2 Watts 53 | Pa. | 1833
The opinion of the Court was delivered by
The principle of Trevor v. Ellenberger, though not fully expressed in the opinion delivered, will be found to cover the whole field of the controversy. It was admitted that the lien of creditors ón a decedent’s land, springs exclusively from the intestate laws which make his estate a fund for payment of his debts ; insomuch, that nothing is added or gained by a judgment against his representatives; and that the act of 1798, by which is provided a peculiar scife facias to prolong the lien of judgments inter vivos, is not directly applicable to it. But it was distinctly asserted that a decedent’s lien, also, might be prolonged by scire facias; and the construction by which that result is obtained, is the matter to be shown.
The act of 1797, which gives rise to it, provides that no debts but such as are secured by mortgage, judgment, recognizance or other record, shall remain a lien on the lands of a decedent longer than seven years from his death; “unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executors or administrators, within the said period of seven years; or a copy or particular statement of any bond, covenant, debt or demand, where the same is not payable within the seven years, shall be filed, within the said period, in the office of the prothonotary of the county where the lands lie.” It is evident from the context, that the excepted liens are such as have been acquired in the decedent’s lifetime; and that they are thus mentioned to preclude the implication of an-intent to- abridge or impair them. The difficulty in Trevór v. Ellenberger, was to determine when an action should be “duly prosecuted ;” and it was thought not to be so, within the.meaning of the act, when prosecuted to judgment merely, because that construction might extend the lien to some twenty or thirty years without a further act done, as the presumption of payment from lapse of time would run but from the rendition of the judgment, which might be several years after the expiration of the original limitation. The law is.a remedial one, and we thought ourselves bound to make such a construction of it, liberal though it were, as would best advance the remedy and repress the mischief. In legal estimation, judgment is doubtless the end of prosecution ; but that can scarce be thought the sense in which the words were used by the legislature. That the inconvenience of stale liens was beginning to be felt, is evident not only from the act in question, but from the act of the year following, for the limitation of the lien of judgments ; and we cannot suppose that the legislature, proceeding systematically to the removal of it, intended to pay respect to any discriminating circumstance depending upon origin. It was of little moment as to consequences, whether the lien had its root in a judgment, or was but dependent
Judgment affirmed.