West's Appeal

5 Watts 87 | Pa. | 1836

The opinion of the Court was delivered by

Rogers, J.

The judgment of Thornbury et al. against the executors of West and of Miller, against the same, were, without doubt, liens upon all the real estate of Edward West in the county of Cumberland, and continued liens until the year 1820, when Perry was stricken off Cumberland, and erected into a separate county. In the act of 1820, there is no provision preserving the lien of judgments, binding lands in Perry county, nor prescribing the mode of collecting them. In this respect, the act is defective, and differs from other acts in similar cases, which usualty provide, that for that purpose, process shall issue to the officers of the new counties, to be executed and returned into the court from whence they issue. It is very clear, that the mere erection of the county of Perry, without such legislative provision, would not destroy the lien, for we cannot suppose it to have been the intention of the legislature to interfere with vested rights; and the omission, no doubt, arose from inadvertence in the framers of the act. Indeed I do not understand the counsel to contend that the lien was, ipso facto, extinguished. It would be most unjust to give the act such a construction. Has it, then, lost its lien^by any thing which has occurred since the counties were separated? If it has, it is not for want of legal diligence on the part of the plaintiffs, for successive writs of scire facias have been regularly issued in the county, where the judgments were rendered. These have been served upon one of the executors, who is also the terre-tenant, under the will of Edward West, returned nihil as to the other, and on these, judgments have been, in due time, regularly entered. As the act is silent as to the manner of reviving such judgments, it follows, either that the judgments remain liens as at eommon law previous to the act of the 4th of April 1798, or, that they must be revived in the same manner as is required under that act and its supplements in ordinary cases. And, in either alternative, these judgments continue liens on the lands in Perry county. But, it is said, the judgments lost their liens, because five years had elapsed from the date of the entry of the testatum, fieri facias on the records of the court of common pleas of Perry county. But, to this objection, the answer is, that the act of the 1st of April 1823, only applies where the testatum execution creates the lien, and not to those cases where it is used as a mere means of effecting a sale of the land. In the case under review the testatum creates no lien. The lien is created by the judgment, which was had in Cumberland, where the lands were, at that time, situated. The testatum can have no effect to create or continue the lien of the judgment. The purchaser, in such' cases, must look beyond the records of the, county where the land is situated, and must search the records of the original county from which it is detached.

Decree affirmed.