163 Pa. 210 | Pa. | 1894
Opinion by
If it were necessary to consider appellant’s right of subrogation to the hyne judgment, the question might well be rested on the opinion of the learned judge below, ivhich shows clearly the absence of any equity on which such subrogation could rest. But even conceding the right, the Lyne judgment was junior to the Bosler lien if that was still alive against F. W. Searight’s land. -The only question therefore is whether the Bosler judgment, having lost its lien against the land of G. P. Searight, the principal, still kept its hold on the estate of the suret3r, by virtue of the latter’s death while it was an undisputed lien.
The question is settled by the cases of Winton v. Little, 94 Pa. 64; Kindt’s Appeal, 102 Pa. 441; and Campbell v. Sherman, 151 Pa. 70, unless the law has been changed by the act of June 1, 1887, P. L. 289.
That act amends the act of March 26, 1827, P. L. 129, by adding a clause preventing the continuance of the lien of a judgment as against a terre tenant whose deed is recorded, unless he be named as terre tenant in the original scire facias. This appears to be the whole scope of the amendment, but in obedience to the constitutional requirement the act quotes the whole of section first of the act of 1827, and then re-enacts it in the same words, with the addition above mentioned. In so doing it necessarily re-enacts the words “and no judgment shall continue a lien . . . . for a longer period than five years .... unless revived,” etc., and the argument is strongly urged by appellant, first, that the act of February 24, 1834, continuing the lien of judgments against the lands of a decedent, being in pari materia, is repealed by the general negative words of the act of 1887, and, secondly, that it cannot be considered as excepted from such effect, and allowed to remain as an amendment to the act of 1827, because it is not “ reenacted and published at length ” as required by section 6 of article 3 of the constitution.
The second proposition may be disposed of first. The act of 1887 does not undertake to amend the act of 1834, and therefore did not need to repeat its terms. The constitutional provision has reference to express amendments only. Its object, like that of section two of the same article, requiring each
The words of the act of 1887, “ no judgment shall continue a lien,” etc., are general and negative, and prima facie therefore repeal everything in conflict with them. But they are not to be extended to subjects not within the legislative intent. They are part of the act 'of 1827, and are re-enacted without change, pro forma, in order to add the subsequent provision about terre tenants. The act of 1827 in its turn adopted them from the act of April 4, 1798, 3 Sm. L. 331, under which they had been given their broadest effect by this court in Fryhoffer v. Busby, 17 S. & B. 121; Bank v. Crevor, 2 Rawle, 224, and other cases. The same construction was apparently given to the act of 1827, though the absence of reference to it, even in cases which arose after its passage, and the continued recurrence to the act of 1798 are not a little remarkable. See Downey’s Appeal, 2 Watts, 297; Jack v. Jones, 5 Whart. 321, and Konigmaker v. Brown, 14 Pa. 269. In all of these cases it was held that, as against junior incumbrances, the lien of judgments expired in five years although the judgment debtor had died within that period.
The act of Feb. 24, 1834, sect. 25, P. L. 77, changed the law in such cases by declaring that the lien should continue to bind the estate for five years without revival, and during -that term the judgments should rank according to their priority at the time of death. This act established a broad line of distinction between judgments against living defendants, the liens of which were limited to five years absolutely, and judgments against defendants who had subsequently died, the liens of which were ex
Decree affirmed.