| Pa. | Jul 1, 1859
The opinion of the court was delivered by
It was agreed at bar that the 6th of May 1824, should be taken as the date of the decease of John Field, under whom both parties in this ejectment claim.
On the 11th of August 1830, a judgment was obtained by a creditor of the decedent, in the District Court of the city of Philadelphia, against the administrator. As the law then stood, this extended the lien of the debt against thé estate for a period of
The law on the subject of the duration of the liens of debts against the estates of decedents, was materially altered by the Act of Assembly of the 24th of February 1834. They were limited to five years, unless continued by actions for the recovery thereof, commenced within that period after the death of the decedent, and duly prosecuted against his heirs, executors, or administrators. A recovery of judgment, at any time within the first five years, extended the lien for the period of ten years from the death of the decedent; after that, it was requisite to the continuance, that it be revived by sci. fa. every five years. This act went into operation and full effect on the 1st of October 1834, excepting so far as to finish proceedings partly administered under preceding acts.
Not only was the extent of the duration of the lien changed by this act, but, by express provision, an implication that the lien might he continued by execution on the first judgment, as had often been held to be the case under the Act of 1798, regulating liens inter vivos, and as was applied in Steel v. Henry, 9 Watts 523, and Payne v. Craft, 7 W. & S. 458, to cases of decedents’ estates, was clearly forbidden, by the express declaration that the lien shall not be continued against the real estate of the decedent, unless revived by scire facias every five years: Act of 1834, § 25.
.It is too well settled to need the citation of authority to show, that, unless the lien is continued, under and according to the Acts of Assembly, the land which was of the decedent is as effectually discharged in the hands of heirs and devisees, where there was no judgment against the decedent in his lifetime, as it would be in the hands of bond fide purchasers.
It was mainly insisted upon by the counsel for the defendants in error in argument, that a lien to the extent óf the judgment of the 11th of August 1830, was fixed upon the land in question by the entry of the test. fi. fa. on the docket of Crawford county,'on the 23d May 1831, tested the 12th of March preceding; and continued by an alias from the same court, issued on the 16th September 1835, docketed in the same county on the 23d, and levied on the land in question on the 7th of October 1835, followed by inquisition, condemnation, testatum venditioni exponas, and sale on the 10th June 1836, and that therefore the lien existed and the land was subject to sale independently of the Act of 1834.
Were all the facts conceded, it would not, as we view the law of the case, be sufficient to protect the defendants in error; for although a lien is essential to a valid sale, yet, since the passage of the Act of 1834, there is another indispensable requisite to constitute a valid sale of the real estate of a decedent, as against the
From what has been already said, as to the alias testatum fi. fa. being the first effort to charge the realty in question with the debt of the decedent, and that occurring a year and more after the Act of 1834 took effect, it will be apparent that, even supposing the saving in the 70th and last section, applicable to such proceedings, it was not within it, for it was used but to consummate proceedings commenced under it. It was the first writ upon which the land was seized.
By force of the Act of Assembly, and many decided cases under it, we are constrained to come to the conclusion, that the title of the defendants in error was fatally defective, owing to the omission indicated in not bringing the widow and-heirs or devisees on the record, as required by the act, before the seizure and sale, and that the court below should so have instructed the jury. For the reasons given, the judgment must be reversed.
Since the case of Stewart v. Montgomery, 11 Harris 410, supposing the alias testatum to have preserved the lien to the time of sale, it might be a question, whether the interest of the administrator, who was one of the .heirs of John Field, did not pass by the sale, on the principles of that case. As this was not argued, however, we do not decide the point.
Judgment reversed, and a venire de novo awarded.