Penn v. Hamilton

The opinion of the Court was delivered by Gibson, C. J. The principle of Trevor v. Ellenberger, though not fully expressed in the opinion delivered, will be found to cover the whole field of the controversy. It was admitted that the lien of creditors ón a decedent’s land, springs exclusively from the intestate laws which make his estate a fund for payment of his debts ; insomuch, that nothing is added or gained by a judgment against his representatives; and that the act of 1798, by which is provided a peculiar scife facias to prolong the lien of judgments inter vivos, is not directly applicable to it. But it was distinctly asserted that a decedent’s lien, also, might be prolonged by scire facias; and the construction by which that result is obtained, is the matter to be shown. The act of 1797, which gives rise to it, provides that no debts but such as are secured by mortgage, judgment, recognizance or other record, shall remain a lien on the lands of a decedent longer than seven years from his death; “unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executors or administrators, within the said period of seven years; or a copy or particular statement of any bond, covenant, debt or demand, where the same is not payable within the seven years, shall be filed, within the said period, in the office of the prothonotary of the county where the lands lie.” It is evident from the context, that the excepted liens are such as have been acquired in the decedent’s lifetime; and that they are thus mentioned to preclude the implication of an-intent to- abridge or impair them. The difficulty in Trevór v. Ellenberger, was to determine when an action should be “duly prosecuted ;” and it was thought not to be so, within the.meaning of the act, when prosecuted to judgment merely, because that construction might extend the lien to some twenty or thirty years without a further act done, as the presumption of payment from lapse of time would run but from the rendition of the judgment, which might be several years after the expiration of the original limitation. The law is.a remedial one, and we thought ourselves bound to make such a construction of it, liberal though it were, as would best advance the remedy and repress the mischief. In legal estimation, judgment is doubtless the end of prosecution ; but that can scarce be thought the sense in which the words were used by the legislature. That the inconvenience of stale liens was beginning to be felt, is evident not only from the act in question, but from the act of the year following, for the limitation of the lien of judgments ; and we cannot suppose that the legislature, proceeding systematically to the removal of it, intended to pay respect to any discriminating circumstance depending upon origin. It was of little moment as to consequences, whether the lien had its root in a judgment, or was but dependent [59] on one for its continuance, as the mischief from an indefinite duration of it would be the same ; and it may-appear singular, that the provisions of the act of 1798 were not extended to a judgment in prosecution of a decedent’s lien, in terms. The omission is doubtless attributable to inadvertence in respect to the fact, at that time not a very obvious one, that a judgment against a’decedent’s representatives, is not a lien on his lands, the lien created by the intestate acts being exclusive of it. In restraining the lien of a judgment, the legislature certainly did not purposely omit a like provision for a lien depending on a judgment for its continuance, merely because its origin is elsewhere. Such a lien, thoughnotwithin theletter,is certainly within the equity of the act; and if the intent were, as I think it was, to compel the creditor to give notice to purchasers by the institution of an action on the principle of lis pendens, without, at the same time, compelling him to sacrifice the land, and perhaps his debt along with it, the instant he should entitle himself to execution, the period which the lien shall be suffered to endure afterwards cannot be left to a jury, under the circumstances, with either certainty or safety; it must be a deterfninate one, and measured by the court as a conclusion of law. But without resorting to parallel provisions for cases standing in the same mischief, it will be impossible to extract a definite rule from words of such indefinite import, as “duly prosecuted.” When we find in a series of subsequent enactments on the basis of circumstances essentially the same, a particular period assumed as the reasonable and proper one for the duration of a lien depending on a judicial recognition of the debt—as five years for the lien of a judgment by the act of 1798, and the same period for the lien of a testatum scire facias registered in the proper county by the act of 1823—it seems reasonable to adopt it as an interpretation indicated by the legislature itself, in giving, as we are compelled to do, a determinate meaning to words which are not susceptible of a fixed construction, without resorting to this or some other assumption equally arbitrary. The most plausible objection to it is, that to apply the specific provisions of a statute to cases merely analogous, partakes apparently of legislation as much as construction: But it is the principle and not the specific provision that is applied by adoption as a rule of construction ; and it is to be remembered, that principles borrowed from statutes of limitations, to which class the act of 1798 certainly belongs, have been frequently applied by the courts with decisive effect, if not as a positive bar, to subjects not within their purview; for instance in corporeal rights which are barred, in analogy to the 21 Jac. 1, by an adverse interruption of them for twenty years. In the same way, the British statutes of limitations have been adopted in practice by their courts of chancery, though expressly confined by the terms,of their enactment to the courts of common law; yet this has never been charged asa judicial encroachment on the prerogative of the legislature. If, then, the principles of such a statute may be engrafted on a ride of equity or of the common [60] law, why may they not be resorted to for the interpretation of an ambiguous clause in a preceding statute in pari materia ? The lien of a judgment itself, though derived from the statute of Westm. 2, the original and still the general law in England for taking land in execution, depends on a provision borrowed from the statute de mercatoribus passed a few months later, which, in creating the recognisance called a statute merchant, declared that the conusee should have “ execution of all the lands that were in the hands of the conusor, the day of the recognisance made, into whose hands soever they come after, either by feoffment or otherwise”—a clause that is not in the original statute, or in our acts for taking land in execution. Yet it is the origin of the lien attributed to judgments in the construction of that statute, as well as our own. In all cases like the present, where a court is called on to affix a definite meaning to words which were understood in no definite sense by those who used them, it is the safest and most reasonable course, to resort to their subsequent provisions for cases in the same circumstances. Taking then, the act of 1798 as a guide to the construction of the clause in question, it results, that in order to preserve a lien on the estate of a decedent beyond the limitation of seven years, an action must be prosecuted to satisfaction, or the judgment be revived as in other cases. To accomplish the latter, a resort to the scire facias instituted by the act of 1798, is not only unnecessary, but would be improper, for no such writ was known to the law when the clause in question was enacted; and the writ given by the statute of Westm. 2, being adequate to the purpose, ought rather to be used.. What remains then, is to determine the point of time from which the further limitation consequent on a revival, is to run. In Trevor v. Ellenberger, it was said, that if the creditor sue out a scire facias immediately before the expiration of the seven years, the lien will endure for five years longer; from which it might be inferred, that it was supposed to run from the time of revival, and not from the end of the original period; nothing of which was intended, for, counting from the judgment, the demand, in that case, would have been barred. It might be otherwise were the character of the lien changed or a new one created; but as nothing more is done than to prevent the lapse of the old one, the second period is necessarily to be computed from the end of the seven years. Such then being the construction put on the act of 1797 in Trevor v. Ellenberger, how does it dispose of the case before us 1 The decedent died in 1804: the bonds were sued to November term 1806, and judgments recovered in 1807 were successively revived in 1812 and 1821; and executions issued in 1829 and 1830, were levied on the lands in question. It is an immaterial part of the case, that these lands had passed from the devisees of the decedent to purchasers, as the lien would have been gone without it. It was indeed taken for granted in Bruch v. Lantz, 2 Rawle 392, that the limitation was not designed to be a protection for Volunteers; but the point has since [61] been directly considered in Kerper v. Hoch, 1 Watts 9, and a contrary principle established against the inclination of my opinion, which I shall however be the last to question. In the case before us, judgment was properly given for the defendant. Judgment affirmed.