, the writ of scire facias itself and the return thereon affirmatively establish the fatal in personam jurisdiction flaw. Even if the decree of June 26, 1998 affirmatively recited actual service of process on Ruth Scruggs, the actual return of the sheriff, affirmatively establishing no such service of process, would prevail over the recital in the decree. Davis, 75 Tenn. at 592.

Inherent in the due process of law admonitions of Davis v. Reaves is the right of the defendant, confronted with an application for a writ o scire facias, to be heard before the judgment is revived. Whether a writ of scire facias is but a continuation of the original suit and not a new action, Craddock v. Calcutt, 285 S.W.2d at 533-34, is a new action or, as seems to be the rule in Tennessee, is a hybrid containing elements of both, McIntosh v. Paul, 74 Tenn. 45, 47 (Tenn.1880); Fogg v. Gibbs, 67 Tenn. at 468, the defendant has the right to be personally served with process and to bring forth any defenses he may have to the reviver of the judgment. As the Court of Appeals of Maryland explained:

There is no uniformity of opinion as to whether a writ of scire facias is to be treated as a declaration or a writ. Foster, Writ of Scire Facias, 73 Law Lib. 11, said: “It is only a quasi continuation of the former suit, brought merely to revive the former judgment, and is then properly called a writ of execution.” In Owens v. McCloskey, 161 U.S. 642, 16 S.Ct. 693, 694, 40 L.Ed.837, it was said that: “Ordinarily, the writ of scire facias to revive a judgment is a judicial writ, to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as, for instance, a denial of the existence of the record, or a subsequent satisfaction or discharge.” Duff v. Wynkoop, 74 Pa. 300; Conyngham Township v. Walter, 95 Pa. 85. It is said in a note to Alexander’s British Statutes, Coe’s Ed., 194, “Although a scire facias to revive a judgment is generally termed a judicial writ and although it is as against the judgment debtor and his heirs and personal representatives a continuation of a former proceeding, still it is really an action, since the defendant has the right to plead to it any defense which goes to show that his liability has been discharged or extinguished,” and Browne v. Chavez, 181 U.S. 68, 21 S.Ct. 514, 45 L.Ed. 752; Kirkland v. Krebs, 34 Md. 93, and Brooks v. Preston, 106 Md. 693, 68 A. 294, are cited in support of this statement. Poe’s Practice, Tiffany Ed., § 585.

O’Neill Co. v. Schulze, 7 A.2d 263, 265 (Md.Ct.App. 1939).

In the case at bar the original judgment against Ruth S. Scruggs was entered on May 15, 1981. The application for a writ of scire facias was not filed until June 3, 1998, and the judgment granting the revivor was not entered until June 26, 1998. The ten year statute of limitations provided by Tennessee Code Annotated section 28-3-110 had long since expired before Plaintiffs sought to revive the May 15, 1981 judgment against Ruth S. Scruggs. The statute of limitations is generally an affirmative defense under Tennessee Rule of Civil Procedure 8.03 and must be plead affirmatively by the defendant. Because of varying statutes governing reviver of judgments in sister jurisdictions, no general rule can be applied. In some states, particular statutes provide limitations upon the power of the court to revive a judgment, and since, upon the expiration of the statutory period during which the judgment may be enforced, the judgment expires, it cannot be renewed. In such cases, the court having lost jurisdiction to revive the judgment, the statute of limitations is not applicable. In other jurisdictions, ordinary statutes of limitation are applicable. See 46 Am.Jur.2d Judgments §§ 466-67 (1994). In Tennessee it would appear that the ordinary statute of limitations would apply, and Rule 8.03 would require the defense to be affirmatively pleaded. See Warren v. Haggard, 803 S.W.2d 703
(Tenn.Ct.App. 1990).

The Tennessee Supreme Court has observed: “after the lapse of 10 years the judgment cannot be revived by scire facias over the plea of the statute of limitations.” Rogers v. Hollingsworth, 32 S.W. 197, 198 (Tenn.1895). The difficulty is that Ruth Scruggs, never having been served with process in the action to revive, had no opportunity to interpose a plea of the statute of limitations, even though the record clearly shows that the statute of limitations had expired seven years before the application for a writ of scire facias was filed. The Defendant heirs at law of Ruth S. Scruggs are privies in blood and privies in estate with Ruth Scruggs. All of the other Defendants are privies in estate and contract to Ruth S. Scruggs. See Cotton v. Underwood, 442 S.W.2d 632 (Tenn. 1969).

The judgment of the Chancery Court of Rutherford County of June 26, 1998 is void, and the writ of scire facias reviving the judgment of May 11, 1981 is ineffective for any purpose. The judgment of the trial court will be affirmed on this basis.

II. EXECUTION UNDER TENNESSEE CODE ANNOTATED SECTION 25-5-105
Assuming that the judgment of revivor entered June 26, 1998 is not void and that the recording of the Order renewing the judgment on November 9, 1998 is otherwise valid, it must next be determined whether or not the period allowed for execution expired before Appellants instituted this action to enforce the judgment lien on October 19, 2001.

A legislative history of Tennessee Code Annotated section 25-5-105 is essential to a determination of this issue. Section 25-5-105 is derived from former section 25-506 which, prior to the effective date of Chapter 673 of the Public Acts of 1986, provided in its entirety:

25-506. Period allowed for execution. — The lien given by this chapter will be lost, unless an execution is taken out and the land sold within twelve (12) months after the rendition of the judgment or decree.

Tenn. Code Ann. § 25-506 (1955). Chapter 673 of the Public Acts of 1986 effective April 1, 1986 deleted the above section in its entirety and substituted in lieu thereof:

The lien given by this chapter will be lost, unless an execution is taken out within three years commencing with the date of entry of the judgment. The provisions of this section shall apply to current liens and to any lien on which there is a pending lawsuit on the effective date of this Act.[2]

1986 Tenn.Pub.Act 673.

Tennessee Code Annotated section 25-5-105 was amended by Chapter 725 of the Public Acts of 2000 effective May 17, 2000 to provide, thereafter, for a ten year period to be allowed for execution to issue, rather than a three year period. Section 2 of this Act provided: “The provisions of this act shall apply only to liens executed on or after the effective date of this act.” 2000 Tenn.Pub.Act 725 § 2.

By Chapter 170 of the Public Acts of 2001, effective May 3, 2001, Tennessee Code Annotated section 25-5-105 was again deleted in its entirety and the following provisions substituted:

Section 25-5-105.(a) Once a judgment lien is created by registration as provided in Tennessee Code Annotated, Section 25-5-101(b), it will last for the time remaining in a ten-year period from the date of final judgment entry in the court clerk’s office.
(b) The provisions of this section apply to all judgment liens registered on or after May 17, 2000, but in no event shall any judgment lien which had expired on or before May 17, 2000, be deemed to be revived by such registration.

2001 Tenn.Pub.Act 170 § 1.

Tennessee Code Annotated section 25-5-105, as it existed prior to the 2000 and 2001 amendments thereto, would clearly provide no vehicle for the plaintiffs to enforce their judgment on real property owned by Ruth S. Scruggs, either individually or as trustee. The judgment of revivor was entered June 26, 1998, and registration of the judgment did not occur until November 9, 2001. The three year period provided by the statute prior to the 2000 and 2001 amendments clearly would have expired.

Determining the legislative intent behind the 2000 and 2001 amendments to the statute is a thought-provoking exercise. These amendments must be construed in conformity with certain well settled rules of law. First of all:

The whole purpose of statutory interpretation is to ascertain and give effect to the legislative intent; and all rules of construction are but aids to this end. Woodroof v. City of Nashville, 183 Tenn. 483, 489, 192 S.W.2d 1013. Where the words of a statute are clear and plain and fully express the legislative intent, there is no room to resort to auxiliary rules of construction. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 539, 221 S.W. 491; Gilmore v. Continental Casualty Co., 188 Tenn. 588, 591, 221 S.W.2d 814. In Hickman v. Wright, 141 Tenn. 412, 418, 210 S.W. 447, 448, it was said:
“The universal rule seems to be that if the actual language and provisions of the statute are plain and clear, and are devoid of contradiction or any affirmative ambiguity, so that the statute, as the result of the express provisions, is not reasonably susceptible of a twofold meaning, then there is no room for applying any other rules or canon of construction to the act.” (Citing numerous authorities.)

Anderson v. Outland, 360 S.W.2d 44, 47 (Tenn. 1962). An act of the legislature is to be construed so as to give it prospective and not retroactive force, unless retroactive application is plainly expressed or necessarily implied. Jackson v. Loyal Additional Benefit Ass’n., 205 S.W. 318, 320 (Tenn. 1918); State v. City of Columbia, 360 S.W.2d 39, 43 (Tenn. 1962).

More directly as it relates to Tennessee Code Annotated section 25-5-105, it is well to note that the predecessor of the present Code section was section 4710 of Shannon’s Code, and the statute, being in derogation of the common law, is subject to a strict construction rule. “The judgment lien, which is the basis of complainant’s alleged rights, is statutory only, no such lien having been known to the common law, and the statute is strictly construed. It is provided for by sections 4708, 4710 and 4711 of Shannon’s Code.” Fid. Deposit Co. v. Fulcher Brick Co., 30 S.W.2d 253, 254 (Tenn. 1930).

It is necessary to keep in mind at this point that we are not concerned with the judgment of May 11, 1981, nor the purported revival of that judgment under the scire facias Order of June 26, 1998, except inasmuch as the revived judgment provides the basis for invoking the statutory lien under the provisions of Title 25, Chapter 5, part 1 of Tennessee Code Annotated. Whatever may be the viability of the judgment against the judgment debtor or her heirs personally, it has no effect on the title to land belonging to the judgment debtor except when the statutory lien attaches thereto upon compliance by the judgment creditor with the recording provisions of Tennessee Code Annotated section 25-5-101.

Prior to the effective date of Chapter 673 of the Public Acts of 1986, the statutory lien was lost upon failure to execute upon the judgment within twelve months of the date of the entry of the judgment, such limitation of time being expressly provided by Tennessee Code Annotated section 25-5-105. The only change to this section made by Chapter 725 of the Acts of 2000, effective May 17, 2000, was to change the period of time for executing on the recorded judgment from three years, as had been provided by Chapter 673 of the Acts of 1986, to ten years. Section two of this amendment to the Act, however, provided “[t]he provisions of this act shall apply only to liens executed on or after the effective date of this act.” (effective date being May 17, 2000).

The use of the word “executed” in the 2000 amendment introduced an ambiguity into an otherwise unambiguous statute. The problem was quickly noticed:

The period in which the judgment creditor is required to levy an execution against property under a judgment lien has been extended from within three years of the judgment to within ten years. T.C.A. § 25-5-105. The ten-year period was intended to be co-extensive with the statute of limitations on the judgment itself. T.C.A. § 28-3-110(2). However, the amendment in 2000 provided that the act would apply only to liens “executed” on or after May 17, 2000. Pub. Acts 2000 ch. 725, § 2. The uncertainty of that word in Tennessee procedure (which speaks in terms of “registration” of a judgment) [led] to an effort to further amend the statute.

16 William H. Brown, Nancy F. MacLean, and Lawrence R. Ahern, III, Tennessee Practice § 21.01 (Supp. 2001).[3] The legislature was quick to remedy the problem by Chapter 170 of the Public Acts of 2001, whereby the word “executed” was made to disappear entirely from section 25-5-105 and was replaced by the words “registration” in section 25-5-105(a) and the word “registered” in section 25-5-105(b).

The final provision requiring analysis is sub-section (b) of Chapter 170 of the Public Acts of 2001 as it is codified in Tennessee Code Annotated section 25-5-105(b)(Supp. 2002). It provides: “The provisions of this section shall apply to all judgment liens registered on or after May 17, 2000, but in no event shall any judgment lien which had expired on or before May 17, 2000, be deemed to be revived by such registration.”

The lien in this case was registered on November 9, 1998, and since the first part of sub-section (b) denotes that the act of registration must occur on or after May 17, 2000 for the amendment to be effective, the ten year period is ineffective as to this particular judgment lien. The inquiry, however, doesn’t end at this point. For some reason, the legislature added the proviso, “but in no event shall any judgment in which had expired on or before May 17, 2000, be deemed to be revived by such registration.” Tenn. Code Ann. § 25-5-105(b)(Supp. 2002). Why was this proviso necessary since the first part of sub-section (b) is completely unambiguous? Was it intended to foreclose any doubt that had been created by the use of the word “executed” in Chapter 725 of the Acts of 2000?

The use of the word “executed” in Chapter 725 of the Acts of 2000 is completely inconsistent with the history of the lien statutes dating back even before the Code of 1858. Long prior to July 1, 1967, when the predecessor to Tennessee Code Annotated section 25-5-101 was amended to require registration of all judgments in excess of $500 in order to create the lien, such registration was necessary to perfect the lien on land lying outside the county of the debtor’s residence. See former
Tenn. Code Ann. § 25-502. In construing that former section of the Code, it was held:

The decree was entered of record in the Chancery Court of Roane County on December 7, 1939, and no certified copy of same was recorded in the Register’s Office of Knox County, as required by Code, § 8044. Hence, the judgment was not a lien on the Beaman Lake Property in Knox County. The injunction operated against the judgment debtors personally, but did not fix a lien on the property involved.

Seaton v. Dye, 263 S.W.2d 544, 551 (Tenn.Ct.App. 1953).

In the brief period between May 17, 2000 and the effective date of Chapter 170 of the Acts of 2001 on May 3, 2001, during which the word “executed” was a part of the statute, Plaintiffs took no action to execute on their purported revived judgment. Since the literal meaning of the word “executed” is totally inconsistent with the history of the lien statutes which, at least since Chapter 90 of the Public Acts of 1831, have depended on the judgment being “registered,” See Reid v. House, 21 Tenn. 576, 580 (Tenn.1841), we must assume that the use of the word was inadvertent. “[I]f the literal wording of the Act be in conflict with the intention and purpose of the Legislature in enacting the law as the same appears from the Act itself, the Court under well-settled rules, is authorized to modify by addition, deletion or substitution, the wording of the Act to make it conform to the purpose and intent of the Legislature.” City of Nashville v. Gibson County, 298 S.W.2d 540, 543 (Tenn. 1956); see also Business Brokerage Ctr. v. Dixon, 874 S.W.2d 1, 5 (Tenn. 1994).

A strained construction of the statute to extend the purported lien of the judgment in this case beyond three years from the entry of the judgment on June 26, 1998 is not in conformity with the rule of strict construction applicable to a statute in derogation of the common law and would, further, be contrary to the presumption against retrospective effect of the amending statutes. The purported lien of the revived judgment expired June 26, 2001 under the provisions of Tennessee Code Annotated 25-5-505, and the action of October 29, 2001 to execute the lien is untimely.

III. CONSIDERATION OF TENNESSEE CODE ANNOTATED SECTIONS 30-2-408, 30-2-409, and 31-2-103.

The purported revived judgment was entered June 26, 1998. Ruth S. Scruggs died September 20, 1998. The revived judgment against Ruth S. Scruggs was not registered pursuant to Tennessee Code Annotated section 25-5-101 until November 9, 1998. The trial court held that the revived judgment against Ruth S. Scruggs registered subsequent to her death was ineffective as to land passing to her heirs by intestate succession. This holding was based upon Tennessee Code Annotated section 31-2-103, which provides:

31-2-103. Vesting of estate — Net estate. The real property of an intestate decedent shall vest immediately upon death of the decedent in the heirs as provided in § 31-2-104. The real property of a testate decedent vests immediately upon death in the beneficiaries named in the will, unless the will contains a specific provision directing the real property to be administered as part of the estate subject to the control of the personal representative. Upon qualifying, the personal representative shall be vested with the personal property of the decedent for the purpose of first paying administration expenses, taxes, and funeral expenses and then for the payment of all other debts or obligations of the decedent as provided in § 30-2-317. If the decedent’s personal property is insufficient for the discharge or payment of a decedent’s obligations, the personal representative may utilize the decedent’s real property in accordance with title 30, chapter 2, part 4. After payment of debts and charges against the estate, the personal representative shall distribute the personal property of an intestate decedent to the decedent’s heirs as prescribed in § 31-2-104, and the property of a testate decedent to the distributees as prescribed in decedent’s will.

Tenn. Code Ann. § 31-2-103 (2001).

Appellants attempt to avert section 31-2-103 by reliance on section 30-2-408 and section 30-2-409 of the Code. These two statutes provide:

30-2-408. Claims against alienated property. (a) If an heir or devisee alien the land before action brought or process sued out, the heir or devisee shall be answerable to any creditor of decedent for the ancestor’s debts to the value of the lands aliened.
(b) Within six (6) months from the death of any person a mortgagee or purchaser for value from the heir or devisee of such decedent shall take subject to the right of any creditor of decedent whose debt is otherwise unsatisfied to subject the realty to the payment of such debts, as in this title provided. If administration shall have been granted on the estate of such decedent during the period of six (6) months, the rights of creditors whose claims shall ultimately be established in such administration as valid obligations of the estate shall constitute liens on the realty of the decedent, which realty may be subjected to such liens in the hands of the heir or the heir’s alienees as in this title provided.
(c) After six (6) months shall have elapsed from the death of any person, and no personal representative has qualified to administer on the decedent’s estate, a mortgagee or purchaser for value from the heir of such decedent shall take title free from the right of any nonlien creditor to subject the same to the payment of the decedent’s debt, unless the mortgagee or purchaser shall take with actual knowledge of such debt.
(d) After six (6) months shall have elapsed from the death of any person a mortgagee or purchaser for value from the heir of such decedent shall take free from the title, right, or claims of all persons claiming under any unprobated will of such decedent, unless such mortgagee or purchaser for value shall have actual knowledge of the existence of such unprobated will.

Tenn. Code Ann. § 30-2-408 (2001).

30-2-409. Proceeding by scire facias when debt sued on prior to deceased’s death. (a) Where no person will administer on the estate of the deceased, any person who has commenced a suit against the deceased in the lifetime of the deceased may issue a scire facias against his heirs or devisees, for whom, in case they are minors, the court shall appoint a guardian ad litem for the purpose of defending the suit.
(b) On return of the scire facias made known to the guardian and heirs, or devisees, the plaintiff may prosecute the suit to judgment and execution against the real estate of the ancestor descended or devised to the heirs or devisees.

Tenn. Code Ann. § 30-2-409 (2001).

The trial court correctly held that there is no relationship between Tennessee Code Annotated section 31-2-103, on the one hand, and sections 30-2-408 and 409, on the other. The heirs and devisees of Ruth S. Scruggs did not convey or, in any other manner, alienate the real estate of Ruth S. Scruggs within six months of her death. If there was no lien upon the real estate of Ruth S. Scruggs at the time of her death, the remedy of the judgment creditor would be by scire facias against the heirs and devisees of the estate under Tennessee Code Annotated section 30-2-409 to 412, and this remedy, being in derogation of the common law, is strictly construed. Roberts v. Busby, 4 Tenn. (3 Hayw) 299 (Tenn.1817); Planter’s Bank v. Chester, 30 Tenn. (11 Hum.) 578 (Tenn.1851).

The only judgment lien conceivably available to Appellants was the lien provided by Tennessee Code Annotated section 25-5-101 based upon the revived judgment of June 26, 1998. This lien had already expired prior to the filing of this suit, and, the proscriptive six months period provided by Tennessee Code Annotated section 30-2-408 having expired before any effort by the heirs and devisees to convey the property formerly belonging to Ruth S. Scruggs, the efforts of Appellants are in vain.

IV. CONCLUSION
Three primary issues were presented to the trial court with that court holding that the lack of in personam question could not be decided on a Rule 12 motion and that the purported lien had not expired under section 25-1-105. The court then decided the case in favor of Defendants holding Tennessee Code Annotated section 30-2-408 and 409 to be inapplicable to the case. We affirm the holding of the trial court on this latter finding and further affirm the trial court judgment on the basis that the Rutherford County judgment on the writ of scire facias is void for lack of in personam jurisdiction over Ruth S. Scruggs and that the registered lien had expired under the provisions of Tennessee Code Annotated section 25-1-105. See Tenn R.App.P. 36; Martin v. Senators, Inc., 418 S.W.2d 660, 665 (Tenn. 1967).

The judgment of the trial court is affirmed, and costs are assessed to Appellants.

[1] The trial court declined to rule on whether or not the judgment o scire facias was void holding that “such a finding would require evidence beyond the scope of the Rule 12 Motion.” The portions of the record from the Rutherford County Chancery Court, disclosing the in personam jurisdictional flaw as to Ruth S. Scurggs, are exhibits to the Complaint. These exhibits are part of the Complaint for all purposes under the provisions of Tennessee Rule of Civil Procedure 10.03 and may properly be considered by the court in ruling on a Rule 12 Motion. See N. Ind. Gun Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449
(7th Cir. 1998).
[2] Section 2 of Chapter 673 of the Public Acts of 1986 also amended section 25-5-106 by deleting it in its entirety and substituting in lieu thereof: “If an appeal is taken from any judgment for which the lien provided by this chapter would apply, the time for sale provided in Section 25-5-105 shall commence upon the final determination of such case.” Since no direct appeal was taken from the June 26, 1998 judgment of revivor, section 25-5-106 is inapplicable.
[3] In codifying section 25-5-105 of the Code, after the enactment of Chapter 725 of the Acts of 2000, the Code Commission added section (a)(2) to read “[t]he provisions of subdivision (a)(1) apply to liens on which there was a pending lawsuit on April 1, 1986, and to any lien executed before May 17, 2000.” The last phrase of this provision does not appear either in Chapter 673 of the Acts of 1986 or Chapter 725 of the Acts of 2000 and is apparently intended to clarify the situation relative to liens “executed” prior to May 17, 2000, as opposed to those “executed” after May 17, 2000, pursuant to section 2 of Chapter 725 of the Acts of 2000. The word “executed” is only used once in the enactments of the legislature, that being in section two of Chapter 725 of the Acts of 2000.