Porter v. Hitchcock

Mr. Justice Gordon delivered the opinion of the court When Sarah Porter, the terre-tenant, bought the Huntley property, it was charged with the lien of the plaintiff’s judgment, which was entered on October 8th 1875. On November 23d 1877, a scire facias was issued on this judgment, which was served on Huntley but not on the terre-tenant. On this scire facias there was a judgment entered against Huntley on June 13th 1879, and was followed by an alias scire facias which was served on the defendant April 9th 1881, within five years from the date of the issuing of the original scire facias. The learned judge of the court below thought this was in time to charge the property of the ten’e-tenant, and so ruled. In this he is supported by the act of 1827, and by the cases of Meason’s Estate, 4 Watts 341; Silverthorn v. Townsend, 1 Wr. 263 ; Davidson v. Thornton, 7 Barr 128; Lichty v. Hochstetler, 10 Nor. 444, and Kirby v. Cash, 37 Leg. Int. 254. Some reference has been made by the counsel for the defendant to the Act of 1849, but we think it singular that this Act should be cited as putting the terre-tenant in a position superior to that of the judgment debtor, or to that possessed by such tenant under the Act of 1827. The very contrary is the fact. The Act of 1849 was obviously passed to meet the case of Armstrong’s Ap., 5 W. & S. 352, wherein it was held that under the Act of 1827 the terre-tenant must be made a party to [627] the revival of the judgment, though his deed was not on record. The Act of 1849 so far alters this rule that a revival of the judg^ ment against the original debtor wi&l bind the terre-tenant unless he has put his deed on record, or is in the actual possession of the land, and his right to notice now commences only from the date of such record, or time of such possession. In other words, by complying with the terms of this Act, he entitles himself to thé notice prescribed by the Act of 1827, otherwise he is entitled to no such notice, and his land continues to be bound by the lien of the original judgment as long as it is kept revived against the original debtor. Judgment affirmed.