1 Watts 26 | Pa. | 1832
The opinion of the court was delivered by
This was a writ of scire facias quare executio non sued out of the court of common pleas of Westmoreland county by the Westmoreland Bank, upon a judgment which it had in that court against the defendant in error, for the amount of a note which he had indorsed to the bank. The note was drawn by a certain James Irwin in favour of John Kirkpatrick or order, and indorsed by Kirkpatrick to the defendant. A judgment at the suit of the bank was likewise obtained against Kirkpatrick for the amount of the note. These judgments in favour of the bank against Kirkpatrick and Rainey were both rendered originally on the 15th of January 1823, and afterwards revived by writs of scire facias issued to February term 1825, in which
Upon these facts, which are collected from a statement agreed on by the parties in this case, and to be considered in the nature of a special verdict, the question arises, whether the judgment for 941 dollars and 89 cents against Kirkpatrick must be first satisfied out of the money made by either sale, before the application of it towards satisfaction of the judgment for the 15,508 dollars and 50 cents. For if it be that the money of either sale ought to be appropriated to the payment of the smaller judgment first, in preference to the larger, the law will make that appropriation of it in the hands of the bank, as it is the plaintiff in both judgments and has received the money of both sales, after satisfying the prior liens upon the lands sold.
Although the smaller judgment is of later date than the larger, yet the lien of it was continued and kept alive until after both sales were made. Its lien commenced with the date of the entry of it, on the 15th of January 1823, and, under a writ of scire facias issued returnable to February term 1825, was revived by the entry of a judgment for that purpose on the 1st of February 1826, which was sufficient to have kept it alive for the space of five years then next following. The larger judgment was entered, as we have seen, on the 20th of April 1819, and a writ of fieri facias sued out, not returnable to the August term following; under which a levy was made, and returned by the sheriff, upon the lands ; from the sale of which by the sheriff, afterwards, the moneys arose, the appropriation of
It has been contended in this case by the counsel for the bank, the plaintiff in error, that the requisitions of these acts of assembly have been substantially complied with; and that the lien of the larger judgment has been continued and preserved. That a scire facias was sued out, returnable to February term 1829, which was within two years after the passage of the act of 1827; and that although this- writ was returned nihil by the sheriff, and no other was issued until August term 1830, after an intervention of five terms of the court out of which the first writ of scire facias was sued, yet a continuance of the first scire facias may be entered from term to term, down to the issuing of the alias or second scire facias, and th’us connect the second with the first, and give it a relation and retrospective operation, back to the date of issuing the first. It has been likened to the case when the plea of the statute of limitations has been avoided by the plaintiff’s showing in his replication, that the process in the suit was issued within the six years, and returned non est inventus by the sheriff, and regularly continued on the docket or roll from term to term, until the time of declaring. Salk. 420, pl. 2 ; 421, pl. 6 ; 1 Lord Raym. 435 ; Com. Dig., action on the case upon assumpsit H. 7 ; 3 Term Rep. 664; 1 Dall. 411 ; 12 Johns. Rep. 430. And that in such cases the continuances may be entered at any time. 6 Term Rep. 618 ; 7 Term Rep. 614 It has also been said, that this principle has been applied to, and sanctioned by this court in the case of a scire facias issued under the act of 1798, for the purpose of reviving a judgment and continuing its lien beyond the five years. Pennock v. Hart, 8 Serg. & Rawle 369.
In order to see whether or not what has been urged by the counsel for the.plaintiff in error will be sufficient to answer the purpose, we must refer to the acts of the legislature upon this subject.
The second section of the act of the 4th of April 1798, Purdon’s Dig. 421, declares, that “ no judgment thereafter entered in any
The third section, which directs the course of proceeding on such writs of scire facias after that they shall have been sued out, enacts, that they “ shall be served on the terre-tenants or persons occupying the real estates bound by the judgments; and also when he or they can be found, on the defendant or defendants, his or their feoffee or feoffees, or on the heirs, executors or administrators of such defendant or defendants, his or their feoffee or feoffees. When the land or estate is not in the immediate occupation of any person, and the defendant or defendants, his or their feoffee or feoffees, or their heirs, executors or administrators, cannot be found, proclamation shall be made in open court, at two succeeding terms by the oyer of the court in which such proceedings may be instituted, calling on all persons interested to show cause why such judgment should not be revived ; and on proof of due service thereof, or on proclamation having been made in the manner herein before set forth, the court from which the said writ may have issued, shall, unless sufficient cause to prevent the same is shown, at or before the second term subsequent to the issuing of such writ, direct and order the revival of any such judgment, during another period of five years, against the real estate of such defendant or defendants; and proceedings may in like manner be had again, to revive any such judgment at the end of the said period of five years, and so from period to period, or after, as the same may be found necessary.”
The sections of the act of 1798 not only direct the time within which a writ of scire facias shall.be issued, for the purpose of continuing the lien of a judgment, but how it shall afterwards be served and upon whom; and in case the land be unoccupied, and the person or persons on whom it is ordered to be served are not to be found, that then proclamation shall be made by the crier of the court, at two succeeding terms ; and in case of either a service of the writ or proclamation made as directed by the crier, and every case must fall within the one or other of these two classes, the judgment of revival, unless sufficient cause be shown, to prevent the same at or before the same term subsequent to the issuing of the writ, must be entered. Here is an express limitation of time, within which the judgment of revival may or shall be entered, unless sufficient cause be shown to the court to prevent it. I do not wish to be understood as saying that, unless sufficient cause be sho.wn, that the judgment in all cases must be revived at or before the second term subsequent to the issuing of the writ, in order to keep the lien of the judgment alive; but I think it sufficiently manifest, from this part of the act, that the legislature intended that there should be no unreasonable delay in proceeding
In Pennock v. Hart, which has been relied on by the counsel for the plaintiff in error, it was held by this court, that where the scire facias was sued out within the five years, and returned tarde venit, and an alias scire facias was issued after the expiration of that period, and after one term had intervened, the process might be connected, and the commencement of the proceeding should be referred to the issuing of the original scire facias. Without overruling this case of Pennock v. Hart, it might, perhaps, be sufficient to say, that it is as different from the case under consideration as one is from five; or, if there be no difference between the intervention of five terms and one term, I do not see any reason why a distinction should be taken between five terms, and twenty .or one hundred,, and thus the lien of the judgment might be extended to an unlimited period, by suing out a scire facias within the first period of five years after the entry of it, and having a return of nihil or tarde venit made to it by the sheriff, and then after that, by entering the continuances upon the docket once in every succeeding term of five years, without suing out, in fact, any subsequent writ of scire facias; which, I think will be admitted by every one, would be a palpable disregard of the directions of the acts on this subject.
It may also be observed, that the return to the first scire facias in Pennock v. Hart was tarde venit, and not nihil. I consider tarde venit, if true, a proper return to the writ, because no act of the legislature will be construed to require an impossibility; but I doubt very much whether nihil is a sufficiently expressive return to answer what is required by the act of 1798, which has been partly recited.
But it is contended, in the next place, that as there is no other than they who had a lien upon this last tract of land at the time of the sale of it, that they have a right to apply the whole of the money arising from the sale towards paying the larger judgment, although no lien on the land at the time of sale, to the exclusion of the smaller judgment, which was a lien at that time; because they are the plaintiffs in, and the owners of both judgments. I am inclined to think that the plaintiffs could not do this without the consent of the defendant in the judgments, even if no other person were interested in the appropriation of the money; but I give no decided opinion upon this point, as I deem it unnecessary to the decision of the present case. .The object of the plaintiffs is obvious. They consider the security which they have for the payment of the debt in this larger judgment as insufficient, and therefore it is that they wish to have all the money arising from the sale of Kirkpatrick’s property appropriated to the payment of it, and to make Rainey, who is bound only as an indorser, subsequent to Kirkpatrick, who is bound as the first, to the plaintiffs for the payment of the debt embraced in the smaller judgment, which was a lien upon the land at the time of the sale, pay to them the whole of this smaller
Judgment affirmed.