Appeal of Chapman

122 Pa. 331 | Pa. | 1888

Opinion,

Mr. Justice Paxson :

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.

The court sustained the auditor upon the second question with evident reluctance. Indeed, the learned judge has given us a very excellent argument why the plea of the statute should be sustained, but was constrained to decide the other way by McClintock’s Appeal, 1 Cent. R. 635 (3 East. R. 416). This was one of the line of cases following the ruling of McClintock’s Appeal, 29 Pa. 360, and which fell with the decision of Yorks’ Appeal, 110 Pa. 69. It is not necessary that we should reiterate what was said in the last named case ; it is still fresh in the minds of the profession, and we have no idea of departing from it in the slightest degree. We there pointedly overruled McClintock’s Appeal, McCandless’s Appeal, and the ■entire line of cases following them. The later McClintock’s Appeal, upon which the court below relied, was decided between the first decision in Yorks’ Appeal and the subsequent ■decision upon the motion for a re-argument. The latter is really the decision in that case, and it occurred two months •after McClintock’s App., 1 Cent. R. 635 (3 East. R. 416), was •decided. The latter case fell with the decision in Yorks’ Appeal.

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, incapable of coming in upon the personal estate, which is the primary fund for the payment of debts, could years afterwards be allowed out of the real estate in the hands of the heirs or devisees.

The decree is reversed at the costs of the appellee.