Bryan v. Jones & Laughlin Steel Co.

238 Pa. 191 | Pa. | 1913

Opinion by

Mr. Justice Stewart,

The validity of the execution process under which the ' real estate of Henry A. Bryan was sold to defendant’s predecessor, does not depend in the slightest degree upon the regularity of the judgment obtained in the revival proceedings. The execution issued on the original judgment. True, this judgment, except as revived, was not a lien upon the land sold, inasmuch as the land had been acquired subsequent to its rendition; but it was notwithstanding sufficient to support execution process; and when under such process the land was levied on, it thereby became subject to the lien, not of the judgment, but of the levy. The fact that more than five years had elapsed from the rendering of the judgment and the issuing of the execution did not render the process void. Certainly, the defendant was entitled to be warned by scire facias before the seizure of his land in satisfaction of the debt; but, because this provision in the law, as said in Hinds v. Scott, 11 Pa. 19, is for the debtor’s personal protection, he may refuse or neglect to take advantage of it; and where such refusal or neglect to assert his privilege continues until his property has been seized and sold in satisfaction, of his debt, he is definitely concluded from thereafter asserting his privilege. In Hinds v. Scott, supra, this very question was before the court, and it was there settled once for all that where one suffers his land to be sold upon an execution the judgment upon which it issued being more than five years old and not revived by scire facias, neither he nor those claiming under him can afterward, in a collateral proceeding, be permitted to call in question the validity of the sale. That case governs this, and it is, therefore, unnecessary to inquire into the regularity of the revival proceeding, since without revival the execution process under which the land was sold was entirely adequate to support the sale that followed.

The assignments of error are overruled and the judgment is affirmed.