69 Pa. 295 | Pa. | 1872
The opinion of the court was delivered, January 9th 1872, by
It is provided by the 24th section of the Act of February 24th 1834, Pamph. L. 77, that “ no debts of a decedent, except they be secured by mortgage or judgment, shall
The court below were right, we think, in holding that the order of the Orphans’ Court for the sale of the real estate of the decedent, though within the five years, did not extend the limitation of the lien, and that after that period, and before the sale, the five years having expired, the lien of the debts was gone as against the heirs at law. This results very plainly from the language of the act and from the principle established in Maus v. Hummel, 1 Jones 228, where it was held that when suit is brought within the time, yet if the land is not taken into execution within five years from its expiration, it vests absolutely in the heirs, and that a purchaser at a sheriff’s sale, subsequent to such expiration upon a proceeding commenced within the first seven years (as it was then — five now) acquires no title. It by no means follows, however, that the purchaser at the Orphans’ Court sale in this case did not obtain a perfectly good title — since the court had undoubted jurisdiction to order the sale without limitation of time by virtue of the existence of a judgment entered against the decedent before his death, and which appeared of record to be unsatisfied — the lien of which is as against his heirs indefinite. The purchaser was bound to inquire no further.
It only remains to consider whether the appellant, having presented his claim before the auditor appointed to report distribution of the proceeds of a sale made under a previous order of the Orphans’ Court within the five years, and had ay>ro rata dividend awarded to him, and confirmed by the court, his lien on th.e real estate of the decedent was .thereby kept alive and continued. The words of the act, as we have seen, are, “ unless an action for the recovery thereof be commenced and duly prosecuted.” These are strictly technical words, and according to the well established canons of interpretation, should be received in their technical signification : 1 Black. Com. 59, note. It is now, however, contended, although it is a ground which does not appear to have been taken in the court below, that the claim before the auditor was an action commenced against the administrator, and duly prosecuted to a decree — that the Act of Assembly does not speak of actions at common law — or in a court of common-law jurisdiction. Any querela, -any lawful complaint in any competent court, will literally answer the words of the act. At all events, if not within the letter it is within the spirit of the law. The appellant has given notice of his debt against the estate in a mode pointed out and authorized by law. There is great plausibility in this contention. We should remember, however, that the principal
Decree affirmed, and appeal dismissed at the costs of the appellants.