Brown's Appeal, No. 263

No. 263 | Pa. | Jan 5, 1880

Mr. Justice Sterrett

delivered the opinion of the court,

It is conceded that the judgments against the appellee, entered or revived within five years before the sheriff’s sale of his real estate, are entitled to be fully paid out of the proceeds. After satisfying these judgments there remains a surplus, in regard to which the present contention has arisen between the appellant, whose judgment was entered more than five years before the sale and was not revived in the meantime, and the defendant in the judgment. The former claims that as against the defendant his judgment is entitled to the surplus. The appellee, defendant in the judgment, contends that it ceased to be a lien before the sale, not only as to subsequent judgment-creditors but also as to himself, and hence the surplus should be awarded to him.

As to creditors whose judgments were either entered or revived within five years before the sale the judgment of appellant had undoubtedly ceased to be a lien, but as between him and the judgment-debtor the lien continued notwithstanding the lapse of more than five years from the entry of the judgment without revival. When the debtor continues, as did the appellee in this case, to be the owner of the land originally bound by the judgment, and the same is sold on execution against him, the judgment-creditor has a right to participate in any surplus that may remain after satisfying judgments entered or revived within the five years. This appears to be the construction heretofore given to the Act of April 4th 1798. The mischief intended to be remedied by the act did not extend to the defendant. Prior to the passage of the act the lien of a judgment on real estate owned by the defendant at the date of its rendition was unlimited as to time, and the creditor might have execution of the land in the hands of his debtor at any time while the judgment remained uiipaid. This indefinite lien was limited by the act to a period of five years, “ but only in favor of purchasers from the debtor and judgment-creditors in his lifetime; it left it without bound or limit as to everyone else:” Aurand’s Appeal, 10 Casey 151; Fetterman v. Murphy, 4 Watts 424" court="Pa." date_filed="1835-09-15" href="https://app.midpage.ai/document/fetterman-v-murphy-6311504?utm_source=webapp" opinion_id="6311504">4 Watts 424. In the latter case it is said that the second section of the act, which provides that “ no judgment hereafter entered in any court of record within this Commonwealth shall continue a lien,” &c., has no relation to the defendant in the judgment. It leaves the rights of the plaintiff, as to him, precisely as they were before; but, if the creditor fails to revive his judgment, according to its provisions, the act limits his right to five years against purchasers or those who acquire subsequent liens on lands originally bound by the judgment.

It follows that the learned auditor was right in appropriating the surplus fund as he did, and his report should have been confirmed.

Decree reversed at the costs of the appellee, and it is now ordered and decreed that the report of the auditor be confirmed, and the fund in court distributed in accordance therewith.