150 A. 586 | Pa. | 1930
Plaintiff issued a scire facias to revive a judgment which it held against Ettore Milani, naming therein his wife as terre-tenant, but not specifying any property of which she was alleged to be the terre-tenant. No statute requires the writ to refer to any particular property. The wife was duly served, but instead of filing a plea denying that she held any land as terre-tenant of her husband, as she should have done if she wished that issue to be decided, she presented to the court below a petition averring that she was the owner in fee of a named property, which was conveyed to her for a valuable consideration (not alleged to have been paid by her), before plaintiff's judgment was originally entered; that she held the property in her own right and not subject to the lien of the judgment; and asked that the writ of scire facias be quashed. With some hesitation, the court below granted the prayer of the petition and quashed the writ. This was clear error: Bolton v. Robinson, 13 S. R. 193, 194; Crawford v. Stewart,
There are cases of foreign attachment where extrinsic evidence was admitted and acted on, but these, as shown in Pasquinelli v. Southern Macaroni Mfg. Co.,
As the case goes back for further proceedings it may not be inappropriate to add that if the only property, which plaintiff seeks to hold liable for his judgment, was acquired before that judgment was entered originally, then appellee is not the terre-tenant contemplated by sections 2 and 3 of the Act of April 4, 1798, 3 Sm. L. 331, by virtue of which the writ in this case was issued. In early days our decisions on this point were far from harmonious, but the question is no longer an open one: Handel Hayden B. L. Assn. v. Elleford,
A careful study of our numerous and conflicting decisions under the Act of 1798, will lead to the conclusion that it has outlived its usefulness, and that the wise course is to proceed under the Uniform Fraudulent Conveyance Act of 1921. The Act of 1798 was passed at a time when Pennsylvania had no court of equity, and hence a method had to be devised which could be applied in a court of law. The statute has always been strictly construed; so much so that nothing can be tried under the sci. fa. except the question as to whether or not the land was bound by the judgment, and, if it had been at one time, whether or not the lien was lost: Dangler v. Kiehner,
On the other hand, a proceeding in a court of equity in this State, is now less expensive and more expeditious than one at law; in the former tribunal the conflicting decisions under the Act of 1798 pass out of the picture; equity's flexibility enables every one interested to be brought before the court, whether as mortgagee or owner; its decree settles the rights of everybody, and a sale under it will pass a valid title to the land, and not merely a right, after paying the amount bid at the sheriff's sale and its costs, to test the title in later proceeding.
The order of the court below is reversed, the writ of scire facias is reinstated, and a procedendo is awarded.