122 Pa. 331 | Pa. | 1888
Opinion,
This was a question of the statute of limitations. The note-in controversy bears date July 10, 1876, and is payable eighty days after date. Unless taken out of the statute it was barred October 1, 1882. The maker died November 18, 1880. The-order of sale for the payment of debts was granted May 5-, 1885, and the sale was confirmed .on the 8th of September following. The note was presented to the auditor appointed to-make distribution, who allowed the claim upon two grounds,, viz.: (a) That the note was taken out of the statute by reason of a credit appearing on the back of the note; and (5) Because the note remained a lien upon the real estate of the decedent for five years after his death, and the claim must be-allowed out of the proceeds of the sale of the real estate, regardless of the fact whether any payments were made on the note or not. See his second conclusion of law. Upon exceptions filed, the learned court below reversed the auditor upon the first ground, but sustained him upon the second, and decreed the payment of the note out of the fund.
The learned judge was clearly right as to the first proposition. It is true the auditor found the fact that the payment of the.$ 10 in question was made upon the note in controversy. He found it, however, upon insufficient testimony. There was not enough to submit to a jury. This question does not require discussion.
In the case in hand, however, much stress was laid upon the act of February 24, 1834, which provides that the debts of a •decedent shall remain a lien upon his real estate for five years •after his death. It is to be observed, however, that the act of 1834 did not create a lien. It merely limited the extent of a lien, at one time indefinite, and by the act of 1794 restricted to seven years, to the period of five years. It will be noticed, moreover, that the act refers only to debts due by a decedent; it has no reference to mere claims against his estate. A debt established or admitted is a lien against the real estate of a decedent for the period of five years after his decease; a mere claim is not a lien until first established as a debt. When, therefore, a claimant demands the benefit of the statutory lien, he must first show that he has a debt. A debt barred by the statute is no debt at all, and it is begging the question to say that it was a debt at one time, or that the statute had not fully run at the death of the decedent. In the latter case the statute may be tolled, and the lien preserved by commencing a suit within the statutory period. It would be an anomaly to hold that a.claim barred by the statute and, therefore, inca
The decree is reversed at the costs of the appellee.