28 A.2d 453 | Pa. Super. Ct. | 1941
Lead Opinion
RHODES, J., filed a dissenting opinion.
Argued October 28, 1941. On May 3, 1935 plaintiff entered a judgment of record against Gottlieb and Emma Krach. Thereafter, by deed recorded July 18, 1939, these defendants conveyed a part of their land, encumbered by this judgment, to George F. Krach. On June 7, 1940, more than five years from the date of the original entry, plaintiff issued a scire facias to revive the lien of the judgment naming defendants Gottlieb and Emma Krach as judgment debtors and George F. Krach as terre-tenant. To the scire facias the terre-tenant filed an affidavit of defense in which he contended, as a matter of law, that by the failure to proceed within five years from the date of her judgment, plaintiff has irrevocably lost her right to revive the judgment as a lien against the land conveyed to him. The lower court refused to adopt that view; the terre-tenant was given leave to file an affidavit of defense to the merits, failing which, judgment was directed to be entered against him and his land. The terre-tenant appealed.
The controlling statute, the Act of April 16, 1849, P.L. 663, 12 PS 872, was not repealed by the Act of June 1, 1887, P.L. 289, 12 PS 868. These statutes, and the effect of each upon the other, have been a prolific source of controversy, but their interpretation has crystallized into definite general rules which make for uniformity and consistency. The two acts are not irreconcilable or repugnant. The act of 1849, in the interest of open, fair dealing, was intended to afford protection to creditor, debtor and purchaser without imposing hardship on any one of them. Wetmore v. Wetmore,
A terre-tenant is one who has purchased an estate mediately or immediately from the debtor while it was bound by a judgment.Dengler v. Kiehner,
The Act of 1849 provides that the period of five years during which the lien of the judgment continues, shall commence to run in favor of the terre-tenant only from the date he records his deed or goes into possession. And though the act, in so providing, refers to cases where "a judgment has been or shall be regularly revived between the original parties," our Supreme Court in construing the intent of the act, adopted a construction in Uhler v. Moses, supra, which has the effect of "a rule of property." Farmers N.B. T. Co. v. Barrett,
In Kefover v. Husted, supra, the following principle was affirmed: "Unquestionably, the obvious intent of *387
this act (1849) was to continue the lien of the original judgment against the land of the debtor by a revival against him alone, unless the purchaser or terre-tenant put his deed upon record, or was in actual possession, in which cases the five years commence to run in his favor from the date of recording the deed, or from the date he took possession of the land, personally or by his tenant." In that case there was no revival between the original parties though the lien had been continued by the death of the judgment debtor. Judgment on a scire facias against the terre-tenant within five years from the recording of his deed, but more than five years from date of the original judgment, was sustained. In Farmers N.B. T. Co. v. Barrett, supra, it was held that a judgment creditor "has at all times five years fromthe recording of the terre-tenant's deed to revive as againsthim" and that the terre-tenant need not be joined in a scire facias against the original debtor. In First Nat. B. T. Co. v.Miller,
In the present case, since the judgment was a lien when the terre-tenant bought the land, it follows that the revival proceedings, brought within thirteen months after he recorded his deed, were timely. It is unimportant that in the meantime the lien of the judgment as to the original judgment debtor had expired, or that it was later revived by scire facias as a new judgment against land then owned by him.
Judgment affirmed.
Dissenting Opinion
I am unable to agree with the conclusion set forth in the majority opinion. The Act of April 16, 1849, P.L. 663, Sec. 8, 12 Pa.C.S.A. § 872, is still in force. Kefover et al. v. Hustead et al.,
I would therefore reverse the judgment of the court below and direct that judgment be entered in favor of the terre-tenant.