Biesecker v. Cobb

Opinion by Rice, P. J., The facts of the case are very clearly stated in the findings of the learned judge of the court below, and may be briefly summarized as follows: April 28, 1888, judgment Charles M. West against E. S. H. Cobb; October 31, 1893, E. S. H. Cobb died testate devising to his wife, “ the right of dower and the balance of my estate real and personal to my surviving children, share and share alike; ” March 3, 1896, sci. fa. sur above judgment, served on executrix April 9, 1896; April 16,1896, heirs and devisees conveyed to Huslander; March 17, 1898, Huslander conveyed to Coursen; July 12, 1898, judgment on sci. fa.; August 9, 1898, execution; September 30, 1898, sheriff’s sale to assignors of present plaintiff. The latter commenced proceedings before a justice of the peace against the executrix to recover possession, which on being brought into the common pleas were converted into an action of ejectment, and Coursen was permitted to defend. It will be noticed that judgment was obtained on the sci. fa. within five years after the death of E. S. H. Cobb. The main question is, whether or not a judgment entered more than five years before the death of the defendant, and not revived in the mean time loses its lien at the expiration of two years after his death, or not until the expiration of five years. Another question is, whether or not a purchaser from the devisees of the defendant in the judgment, who obtains title after the issuing and service of the writ upon the executrix, must be made a party to the sci. fa. in order to obtain a judgment upon which a sale can be made, that will pass a good title. [65] The able opinion filed by the learned judge of the court below, has made any extended discussion of these questions by us unnecessary. Prior to the Act of April 19, 1794, 3 Sm. L. 143, the debts of a decedent were liens upon his real estate against all the world for an indefinite period of time: Konigmaker v. Brown, 14 Pa. 269. To remedy the inconveniences recited in the preamble the 2d section of the act limited the lien of debts, “ except they be secured by a mortgage, judgment, recognizance or other record,” to seven years. The Act of February 24, 1834, P. L. 70, sec. 24 reduced the period of lien of debts to five years, “except they be secured by mortgage or judgment.” The Act of June 8, 1893, P. L. 392, further reduced the period of lien to two years. But that act, as construed by its title, applies only to “ the lien of the debts of a decedent other than those of record,” and expressly excepts from its operation debts “secured by mortgage or judgment.” This was a debt of record; it was secured by judgment; and whether the act of 1893 be construed as excepting from its operation all debts of record, as its title would indicate, or only such debts as are secured by mortgage or judgment, is immaterial, so far as the present case is concerned. Under either construction this debt was within the exception, unless it be held that an unrevived judgment more than five years old at the debtor’s death is, as to duration of lien, to be classed as an ordinary debt. The language of the act would seem to be a sufficient answer to this proposition. But the point has been expressly ruled. In Baxter v. Allen, 77 Pa. 468, the same propostion was urged, and the cases cited here (Moorehead v. McKinney, 9 Pa. 265, and McMurray’s Admr. v. Hopper, 43 Pa. 468), were cited by counsel in that case in support of it. In disposing of it the Supreme Court said: “ A judgment of record at the time of the death of the defendant, though without lien on his real estate at the time of death, does not fall into the class of mere debts whose lien is limited to five years after the death of a decedent, unless suit be brought for the same according to the 24th section of the act of February 24, 1834. That section expressly excepts debts secured by mortgage or judgment; suit is unnecessary when the debt is already in judgment, The record gives notice of [66] the debt to all persons interested, and it remains unaffected by time, as to all volunteers, until a presumption of payment arises.” In the two cases cited by appellants’ counsel, the judgment never was a lien upon the land in question in the defendants’ lifetime, whilst in Baxter v. Allen, as well as in the present case, it was, and, as against him, its duration was without limitation of time: Brown’s Appeal, 91 Pa. 485; Middleton v. Middleton, 106 Pa. 252. This perhaps is the ground upon which the cases’ are to be distinguished. Be that as it may, Baxter v. Allen has never been questioned, and being directly in point must control here. The principle decided is as applicable to the act of 1898 as to the 24th section of the act of 1834. It follows that a judgment entered more than five years before the death of the defendant, and not revived in the meantime, does not, as against the land upon which it was a. lien and of which the defendant- died seized, lose its lien until the expiration of the period of five years after the defendant’s death. Upon the second question the court correctly held that, as neither Coursen nor Huslander was a terre-tenant when the sci. fa. issued and was served, the provisions of the Act of June 1, 1887, P. L. 289, did not apply to the case. As the plaintiff’s counsel well says, whether those who buy lands bound by a judgment, after the issue of a sci. fa. to revive it, may be allowed to defend as terre-tenants, need not here be considered. It is sufficient .that the plaintiff is not required to look up such purchasers and make them parties. If it were to be held as the defendants’ counsel claim, it would not be safe to take a verdict upon the sci. fa. without searching the records in the recorder’s office the moment before to ascertain whether or not the defendants had aliened the property after the jurors were sworn. This is not the law. We conclude that the judgment was valid, and that the sheriff’s sale passed a good title. All the assignments of error are overruled. Judgment affirmed.