Jack v. Jones

5 Whart. 321 | Pa. | 1840

The opinion of the Court was delivered by

Sergeant, J.

The act of 1798, requiring judgments to be revived within five years, in order to preserve their lien, was decided in Fryhoffer v. Busby, (17 Serg. & Rawle, 121,) to apply to all judgments, notwithstanding the death of the defendant within the five years; and it was held, that in such case the lien of the judgment against the intestate is lost, as against subsequent judgment creditors, whose liens are in full force, if not duly revived against the administrator. In Fetterman v. Murphy, (4 Watts, 424,) it was contended, that even as against the heir or devisee, the lien of a judgment against the testator was lost altogether, if the judgment was not duly revived. But the act of 1798, which alone regulates judgments against the decedent, was considered as having been passed for the protection of purchasers and judgment creditors, and not for the protection of heirs and devisees, who must stand exactly in the situation of the debtor; and therefore the land of the decedent was held liable, even after twelve years, to execution and sale on a judgment against the decedent not' revived. In the present case the heir has incumbered the land by a judgment against himself, and the competition is between a creditor of the ancestor on a judgment against him not revived at the time of sale, and a creditor of the heir, having a judgment against him, which was then in full force. The act of 1798 extends to all judgments, though one be against the decedent, and another against the heir deriving title from him. Judgments bind the land, into whose hands soever it may come; and on a sale of, it, it has been repeatedly held, that all judgments in force, whether against the present or prior owner, are to be paid out of the purchase-money, according to their priority. Milliken v. Kendig, (2 P. R. 497.) Commonwealth v. Alexander, (14 Serg. & Rawle, 287.) Stiles v. Bradford, (4 Rawle, 394.) The object of the legislature was to limit judgments to five years, unless revived; and though a judgment, as to the heir himself, is indefinite, it is otherwise as to a judgment creditor of the heir, in the same manner as it would be if the case were that of the decedent himself. Otherwise judgment creditors would be defeated by stale liens, and indefinite incumbrances would clog the transfer of titles, as before the act of 1798. I have not referred to the intestate act of 1797, because it has no reference in its limitations to judgments against decedents in their lifetime; their lien is regulated by the act of 1798 and its supplements. Trevor v. Ellenberger, (2 Penn. Rep. 96.,) Kerper v. Hock, (1 Watts, 9.) Penn v. Hamilton, (2 Watts, 53.) I speak, moreover, of the state of the law prior to the late act of 24th February, 1834, which has made some alterations on the subject. The judgments in the present case were all prior to that act.

Judgment reversed, and report of auditor.confirmed.