Fuellhart v. Thompson

Opinion by Rice, P. J., In Cowden v. Brady, 8 S. & R. 505, decided more then seventy-five years ago, Chief Justice Gibson said that the whole policy of our state, both of the courts and the legislature, had been adverse to secret or stale liens. Speaking of the proposition that under the Act of March 20, 1799, 3 Sm. L. 358, the lien of a testatum fi. fa. was of indefinite duration he said: “ It would be an odd construction that should impute to the legislature a design to give an effect to an execution which they refuse to tolerate with respect to a judgment. It would be a strange inconsistency in them to say, the direct lien of a judgment, which is matter of record hr the county where the lands lie, shall he of no avail after five-years, unless the plaintiff gives additional notice [279] within that time, by reasserting his claim before the court; and yet, that an execution, which is a mere accessory or consequence of a judgment, shall indirectly produce an indefinite lien, which is conceded to be secret in its nature, and not to be discovered except by an examination of the execution docket of every county in the state.” So it may be said here, it would be a strange inconsistency for the legislature to give to a verdict a lien of indefinite duration and limit the lien of a judgment on that verdict to five years. The suggestion that either party may regulate the duration of the lien of the verdict by having judgment entered is no answer. Neither party may see fit to do so. The consequences would be that purchasers and subsequent creditors must search for the liens of verdicts for an indefinite period, if the appellant’s construction of the act of 1877 be correct. The mischief that would arise from such construction would be greater than the one intended to be remedied, as the learned auditor well says. Moreover, this suggestion of counsel implies that the lien of the verdict terminates when the lien of the judgment is at an end — a proper concession, but one which weakens his plea for rigid adherence to the strict letter of the law; for it imports something into the act, which is not expressed totidem verbis, as plainly as does the construction contended for by the appellee. Manifestly the act needs construction, and having regard to the mischief to be remedied, the class to which the lien of a verdict is assigned as indicated by the requirement that it shall be placed in the judgment index, the policy of the law with regard to that class of liens, and the mischievous consequences that would ensue from holding that it is of indefinite duration, we think the true construction forbids that it shall continue longer than would the lien of a judgment. It has been said that the law does not recognize the possibility, when due diligence has been used, that the plaintiff can fail to obtain a judgment of revival within the period of five years : Meason’s Estate, 4 W. 341. It can be said with equal truth that a plaintiff who has obtained a verdict, and uses due diligence, cannot fail to have judgment entered within five years if he is entitled to it. Notwithstanding the very learned and able argument of the appellant’s counsel we think the right conclusion was reached in the court below, by the proper application of well settled rules for arriving at the intention of the legislature. [280] We cannot profitably add anything further to what is contained in the auditor’s report and the opinion of the learned president of the court below. The decree is affirmed and the appeal dismissed at the costs of the appellant.