9 Watts 523 | Pa. | 1840
The opinion of the court was delivered by
The only question presented by the facts of the case, as stated for the opinion of the court below is, whether the real estate of James Steel, the testator of the defendants below, which, upon his death, became bound by operation of law, and also by his will, for the payment of his debts, among which was the debt owing by him to William Henry, the testator of the plaintiffs below, be still bound or not for this debt. The court below being of opinion that the debt still continued to be a lien upon the real estate, rendered a judgment in favour of the plaintiff below. But. the defendants there being dissatisfied with the decision of the court, have, by writ of error, brought it here. They claim that the lien of the debt upon the real estate of their testator has become extinct through lapse of time, and the neglect of the creditor and his personal representatives to keep it alive, by suing out a writ' of scire facias for that purpose upon the judgment obtained for' the recovery of the debt, in every successive term, thereafter, of five years from the date of the judgment, or, at most, from twelve years after the death of the debtor. In answer, however, to this, it may be observed, in the first place, that the debt having become, the instant that the debtor died, a lien, by operation of law, upon the
This court, in the case of Penn v. Hamilton, 2 Watts 53, in giving a construction to the act of 1797, limiting the lien of a debt of a deceased debtor upon his real estate to a period of seven years from his death, unless a suit were commenced for the recovery of ■it within that time, and duly prosecuted, held,-in order to determine
But I apprehend that, under the construction given by this court to the act of 179S, the proceedings had upon the original judgment in this case, would have been all-sufficient to have preserved and continued the lien of it upon the real estate of the defendant, if it had been a judgment against the debtor himself. The principle of the act of 1798 was not applied to the case of Penn v. Hamilton, because it was thought that the legislature intended that it should extend to such a case, or to original judgments obtained against the representatives of deceased debtors, but was adopted by the court, and applied to it upon the ground of analogy, and its furnishing a reasonable rule, as it was conceived, by which it might be ascertained, whether the proceedings upon a judgment have been duly prosecuted or not, in order to obtain execution of it. The acts of 1827 and 1S29, relative to the liens of judgments, and prescribing the mode to be observed and pursued with a view to continue such liens in force, have no application to judgments obtained against the personal representatives of deceased debtors; and not being very reasonable in some of their provisions, as regards the continuance of the liens under judgments obtained against the debtors themselves, it is therefore not very probable that courts will ever be disposed to extend their principles to cases not falling within either the letter or spirit of these acts.
It is not necessary, however, to decide the question raised in this case upon the ground thus presented, because there is a second ground upon which, according to the decision of this court in Alexander v. Murray, 8 Watts 504, it is to be determined, clearly, in favour of the plaintiffs below. The testator of the defendants below charged by his icill the debt in question, as also all his other debts, upon his real estate; and in case his personal estate should prove insufficient to meet the payment of them, he also directs that his executors shall sell his real estate, and out of the money arising therefrom, first pay all his debts remaining still unpaid; and not until after his debts shall be paid does he devise any portion of his real estate, or bequeath any part of the proceeds arising from a sale thereof to any one. Thus the debt in question became a lien upon the real estate of the testator without any limitation annexed, either by law or by the will. The authority, moreover, given by the will to the
Judgment affirmed.