| Pa. | May 15, 1833
The opinion of the Court was delivered by
This case has been brought before us by a writ of error to the judges of the court of common pleas of Northampton county: where The Commonwealth for the use of Rebecca Rhea was plaintiff; and Thomas M’Cracken and JDilman Kulb, the plaintiffs in error, with John Fulmer and John Hartzell, were defendants. The three latter were warned, as terre tenants of some of the lands upon which it was claimed, that the judgment upon which the scire facias was sued out was a lien. The material facts, as set forth in a case stated by the parties in the nature of a special verdict, were : that two suits had been brought in the court of common pleas of Northampton county in the name of the Commonwealth to August term 1817, against Jephthah Arison, Thomas M’Cracken and John Nelson ; one, No. 112, for the use of Samuel Rhea M’Kibbin and Jinn M’Kibbin, by their guardian William M’Kibbin, and the second, No. 113,
The amount or penalty of the bond was 12,000 dollars, and given on the 28th of May 1817, in pursuance of a previous decree of the orphan’s court of Northampton county, made upon the complaint of some of the legatees named in the will, that the executors were wasting and carrying off out of the state, from which they had removed themselves, the estate of the testator. These suits were instituted upon the bond by William M’Kibbin and William Rhea, for the use of their respective wards, to recover legacies coming to them under the will. On the 12th of November 1817, judgment by agreement of the parties was entered in each suit for “ the penalty of the bond, with leave to take out execution after the 18th day of May then next following, for the sum of 788 dollars and 92 cents, the principal and interest due, together with the interest accruing and costs of suit.” On the 3d of May 1820, William M’Kibbin, the guardian named in the first judgment, by his attorney in fact, William Rhea, entered on the record thereof, that he, as the “ guardian of the plaintiff, had received full satisfaction of that judgment, as it respected their claim on the judgment in the above case.”
Upon the 5th of June 1822, a scire facias was sued out, returnable to August term 1822, No. 37, said to be upon the judgment in the action No. 112 of August term 1817; but this writ of scire facias recited h judgment which never existed, and one altogether different from that which was entered in the suit No. 112 of August term 1817. The recital is, “ whereas, the Commonwealth of Pennsylvania for the use of Rebecca Rhea, heretofore in our court of common pleas of the county of Northampton, to wit on the term of August 1817, before Robert Porter, esquire, and his associates, then our judges at Easton, by the consideration of the same court, recovered against Jephthah Arrison, Thomas M’Cracken and John Nelson, late of the said county, yeomen, as well a certain debt of 788 dollars and 92 cents, lawful money of Pennsylvania, which to the said Commonwealth, for the use aforesaid, in our said court were adjudged for her damages which she sustained by occasion of the detention of that debt; whereof the said Jephthah Arrison, Thomas M’Oracken and John Nelson are convict; as by the record and proceedings thereupon in our said court, before our judges at Easton, remaining, more fully, appears.” And then, after further reciting that five years had nearly expired since the said judgment was obtained, and that the lien on
After these proceedings were had, Rebecca Rhea, the widow of the testator, who claimed a certain annuity under the will, commenced this suit, in which the judgment is now brought up for review, by suing out a writ of scire facias for her use, to August term 1826, upon the judgment rendered for 12,000 dollars, in the suit No. 112, already stated, to August term 1817. In this writ, after reciting the judgment as it appears on the record, and the bond and condition thereof upon which it was given, and so much of the will of the testator as to show the annuity which was thereby directed to be paid to her by the executors out of the estate of the testator in their hands; the arrearages of the annuity accruing from the 1st of April 1822 to the 28th of November 1825, amounting in the whole to 397 dollars and 87 cents, are set forth ; and the nonpayment of the same assigned as a breach. To this writ, which was put into the hands of the sheriff he returned, that he had “ made known to Thomas M’Cracken, one of the defendants, and to Dilman Culp, John Fulmer and John Hartzell, terre tenants ; and nihil as to Jlrrison and Nelson.” The land of which Hartzell was in possession, amounted to forty-one acres and sixty perches; and he claimed to be tenant of it in fee simple, by purchase from Thomas M’Cracken, one of the defendants, for the price of 1950 dollars ; and by deed of
Fulmer was in possession of twenty-four acres and one hundred and forty perches, and held by a purchase of the same from Margaret M’Cracken, for the consideration of 600 dollars paid to her, who, by her deed dated 12th of May 1823, sold and conveyed the same to him, under a title derived from Thomas M’Cracken and his wife, who, on the 16th of June 1819, by their deed, for the consideration of 1200 dollars paid to them by her, sold and conveyed the same twenty-four acres and one hundred and forty perches to her in fee.
Filman -Culp or Kulb is in the possession of one hundred and forty-six acres and thirteen perches ; and has become the tenant thereof in fee simple by purchase from John Nelson, one of the defendants in the original judgment, for the price of 1533 dollars and 75 cents, and holds the same by a deed of conveyance duly executed by Nelson and his wife, on the 10th day of April 1823. 500 dollars of the 1533 dollars and 75 cents, the consideration money inserted in the deed of conveyance, although acknowledged by the deed to have been paid, still remains unpaid by Kulb to Nelson. After the commencement of this suit, and while it was pending in the court below, a rule of the same was entered on the 1st of September 1827, to show cause why the writ of scire facias sued out, returnable to August term 1822, No. 37, should not be amended by the pradpc and record, so as to recite the sum for which the original judgment was entered ; and on the day of November following, this rule was made absolute, and an amended writ of scire facias filed.
From these facts, the court below gave judgment in favour of Fulmer and Hartzell, two of the terre tenants; but against M’Cracken and the other tenant Filman Kulb, who have sued out the writ of error in this case.
Four errors have been assigned, but three questions only are presented by them.
1st. Did the original judgment, entered in the suit No. 112, of August term 1817, for the penalty of 12,000 dollars, create a lien to that amount upon the real estate of the defendants lying within the county ? And if it did, 2d. Has any act been done to extinguish it; or has it expired by force of the act of 1799, limiting the lien of judgments? And 3d. Had Rebecca Rhea a right to sue out the writ of scire facias in this case upon that judgment of 12,000 dollars arrearages of her annuity, which did not accrue and become payable until long after the judgment had been obtained ?
As to the first question, this court is of opinion that the judgment entered for the penalty of the bond became a lien from its date, to the full extent of the penalty, or 12,000 dollars, upon the whole of the real estate of the defendants, which they then owned, lying within the county of Northampton.
Whether judgment entered for the penalty of a bond in such case
A bond, such as the one upon which this judgment of 12,000 dollars was entered, conditioned for the performance of several acts and things at different times, becomes forfeited as soon as the obligor fails or neglects to do the first act that is required by the condition of the bond to be performed; and the obligor is entitled, according to the principles of the common law, not only to sue upon the bond, but to recover a judgment and have execution for the whole amount of the penalty, if not paid. Gainsford v. Griffith, 1 Saund. 58, note (1).
After some time courts of equity interposed, and granted relief from the payment of the penalty: in some cases where it was large and the real injury trifling; and in all cases where the object of the penalty was to securé the payment of a less sum of money, which, if paid afterwards with interest, was considered in equity an adequate compensation for the injury which arose from the nonpayment of it according to the condition of the bond. See 1 Fonb. Eq. 151, note (a) ; 1 Fonb. Eq. 395 to 397; 1 Saund. 58, note (1). And before the statute of 8 and 9 Will. 30, cap. 2, came into operation, it was not competent for the plaintiff to assign, in an action of debt upon a bond with a condition for the performance of covenants dr other collateral acts, more than one breach; for if he had, it would have been bad for duplicity; and, again, because the bond was forfeited as much by the breach of one. covenant, or failure to perform one act, as of all the covenants or acts required to be done. 1 Saund. 58, note (1); Manser’s Case, 2 Co. 4, where Sir Edward Coke cites, 21 Ed. 4, 6, a, b, for the first branch of this proposition. The judgment, then, which was given for the plaintiff, upon the bond for the penalty, was final ancl complete, whereby not only his right to recover, which is all that an interlocutory judgment established, but the amount, is fixed and ascertained, which gives to it the character of a final judgment, and makes it binding, to the full amount for which it is entered, upon the real estate of the defendant. Thus stood the case of a bond conditioned for the performance of covenants or of collateral acts, until the passage of 8 and 9 Will. 3, cap. 2, which has been adopted in this state, but has in no wise changed the nature or character of the judgment that is to be entered, which must still be for the amount of the penalty, the same as before the passage of the statute. By the eighth section of it, the judgment, which is entered for the whole penalty, is only to stand as a security for the damages actually sustained, which are to be assessed by the jury that shall try the cause; or in case of a judgment had upon demurrer or by default, it is also to be entered for the whole amount of the penalty, but to remain as a security for the damages actually sustained, which the plaintiff,
In addition to this, the statute expressly declares, that, notwithstanding the damages, costs and charges shall be fully paid, yet “ in each case the judgment shall remain as a further security, to answer to the plaintiff such damages as he may sustain by any other breach of covenant contained in the same indenture, deed or writing; upon which the plaintiff may have a scire facias upon the said judgment against the defendant, his heirs, terre tenants, executors or administrators, suggesting other breaches of the said covenants or agreements, and to summon him or them respectively to show cause why execution should not be awarded upon the said judgment.” Now, unless the judgment that is entered for the penalty be held to bind the real estate of the defendant, this clause of the statute, which directs that it shall remain as a further security, would be eluded, and rendered inoperative ; for it is only by its becoming a lien upon his real estate that it can afford any real substantial security.
As to the second question, it has been contended, that the original judgment of 12,000 dollars was extinguished on the 3d day of May 1820, by the satisfaction which was then entered by the guardian of those who caused the suit to be instituted ; but that was merely an entry of satisfaction for the damages which had been assigned, by the convention of the guardian and the defendants, as the amount or sum of money that was coming to his wards, and not a satisfaction of the judgment for the penalty. The party who entered that satisfaction, had no power to enter a satisfaction that would have extinguished the judgment for the penalty, go far only as he, or his wards for whom he was acting, had an interest in and a right to an execution upon it, to compel payment of the damages to which they were
The scire facias which was issued to August term 1822, No. 37, did not recite this judgment at all, and can not, therefore, be considered as coming within the provisions of the act. Dilman Kulb became a purchaser of the land in his possession, and received a deed of conveyance for it on the 10th of April 1823, when the five years had run and the judgment of 12,000 dollars had ceased to be a lien on it. The attempt that was made to amend the scire facias of 1822, can not avail. It shows, however, that in the opinion of the counsel who moved for it, as well as that of the court that granted it, that the writ was radically defective, and that the judgment entered on it was insufficient to preserve and continue the lien, without an amendment, which changed by far the most important feature of it. The rule asked for, was to amend the writ so as to make it accord with the praecipe that was given for the issuing of it, and the record of the judgment. Now it does not appear that the scire facias was variant in any particular from the praecipe. It was, therefore, not authorized by it. Beside this, it must be apparent to every intelligent mind, upon mature reflection, that it was out of all time to make such an amendment for the purpose of resuscitating a lien which was clearly dead. More than ten years had elapsed from the date of the original judgment, at the time when the amendment was applied for; and more than five years had run around from the date of the judgment entered in the scire facias which was amended. The lien of every judgment is limited by the act of assembly already mentioned to five years, unless revived by scire facias as therein directed. Now whether the lien of a judgment be kept alive and still in force, is a
As to any lien that may have existed under the judgment in the scire facias of August term 1822, No. 37, at the time Kulb purchased it, if any was created by it, it has been suffered to expire, five years having passed by without any attempt to revive it. Hence, it does not appear that there is any colour for charging Rebecca Rhea's claim upon the land of which Kulb is tenant in any way whatever.
With respect to the third question, we have seen already in that part of the statute of 8 and 9 Will. 3, ch. 2, which has been recited, that provision is expressly made for the assignment and, recovery of damages which shall arise from breaches happening after the entry of the original judgment. That as often as such breaches shall take place, the plaintiff is thereby authorized and enabled to sue out a scire facias upon the judgment, suggesting the new breaches; and the damages for and on account thereof, are to be assessed in like manner as for the first in the original proceeding—in which no other judgment is necessary to be rendered than the usual one in a scire facias, of an atoará of execution. This, it may here be observed, shows also the final and definitive character of the judgment that is given in the first instance for the penalty of. the bond.
In the note of Sergeant Williams so often referred to, 1 Saund. 58, note (1), all this is most explicitly declared and set forth ; and like
The judgment of the court below awarding execution against the land in the possession of Dilman Kulb is reversed, but the judgment against Thomas M’Cracken is affirmed.