Colwell v. Rockwell

Mr. Justice Pakson delivered the opinion of the court March 27th 1882. This was a scire facias against the executor of Elias Rockwell, deceased, with notice to the heirs,' devisees and terretenants, to continue the statutory lien of the judgment. Elias Rockwell died March 27th 1872. The plaintiff brought suit against his executor on March 3d 1875, and recovered a judgment against the estate. The scire facias to revive and continue the lieu thereof issued November 15th 1879. The only question that requires discussion is sufficiently presented by the second assignment of error wherein it is stated that the learned J udge instructed the jury as follows: “ But the main point in the case is whether or not at the time of Elias Rockwell’s death there was sufficient personal property to pay all of his debts including this debt, and I instruct you that if you find that there was at the time of Elias Rockwell’s death sufficient personal property to pay all his debts and legacies and everything that should come out of the personal property, including this debt, then the plaintiff is not entitled to revive this judgment against the heirs and terre-tenants.” The 24th section of the Act of 24th of February 1834, P. L. ' 77, which provides that “ no debts of a decedent except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor unless an action for the recovery thereof be commenced,” &c., did not create a lien. The effect of the Act was to limit a lien already in existence. Prior to the legislation upon this subject, a decedent’s debts were a.n indefinite lien upon his real estate. The Act of 1834 as well as the prior Act of 1797 is an Act of limitation and repose: Kerper v. Hoch, 1 Watts 9 ; Duncan v. Clark, 7 Ibid. 217; Trinity Church v. Watson, 14 Wright 518. The question of lien has no relation to the amount of the personal estate: Sample v. Barr, 1 Casey 457; Sergeant v. Ewing, 12 Casey 156; Stewart v. Montgomery, 11 Harris 410. The learned judge of the court below evidently misapprehended the nature of this proceeding. When the heirs and devisees are brought in they may contest the debt, not the lien. Sample v. Barr, supra. It would have been competent to have joined the devisees and terre-tenants in the original suit against the executor, and this practice is sometimes followed. In such case it is too clear for argument they could only to be heard to contest the debt. The rule is in no wise different, where, as here, the better practice is pursued, and the devisees and terre-tenants are brought in by a subsequent proceeding. It was said by Knox J. in Stewart v. Montgomery : “ Whether there was sufficient personal estate to pay the judgment was [137] wholly immaterial in this proceeding. The creditor had the legal right to charge the real estate, by making the devisee a party before the personal estate is finally settled. The fund to be resorted to for the ultimate payment of the judgment is at all times under the control of the court.” So we say here. The plaintiff is entitled to have his lien continued. Out of what particular fund his judgment shall be paid is a question that is not before us and is not decided. The judgment is reversed as to the heirs, devisees and terretenants and a venire facias de novo awarded as to them.