Meinweiser v. Hains

Chief Justice Mercur, delivered the opinion of the court October 26th, 1885. The plaintiff seeks to recover this land by virtue of his purchase at sheriff’s sale as the property of one Wilson. It is conceded that the latter was the owner of the land at the time a judgment was recovered against him and others in June, 1875. The contention is whether the lien of the judgment continued until the sale made by the sheriff in September, 1882. In May, 1879, Wilson sold and conveyed the land to Craig. In May, 1880, a scire facias issued on the judgment. It was duly served on Wilson and on the other defendants in the judgment; but was not served on Craig, although he was in possession of the land. In October of the same year judgment was duly entered against Wilson and his co-defendants for the amount of the original judgment and interest. Execution issued thereon by virtue of which the land was levied on, and sold to the plaintiff to whom a deed was made, duly acknowledged in open court, and delivered in September, 1882. The contention is whether the issuing of the scire facias within five years after the rendition of the original judgment, [472] without service on Craig, continued the lien on the land he had purchased of Wilson. The learned judge thought it did not, and instructed the jury to find accordingly. The Act of 4th April, 1798, as well as the Act of 26th March, 1827, provides that a judgment shall not continue a lien for a longer period than .five years unless revived within that time or a writ of scire facias to revive the same be sued out within said period. These two procedures are stated disjunctively. Either one fulfills the requirement of the Statute. The suing out of the writ within the five years just as effectually extends the lien beyond that period as if the judgment were actually revived within that time. The Statute is silent as to the time in. which a writ thus sued out must be served. Judicial decisions, however,- have given construction to its language, and declared the effect of a writ thus duly issued. It is not necessary that the writ be served, nor in case an alias or pluries writ be issued that either be served. The mere issuing of a scire facias within five years after the rendition of the judgment, continues the lien for the period of five years from the time the lien of the former judgment would expire. This rule applies as well to a terre-tenant as to the defendant in the judgment: Lichty v. Hochstetler, 10 Norris, 444; Kirby v. Cash, 12 Id., 505; Porter v. Hitchcock, 2 Out., 625. The Act of 16th April, 1849, Pur. Dig., 947, pi. 10, does not enlarge the rights óf a terre-tenant? but on the contrary restrains them. Its effect is not to discharge any lien on his lands which would remain a lien under previous laws ; but to continue it still longer if he has not put his deed on record or is not in actual possession of the land by himself or his tenant. In the present case the tenant was in actual possession, and therefore the Act of 1849 does not apply. The learned judge misunderstood the ruling in Buck’s Appeal, 4 Out., 109.' He therefore erred in not affirming the several points of the plaintiff, and in not denying the point of the defendants. The fifth specification of error is also Sustained. Judgment reversed and a venire facias de novo awarded.