Ebright v. Bank

The opinion of the Court was delivered by Rogers, J. It is notorious, that the liberal construction which the courts gave to the act of 1798, in Young v. Taylor, 2 Binn. 218 ; Pennock v. Hart, 8 Serg. & Rawle 369 ; and The Commonwealth for the use of Pennock's Executors v. M’Kerper, 13 Serg. & Rawle 144 ; was the principal cause which gave rise to the supplement, passed the 20th of March 1827. In language which it is difficult to misapprehend, the legislature have made .a scire facias necessary, in all cases where such awrit can issue. We have only to inquire, whether [399] a scire facias may have issued to continue the lien; and I can see no legal objection to issuing such a writ,although the plaintiff may have proceeded to levy on the defendant’s property, whether real or personal. The words of the first section are sufficiently comprehensive, to cover the whole ground. No judgment shall continue alien on real estate for a longer period than five years from which the judgment may be entered or rendered, unless revived by agreement of the parties, or a writ of scire facias to renew the same be sued out, notwithstanding an execution may have been issued within a year and a day. And to make the meaning still more certain, in the third section the legislature says, that no order or rule of court, or any other process or proceeding thereof, shall have the effect of obviating the necessity of the revival of the judgment in the manner described. That some inconvenience may arise in a literal compliance with the act, may be probable; but this consequence is for the legislature, and not for the court, to consider. If we listen to these exceptions, others will soon arise, which will be said to come within the same principle; and the mischief and uncertainty which the supplement was intended to remedy will be again introduced. The rule which the legislature have prescribed has the merit of simplicity, and should not be departed from, except in a case of necessity; where, for instance, from legal principle, a scire facias cannot properly issue. The latitude of construction in which the courts have indulged, as to the original act of 1798, has been often regretted as a principal source-of legal strife, uncertainty and difficulty. It would be useless to decide the effect of Meek’s discharge, for that cannot alter the disposition of the proceeds of the sale, however it may affect the vendee of the sheriff. The purchaser has paid for the interest Meek had in the land, whatever that may be, and the money having been brought into court, must be applied in the order of time of the liens existing upon the interest, whether real or supposed, according to their priority. It would be improper in this stage of the proceeding to inquire into the title of Meek. That is a question which must be decided in a suit between the trustees and the purchaser. Here it is of no consequence, whether the title is good or bad ; it is sufficient that the land was sold as the property of Meek. Jacob Meek having died, it is estopped to deny, that he had such an interest as was subject to the lien of judgments in the order of time. The property was seized, condemned and sold as the property of Henry Meek; and as such, the proceeds must be distributed among the creditors, without regard to his title. Judgment affirmed.