Groyer v. Boon

124 Pa. 399 | Pa. | 1889

Per Curiam:

No objection was made to the judgment obtained against the administrator of William L. Kitts upon the scire facias. If the executions and sale had been upon this judgment, it is conceded such sale would have been regular. A scire facias was subsequently issued under the act of 1834, to bring in the widow and heirs. Three of the heirs were minors and a guardian ad litem was appointed to protect their interests. The guardian does not appear to have been formally made a party, nor was he named in the scire facias. The minors, however, are parties of record and named in the writ. It was alleged that the said minors were over fourteen years of age and that service should have been made upon them, as well as upon the guardian ad litem. The return of the sheriff was not given, and wo cannot say whether service was made upon the minors. Judgment was taken against the administrator, the widow, and the guardian ad litem A fieri facias was issued upon this last judgment against the defendants named therein, and a levy made upon all the undivided estate, right, title and interest of the within named defendants of and in the three tracts of land above mentioned. A venditioni exponas was then issued against the same parties and the land levied upon and condemned was sold by the sheriff and purchased by the defendant in error. It was claimed that these proceedings were irregular; that the judgment against the minor children was improperly entered; that the levy and sale should have been on the original judgment instead of the judgment of revival, and that the levy was upon the interest of the widow and heirs, instead of being upon the land of the decedent.

It is sufficient to say in regard to the first objection that it was unnecessary to bring in the widow and heirs under the act of 1884. It was held in Middleton v. Middleton, 106 Pa. 252, that where a judgment has been recovered against a man in his lifetime, it may be revived after bis death, for the purpose of lien and execution, et quare executionem non, issued against his personal representatives alone. In such case it is unnecessary to bring in the widow and heirs by scire facias against them. See also Riland v. Eckert, 23 Pa. 215; McMillan v. Red, 4 W. & S. 237. If we concede that the proceeding to bring in the widow and heirs was irregular, it has injured no one and the judgment against the administrator was certainly good. In regard to the second ground of objection, it may be admitted that the proper practice is to issue the execution upon the original judgment and not upon the judgment recovered upon the scire facias: Irwin v. Nixon, 11 Pa. 419. This, however, is but an irregularity and cannot affect the title of a purchaser at sheriff’s sale. The original judgment, and that of February 5, 1881, being admittedly good, a sale under the judgment of May 10, 1881, even though irregular, would be good. The latter was a mere judgment that execution should issue: Evans v. Meylert, 19 Pa. 402.

We regard the levy as a levy upon the lands of the decedent. A levy on the actual lands left by the decedent, under an execution issued on a judgment against the administrator, followed by a sale, vests a good title in the purchaser: Jones v. Gardner, 4 W. 416; Middleton v. Middleton, 106 Pa. 252. The fact that the interest of the widow and heirs was also levied upon did no harm. It was the administrator who represented the decedent, and upon the execution against him the levy was not upon his lands but upon the lands of the decedent. Aside from this the defendant was entitled to the protection of the act of 1705.

Judgment affirmed.