Appeal of Ferrance's Administrator

Mr. Justice PaxsoN delivered the opinion of the court, October 6th, 1884. This appeal was from the same decree as that in Dietrich and Creamer’s Appeal just decided. Much that was said in that case is applicable here. The appellants took no step towards the revival of the judgment within five years from its date. After the five 3rears had expired they came into court and attempted to take advantage of the writs issued by Mary J. Dietrich and Catharine Creamer. They did not ask to amend those writs; indeed it is difficult to see what standing they would have had to amend writs to which they were not parties; but they filed a suggestion upon which an additional judgment was entered October 7th, 1882, for $16,532.95. But the original proceedings to revive, as we have seen, were abortive. The appellants might have disregarded them, and by issuing a proper writ within five years have revived the judgment and continued the lien. But they allowed the five years to slip by and then attempted to save their lien by tacking their suggestion to a worthless writ. It needs no argument to show that this cannot be done. It was contended, however, (see 3d Assignment) that there was no necessity to revive the judgment; that the rights of the parties were fixed as of the date of the assignment, and that under Miller’s Appeal, 11 Casey 481, the equitable ownership of the assigned property passed to the creditors. That it did so pass may be conceded. But it passed to the general creditors, subject so far as the real estate is concerned, to the liens held by particular creditors. This gave the latter an advantage or priority over the general creditors. This advantage they could retain by reviving their judgments, and in no other way. To hold that the liens against a man’s real estate may be continued after five years without revival, because of his assignment for the benefit of creditors, would be substantially to repeal one Act of Assembly and enact a new one. This is not within the recognized scope of our power. If [183] authority were needed for so plain a proposition, it may be found in Shaeffer v. Child, 7 Watts 84; Gloninger v. Hazard, 6 Wright 400; Stirk’s Appeal, 2 W. N. C. 673. The decree is affirmed and the appeal dismissed at the costs of the appellants.