Vitry ex rel. Vitry v. Dauci

The opinion of the Court was delivered by Gibson, C. J. Being unshackled by danger of disturbing titles, it is our duty to interpret the statute according to its obvious intent. To ascertain the object which the legislature designed to accomplish, we must look to the mischief and the remedy. Debtors had been prejudiced, and purchasers perplexed by neglect of judgment creditors to enter satisfaction of record when actually obtained; and the legislature interfered so far as to command the creditor to acknowledge satisfaction within a specified period after request made. This remedy being found inadequate, and the legislature declaring that the provision theretofore “ made for preventing the risk and inconvenience to purchasers of real estate by suffering judgments to remain an indefinite time without any process to continue or revive the same, hath not been effectual;” do what ? Direct the party to give notice by process of scire facias, or execution according to the stat. Westm. 2? Not at all. Had that been the sum of the matter, they would have stopped short with the first section, which declares that no judgment [13] shall be a lien for more than five years, unless the plaintiff, within that time, sue out a scire facias to revive it: instead of which, there is in the succeeding sections a mandate that "the writ be pursued to judgment, the form of which is directed to be, not that the plaintiff have execution, but that ibe original judgment be revived for another term of five years. The renewal of the lien, therefore, is by virtue of the judgment of the court, the old lien continuing in the mean time, at least to give the plaintiff a reasonable opportunity to prosecute his writ to its consummation. We are not going to say that nothing less than a judgment formally pronounced will be available. On the contrary, we have held a judgment by consent in an amicable scire facias, to be a compliance with the spirit of the law; and there would be little difficulty in maintaining that any confession or agreement that the lien endure for the specified period, is within its purview. Now in directing the mode of proceeding, and the form of the judgment, the legislature evidently contemplated something more than the bare issuing and returning of the writ. The object was to furnish record notice to purchasers, by compelling the judgment creditor to obtain a judicial recognition of his lien, at least once in every successive period of five years. The design was not to suspend the presumption of payment, which arises from lapse of time, but to make it conclusive, if not rebutted within the specified period, by judicial decision or something equivalent. No information would be derived by a purchaser, from a scire facias returned, but not prosecuted at the end of, say, eighteen years. In fact the presumption would be stronger than if no writ had been issued, inasmuch as the creditor, having taken a step towards the end of the law, would be less likely to stop short without having obtained satisfaction, than one who had manifested no disposition to stir in the matter at all. Judgments on which executions had issued, were in fact more frequently satisfied, than those on which the creditor had reposed as a security. An unsatisfied execution was never suffered to remain in the sheriff’s hands; but after satisfaction had, the creditor never took the trouble to have the writ returned. Would there not be an equal probability of payment, where any other judicial writ had been returned, but apparently abandoned'! The natural presumption of the law is, that every judgment is satisfied within a year and a day. The same presumption is applicable to a scire facias under the stat. Westm. 2, which is not an original action, but process to continue and have execution of the judgment, (2 Sellon’s Pr. 175), and this species of scire facias also, becomes a nullity if it be not prosecuted within the year and a day, (id. 277.) In conformity to long practice, we have held that the party, here, is not necessarily, as in England, driven to a new writ; but process thus delayed has never been supposed to prevent the presumption from lapse of time, from running in favour of purchasers. Certainly the legislature has not said that the return of a scire facias shall be notice; and it would have let in the very mis [14] chief intended to be prevented, if it had. The object in view was to protect purchasers from stale incumbrances, and the means of accomplishment was to make the existence of the lien, a matter of judicial ascertainment in successive periods of five years. But according to the construction contended for, this might be evaded and the matter left as it stood, by a mere turn of the hand. The judgment creditor would have nothing to do, but take the first step, which, according to the argument, would entitle him to a dispensation from all the succeeding ones. Surely the return of a scire facias was never intended to be an equivalent for the periodical revivals, which are plainly enjoined ; nor the negligence of the creditor, to place him on more advantageous ground than if he had complied with all the requirements of the law. The lien then may be lost by negligence; and a case like the present seems to be a fair subject for the principle of Cowden v. Brady, (8 Serg. & Rawle, 505,) where the lien of a testatum execution, which, like that claimed for this scire facias, would else have been interminable, was lost by neglect of reasonable pursuit. Where there has been an appearance and plea, it may be difficult to lay down a rule applicable to all cases; and it would be improper to attempt it here. Yet it may safely be affirmed that the plaintiff will be entitled to a liberal share of indulgence: possibly the rule of lis pendens may be applied with decisive effect. That, however, is not the case before us. The original judgment was entered of March term, 1818, and on the scire facias, which was returnable to December term, 1820, judgment might have been signed at March term, 1821; instead of which, it was, for no apparent cause, delayed till 1827 — the expiration of a period beyond that, for which the lien would have endured had it been revived at the regular time. What could a purchaser possibly infer from this backwardness of the plaintiff to avail himself of an advantage so palpably within his reach, but that satisfaction had been obtained ? The delay was gross negligence: and if the lien would be gone as to purchasers, it is equally gone as to intermediate incumbrancers. We are of opinion, therefore, that the judgment be postponed.