Groves's Appeal

68 Pa. 143 | Pa. | 1871

The opinion of the court was delivered,

by Sharswood, J.

At common law, following the original feudal principle, land could not be taken to pay the debts of the owner, and hence judgments were not liens. “ At common law” says Mr. Price, in his valuable treatise on Limitation and Liens, “ a judgment was not a lien upon lands, but the lien resulted in England from lands being subjected by statute to be taken in execution; and from this right the land was held bound from the date of the judgment. The first of these, the 13 Edw. 1, de mercatoribus, subjected to liability the lands of the debtor into whose hands soever they came after the statute acknowledged; and by 13 Edw. 1, ch. 18, the elegit was given, by which writ the sheriff delivered to the plaintiff one-half of the debtor’s land until the debt should be levied: 3 Bae. Abr. Execution A. And when our ancestors subjected all the debtor’s lands to execution for debt, this lien of the judgment was held to bind all the debtor’s lands:” Price on Lim. 276; Reed’s Appeal, 1 Harris 479.

To consider then the order of the court below of February 12th 1866, as a lien upon the land of James Ruddy, we must have the authority of some statute.

No doubt the Court of Common Pibas, in which was pending the proceeding instituted by the wife for a divorce, had power to make such an order and to enforce it by attachment. It is a necessary incident to the jurisdiction to decree a divorce. So all the interlocutory orders as well for the payment of costs and expenses as of interim maintenance pending the libel, have been, regarded as well in the ecclesiastical courts in England as in-common law courts specially vested with the jurisdiction in this country: Melizet v. Melizet, 1 Parsons’ Sel. Cas. 78; Graves v. Cole, 7 Harris 173; Breinig v. Breinig, 2 Casey 161.. It certainly, however, is not a judgment upon which an execution, could issue, and it has not been pretended that there is any statute which expressly confers upon it the privilege of a lien. The Act of Assembly of April 15th 1845, Pamph. L. 455, gives, the incidents of lien and execution to the allowance of alimony made upon a decree of divorce a mensd et thoro, but no possible construction can extend its provisions so .as to embrace any interlocutory order the court may make. It is probable, however,, that the court below considered that the act entitled, “ An Act to make decrees for the payment of money in equity proceedings liens upon real estate, with the right to revive or continue the liens of the same by writ of scire facias,” passed March 29th 1859, Pamph. L. 289, reached the case. But the order now in question cannot, we think, be construed to be “ a decree in equity for the payment of money.” That act is confined to decrees in equity — or as they are termed in the title, in equity proceedings —in the proper technical sense; and this is manifest from the language used that the lien shall be “ with the same force and effect as the lien of judgments rendered by and in the common-law courts of this Commonwealth.” Decrees by courts in equity, are put on the same footing as judgments in the common-law courts. The construction which would extend these words further would comprehend every order made by a court of common law for the payment of money in the exercise of its original functions, or those superadded by statute; as for example on an attorney to pay over money to his client, or upon its own officer to pay money in court to a suitor. The legislature have not so said and did not so intend.

It follows, that the first assignment of error is sustained; and this renders the consideration of the other unnecessary.

Decree reversed, and now it is ordered and decreed that the distribution as first reported by the auditor below, October 26th 1868, be and the same is hereby confirmed, and directed to be made accordingly.