Clippinger v. Miller

The opinion of the court was delivered by Rogers, J. Two questions arise in the case stated. First, whether the revival of a judgment, by Amicable scire facias post annum et diem, creates a lien upon the property of the defendant, .acquired after the original judgment. And, secondly, whether a scire facias continues the lien upon the land, the terre tenants not having been made parties, no writ having been served upon them. The first question has been virtually decided in Berryhill v. Wells, 5 Bin. 56, and in Fries v. Watson, 5 Serg. & Rawle, 220. In some respects we have departed from the English law, and the difference has arisen from the construction of an act of assembly, making interest an incident to a judgment. The cases referred to, go on the ground, that a judgment on the scire facias is not a mere revival of the original judgment, but partakes of the nature of a new judgment, and the court assimilates it to the case of a judgment rendered in an action of debt on the original judgment. We cannot perceive any good reason why a difference in the remedies should make any difference in the right. If the plain tiff had brought an action of debt, instead of a scire faciasythe land would have been bound. And we believe a judgment on the scire facias places the plaintiff on precisely the same footing. In strictness it is true, a scire facias is not an action, but the object of the two remedies is the same — the obtaining the fruits of the original judgment. It is in the nature of an original action; and to say, that as to the recovery of interest, it should be considered as a judgment in an original action, but not so in other respects, would be introducing a distinction, attended, as far as we can perceive, with no beneficial results. By tenants, is meant the owners of the fee-simple, and by occupiers, those who come in under them. 2 Saund. 7 n. 9. And in this sense, the terms are used in the third section of the act of 1798. [72] When the tenant in fee is known, and within reach of the process of the court, the legislature intended he should have notice: on him the scire facias should be served, for he, and he only, is entitled to notice, who will be prejudiced by the judgment. The act of assembly is in the alternative. The scire facias must be served on the terre tenants or occupiers of the land; by which expressions, I do not understand the legislature to mean, that terre tenants and occupiers are one and the same, but as intending to provide for the service of notice, on the persons occupying the land, where the owner of the fee simple is unknown, or not within reach of the process of the court. The tenants do not malee any complaint of want of notice; if their rights were affected, they would be entitled to a hearing; but the judgment would cease to be a lien, only so far as their interest was concerned. A contrary exposition of this act, would be attended with great inconvenience; for if you were obliged to serve notice, at the risk of losing your lien, on all the occupiers of land bound by a judgment, (which is a general lien on all the real property a man possesses,) it would be extremely troublesome and very expensive. And in accordance with this opinion, has-been the universal understanding. It has not been considered necessary, where there has been no transfer of the property by the defendant, to bring in any person but the defendant himself. When there has been an alienation or sale of the property, it is right that the party to be affected should have an opportunity of making defence, pro interesse suo; for preventing the risk and inconvenience to purchasers of real estate, seems to have been the principal object of the act of the 4th April, 1798. I cannot perceive any similarity between this case, and the case of the Philadelphia Bank v. Craft, 16 Sergt. & Rawle, 348. There it was contended, that it was a final judgment, without any sum being ascertained, either directly or by reference- We did not mean to interfere with judgments which referred to a sum ascertained and fixed. By applying the maxim, id cerium est, quod cerium reddi potest, there is no difficulty in ascertaining the amount found in the judgment on the scire facias. The application to the court to be substituted, &c. we think premature, as the persons to be affected by it, are iio parties to this, proceeding. Judgment affirmed.