4 Rawle 146 | Pa. | 1833
The opinion of the court was delivered by
The plaintiff claims as a purchaser at a sheriff’s sale under a judgment on a covenant to secure the payment of a rent charge, and the defendant claims a part of the premises as a purchaser from the covenantor. The deed by which the charge was created, contains not only a covenant to pay, but the usual clauses of distress and re-entry; so that the premises were clearly chargeable in a proceeding directly against them, and the principal question is, whether the same effect may be produced by proceeding against the person. Whatever may be the common law incidents peculiar to the mode of proceeding where there are distinct remedies against the person and the land, it is certain that we have attached them rather to the right than the remedy. Thus in M'Call v. Lenox, 9 Serg. & Rawle, 302, the lien of a judgment on a bond and warrant accompanied with a mortgage, was carried back to the date of the latter, so as to exclude the title of a lessee of the mortgagor prior to the judgment but subsequent to the mortgage: yet the lien of a judgment, as such, is commensurate with but the period of its actual entry. But in Bantleon v. Smith, 2 Binney, 151, the point before us was directly ruled, the plaintiff being suffered to take out of court the amount of his judgment on the covenant, in preference to prior judgment creditors: and this could be done only by subjecting the premises to the charge of the quit rent as a lien, without regard to the nature of the proceeding against the person as a remedy. In the case before us, therefore, the ground landlord was entitled to have execution of the premises in the hands even of an alienee. But it is said this could not be done without making the latter a party as a terre-tenant, to the action against his alienor. A terre-tenant is however not necessarily entitled to notice, as was determined in Young v. Taylor, 2 Binney, 228: in fact, his estate may be sold wherever the judgment creditor may proceed to execution without a scire facias. These premises therefore, passed by the sheriff’s sale, and were recoverable on the case stated.
Judgment affirmed.