144 A. 430 | Pa. | 1928
Argued October 2, 1928. The Kefovers, plaintiffs in the present proceeding, secured on September 15, 1915, a judgment for $15,582 against one Hustead in Fayette County, and an exemplification of the same was filed in Greene County six days later. This became a lien on certain property therein owned by Hustead, and so remained when he conveyed, to the terre-tenants here named, by two deeds, one dated November 15, 1917, recorded November 23d of the same year, and the other February 8, 1918, recorded the following March 2d. At the time of the conveyance both properties were subject to the lien referred to, and this condition existed when Hustead died on March 6, 1918. On December 26, 1920, a few months more than five years from the date of entry of the judgment, and practically two years and ten months after his decease, but, within five years of the dates of the recording of the deeds to the terre-tenants, a sci. fa. to revive was issued against the executors of Hustead and the grantees of the land. All parties defendant appeared, and, as required by the rules of court of Greene County, an affidavit of defense was filed by the present appellants, admitting therein that they were terre-tenants of the land sought to be charged, the deeds therefor having been recorded in the lifetime of decedent, but contending, as a matter of law, that the lien of the judgment as to them had expired.
At the trial which followed, the plaintiffs proved the judgment, subject to certain credits, and closed without evidence that the Hustead lands had come into the possession of appellants, defending parties, as grantees *478
through the decedent. A nonsuit was asked as to them, whereupon the court, on motion, opened the case to permit plaintiffs to prove the essential fact omitted from the evidence, and which was established by the admission in the affidavit of defense, then offered for that purpose. In so permitting, we cannot say that there was an improper exercise of judicial discretion, and the assignment of error complaining of its action in this regard is without merit: McCoy v. Niblick,
The real question raised by the record is the right to a revival of the judgment for the amount thereof, deducting the payments made on account, entered when the terre-tenants bought and recorded their deeds. Of course, if the lien had been lost by failure to exercise due diligence, no recovery could be had in so far as their lands were concerned. Where real estate is purchased subject to a lien, the grantee becomes a terre-tenant (Colburn v. Trimpey,
In so far as the pleadings in this case are concerned, this requirement was followed, and the question raised is, Whether the lien itself had expired as against the land of the grantees. The proceeding was one in rem (Kirk v. Van Horn,
The Act of June 18, 1895, P. L. 197, supplementing and amending that of February 24, 1834, P. L. 70, section 25, provided for the continuance of the lien (or in effect its revival as a matter of law) for five years after decedent's death, though the land had been conveyed by him, which was interpreted to mean all that he owned when the judgment was rendered: Mercy Hospital v. McCartan,
We must examine other legislation in force to determine how a third class of judgments, namely, those which were liens on land, conveyed in the lifetime of deceased, as here, and recorded, should be revived. Such case is controlled, and the right of the parties fixed, by the Act of 1849 (April 16, P. L. 664, section 8), which provides: "In all cases when a judgment has been or shall be regularly revived between the original parties, the period of five years, during which the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he or she has placed *481 their deed on record. Provided, That this act shall not apply to any cases which have been finally adjudicated, or when the terre-tenant is in actual possession of the land bound by such judgment, by himself or tenant."
It is now urged that this legislation has been impliedly repealed by the Act of 1917, before referred to. The same contention was unsuccessfully insisted upon when the Act of 1887 was passed, providing that terre-tenants should be made parties to revival proceedings: Uhler v. Moses,
That this legislation is still in force has been recognized in as late a case as Schotts Co. v. Agnew,
As to the estate of Hustead, the lien of the judgment was renewed in 1918 by his death for the period of five years, and the same would have been true against a grantee as to property conveyed by unrecorded deed where the purchaser was not in actual possession (Lyon v. Cleveland,
The judgment is affirmed.