27 Del. 188 | Del. | 1913
delivering the opinion of the court:
This case was submitted to the court below for its opinion upon an agreed state of facts. The case as stated discloses that Simon Tuff, the plaintiff below, agreed to sell to Harry Cohen, the defendant below, a certain piece of land situate in New Castle County, State of Delaware, and to convey to him a fee simple title thereto, clear of all liens and incumbrances; that there appear upon the dockets of this court four judgments against one Joseph M. Pusey, entered either directly against him or against his personal representative, upon different dates in the years 1889, 1890 and 1891, which remain open and unsatisfied; that Joseph M. Pusey was a predecessor to the plaintiff below in the title to the lands agreed to be sold, upon which the four mentioned judgments were liens for periods of ten years each from their respective dates of entry; that the debts secured by the judgments were due and payable upon the dates upon which they were entered; that title to the land in question passed by devise from the said Joseph M. Pusey, incumbered with the liens of the said judgments, and ultimately became vested in the plaintiff below; that while letters testamentary were granted upon the estate of Joseph M. Pusey, no publication thereof was made, no inventory of the estate was filed and no account was passed by his executrix; and that as the judgments against Joseph M. Pusey were not paid out of his estate, of which the real estate in question was a part, the defendant below declined to accept title to and pay for the land as he agreed to do, upon the contention, first, that the land is still incumbered by the liens of the said judgments, and, second, that the land is still liable for the payment of the debts secured
To determine this question consideration must be given first to the character and legal status of the judgments upon which recovery might be attempted, and second to the procedure by which such attempt might be made.
The judgments have not only lost their liens by force of the ten-year lien law, but by force of the common-law presumption of payment after twenty years, which prevails in this state in lieu of any statute of limitation upon this class of record debts, the judgments, having been entered more than twenty years ago and the debts secured by them being more than twenty years overdue, are in law also presumed to be paid and satisfied. This presump
It is a genéral principle of law that the estate of a decedent, both real and personal, is liable for the payment of his debts, and the rights of creditors therein constitute a species of lien. In the absence of statutory or decisional law to the contrary, of which there is none in this state, it has been thought that resort to this liability might be had at any time and the creditor’s right thereto ’extends through all time. But the same principles of law that recognize the existence of such a lien, and of such a liability, further recognize that the lien may be lost or the liability discharged by neglect to enforce the one or to resort to the other. In this regard, courts have applied statutes of limitation to belated procedures either in probate courts or other courts when appropriate statutes existed, and when none existed, as in this jurisdiction, they have uniformly applied the rule that the procedure must be instituted within a reasonable time, otherwise the lien is lost and the decedent’s land is freed. The difficulty is in determining just what constitutes a reasonable time within which the creditor may exert his right and after which the decedent’s land cannot be reached in the hands of the heir or devisee.
The question seems to have arisen almost uniformly in probate courts, where, in revived administrations, applications have
The courts of other jurisdictions have held by analogy to their statutes limiting the liens of judgments to ten years, that an application for such an order made after that period is made at an unreasonable time (McCoy v. Morrow, 18 Ill. 519, 68 Am. Dec. 578; Unknown Heirs v. Baker 23 Ill. 484; State v. Probate Court, 40 Minn. 296, 41 N. W. 1033); and still others have fixed four years as the limit of a reasonable time by analogy to the statutes of those jurisdictions which limit a right of action against an administrator to four years (Ex parte Allen, 15 Mass. 58; Smith v. Dutton, 16 Me. 312; Heath v. Wells, 5 Pick. [Mass.] 142, 16 Am. Dec. 383).
Another jurisdiction, by analogy to the rules of Massachusetts and Maine, at one time limited the right to one year after the final settlement of the accounts of the administration (Dorman v. Lane, 6 Ill. [1 Gilman] 143); while, in New York, Chancellor Kent held that the right should be restricted to the year of administration (Mooers v. White, 6 Johns. Ch. [N. Y.] 360, 386, 387).
As there is no statute in this state limiting the time within which an administrator may apply for and be allowed an order to
In order to determine whether an executor of Joseph M. Pusev has lost the right to obtain an order to sell the land of his deceased defendant, for the benefit of his four judgment creditors, even before their judgments were presumed by the lapse of twenty years to be paid, and in order to determine with finality the question whether the land that was a part of the estate of Joseph M. Pusey “is not liable (now or in the future) to be taken for the payment of said (four) judgments,” it becomes necessary next to consider the present right of the plaintiffs in the judgments to
To this end it becomes necessary to again advert to the legal status of the judgments.
These four judgments were entered upon different dates in the years 1889, 1890 and 1891, being dates sufficiently close to one another and sufficiently remote from the present to bring each alike under the same rules of law. They were each due and payable when entered and when entered they were each liens upon the land of Joseph M. Pusey.
At any time during ten years next following their dates of entry, the lands upon which the judgments were liens could have been sold under execution process issued thereupon, but as no resort was made to this process, and as the liens were not renewed or continued by agreement or scire facias proceeding within the said terms of ten years, the lien of each judgment was lost ten years after it was entered. Though the judgments had then lost their liens, which are but one of the characteristics of judgments of this class, they still remained obligations of record against Joseph M. Pusey, and continued such until upon the expiration of twenty years from their respective dates of entry, nothing in the meantime having been done to re-establish their liens or to continue their existence, they were, by force of the common-law rule, presumed to have been paid and satisfied.
This presumption of payment after twenty years, however, may be rebutted in scire facias proceedings thereafter instituted, and the judgments be re-established as obligations against the defendant. But would the re-establishment of these judgments as record obligations also re-establish the lost liens thereof and refasten them upon the land of the defendant in the possession of his devisee or of her grantee? That is the qtnsdon.
If the land in question had remained in the possession of the devisee of the judgment debtor after the expiration of twenty years, and scire facias proceedings were thereafter instituted against her as terre-tenant, we hold, upon the principles of law
The meaning of this provision of the law in its relation to the facts of this case, and with reference to the use of the words “or terre-tenant or terre-tenants,” is that when the lien of a judgment is lost or interrupted, and it is thereafter revived by scire facias, it shall not “affect any prior bona fide purchaser * * * from such defendant,” or from any “terre-tenant or terre-tenants.” The devisee of the deceased defendant was a terre-tenant. She took the land by devise, incumbered with the liens of all four judgments. These liens had all been lost by June of 1901, and in July of 1901 she conveyed the land to a bona fide purchaser. If
The judgment below is affirmed.