2 Foster 217 | Pa. | 1874
delivered the opinion of the court, July 2d 1874.
By the 34th section of the Act of February 24th 1834, Pamph. L. 80, it was enacted that “ in all actions against the executors or administrators of a decedent, who shall have left real estate, where' the plaintiff intends to charge such real estate witlf the payment of his debt,” the widow and heirs, or devisees, shall be made parties thereto. As well upon the words, as the evident intent of the statute, where at the death of the decedent the land was already charged with the debt, the provision has no application. Such have been the decisions. Thus, a scire facias on a mortgage is not within the act: Hare v. Mallock, 1 Miles 263 ; Chambers v. Carson, 2 Whart. 9; Wallace v. Blair, 1 Grant 75; nor a scire facias to revive a judgment recovered before the death of the decedent : McMillan v. Red, 4 W. & S. 237; Riland v. Eckert, 11 Harris 215; Bennetts. Fulmer, 13 Wright 155. It is equally clear that where the land was charged with the debt before the time when the Act of 1834 went into operation, namely, October 1st 1834, it was not necessary to make the widow and heirs, or devisees, parties before proceeding to execution. Were then the premises charged with the debt of Samuel Moore to Thomas H. Crawford before the 1st day of October 1834 ? It is true that the judgment recovered against his executors to April 1827, in the Court of Common Pleas of Franklin county, had not that effect. It was no lien. Under it, however, as the law then stood, the real estate of the decedent might have been seized in execution, condemned and sold. If the case had rested on that judgment alone, no execution could have been issued upon it to reach the land, after the Act of 1834, without a scire facias to bring in the widow and devisees. This is the extent of Keenan v. Gibson, 9 Barr 249; Warden v. Eichbaum, 2 Harris 121; Kessler’s Appeal, 8
It is contended, however, that this error cannot avail the plaintiffs here, because it appears on the face of the record that the lien of the debt of Crawford, as against the heirs and devisees of Moore, had expired at the date of the sheriff’s sale in 1838. Samuel Moore died in 1825. The period of limitation of the lien of his debts was then seven years, by the Act of April 4th 1797, sect. 4, 3 Smith 297, “ after the decease of such debtor, 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.” It has been settled that the effect of an action within seven years, duly prosecuted to judgment, was to extend the lien by analogy to the Act of 4th of April 1798, sect. 2, 3 Smith 331, five years longer — that is, for twelve years from the decease of the debtor: Trevor v. Ellenberger, 2 Penna. Rep. 94; Penn v. Hamilton, 2 Watts 53; Fetterman v. Murphy, 4 Id. 429; Steel v. Henry, 9 Id. 523; McLaughlin v. McCumber, 12 Casey 14. As these decisions have been subsequently ex
Judgment reversed.