256 Pa. 158 | Pa. | 1917
Opinion by
At the suit of certain creditors the Waynesburg Brewing Company, a corporation, was adjudged insolvent on the 7th day of February, 1912, and on the same day the court appointed a receiver to take over and administer the insolvent estate. Among other judgments which were existing liens upon the real estate of the company was a judgment standing in the name of the Union National Bank of Huntingdon, to the use of I. N. McNay, for the sum of three thousand dollars, which had priority of lien. Execution was outstanding on this judgment when the receiver was appointed; the real estate had been levied and a writ of venditioni exponas was in the sheriff’s hands when the execution was arrested by the court and the sheriff enjoined against proceeding with the "sale. The real estate encumbered as above was sold by the receiver May 21, 1913, under an order of sale granted April 8, 1912, and which had been continued from term to term. No writ of scire facias having been issued meanwhile on the Union National Bank judgment, its lien expired July 24,1912. Notwithstanding this fact, the court below in the proceeding-distributing the converted estate to and among the creditors, allowed this judgment its original priority, on the ground that having had priority of lien over the other judgments which were liens on the same property when the receiver was appointed, it retained such priority and no revival was required to this end, because on that day the property passed into the custody of the law and what transpired subsequently could neither modify nor enlarge the rights of creditors.
The argument advanced in support of the mistaken view adopted by the learned court itself rests on a mistake of law. There can be no authority for the position taken that the appointment of the receiver operated as a conversion of the real estate into personalty, and that the lien of the judgments then in full force was thereupon divested and the fund substituted for the land. The effort to distinguish between the cáse of voluntary assignment for the benefit of creditors, where the conversion takes place on the confirmation of the sale, and a receivership, is without force, since in both alike the conversion is by act of law, and the same rule must obtain with respect to each. “A conversion of real estate into personal estate by act of law, differs from a conversion by act of the party. In the latter case, when conversion is the object of the owner, the result is produced as soon as the contract of sale is made. In the former, where payment of debts or partition, and not conversion, is the object, the transmutation is but an unavoidable result of the proceeding,, and takes place only when the estate is completely vested in the vendee, and the purchase-money paid or secured.” Biggert’s Est., 20 Pa. 17.
No excuse avails for failure to revive a judgment in the way provided by statute, least of all the suggestion that the appointment of a receiver suspends such right. It does not so operate. The object in issuing the scire facias is not to obtain a new lien, but to continue an existing one. The process interferes in no way with the possession of the property by the receiver, and the latter not being the owner of the property subject to the lien, is not a necessary party to the proceeding. “The judgment on the scire facias is not, as the court erroneously supposes, a new judgment giving vitality only from that time, but it is the revival of the original judgment, giving, or rather continuing, the vitality of the original judgment, with all its incidents, from the time of its
The judgment in the present case having expired in its lien before the confirmation of the sale made by the receiver, it lost its original priority, and it was error to allow it preference.
The decree is reversed with a procedendo.