Buck's Appeal

Mr Justice Gordon delivered the opinon of the court, March 27th 1882. So well has this case been disposed of by the learned Judge of the court líelow, that we need spend but few words in justification of its affirmance. It is very true that under the Act of 1827, the terre-tenant is not concluded by the amicable revival of a judgment unless he is joined in the agreement which provides for such revival, but neither is he concluded by a scire facias unless he is served according to the provisions of the Act of 1798. But the Act of April 16th 1849 alters the practice in this, that the terre-tenant is entitled to notice only where he has put his deed upon record, or has entered into the actual possession of the land bound by the judgment. That Act reads as follows: — “ In all cases when a judgment has been or shall be regularly revived between the original parties, the period of five years, during which the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record ; provided, that this Act shall not apply to any cases which have been finally adjudicated, or when the terretenant is in actual possession of the land bound by such judgment, by himself or tenant.” Thus, then, when it appears that [113] the terre-tenant has not complied with the conditions of the statute, the only inquiry is whether the judgment has been “ regularly revived between the original parties,” and no distinction is made between a revival by scire facias, and by the agreement of the parties. In the case in hand, there is no doubt as to the regularity of the revival of the Snyder judgment, and it is an undisputed fact that the deed of Samuel Oswald, the terre-tenant, was not recorded until after the revival of that judgment. There then remains but the single question whether this terre tenant had such possession of the land, at the time of the revival, as would amount to constructive notice to the judgment creditor. But as the possession of the grantor, the judgment debtor, was continued, and as that of the terre-tenant was, at best, but joint with his grantor, and at no time exclusive, it was clearly not of that kind which would affect Snyder with notice. Hence, under the Act of 1849, the case stands as though there had been no terre-tenant, and the acts of the original parties in the revival of the judgment are alone to be regarded. It follows, that the money for distribution was properly awarded to the Snyder judgment. The decree is affirmed with costs to be paid by the appellee.