11 Pa. 260 | Pa. | 1849
The opinion of this court was delivered by
Certainly the original judgment recovered by Wat
But, extending the doctrine of Fursht v. Overdeer, we h|)ld the plaintiff was right in treating the judgment recovered in the first scire facias as a distinct, substantive lien against the land, recovered within five years immediately before the impetration of the last writ, which he was entitled to have revived to preserve his lien, notwithstanding the judgment in the second scire facias.
This determination was founded in the necéssity presented by the case, and to prevent a failure of justice. Without it, the plaintiff must have lost his debt, for the time of the original judgment had expired, and the third had never attached, since the land was aliened before its recovery. The reason of that decision rules this case against the plaintiff. That case went as far in relief of the judgment-creditor as we can venture to go without imminent risk of marring the symmetry of our law, by obliterating everything like rule and order in cases of daily occurrence.
The idea which seems to have misled the court below was, that the original judgment bound only Roush’s interest in the land to the extent of the unpaid purchase-money; and the judgment now sought to be recovered against the terre-tenant can bind nothing more.
This view would be well' enough were the present scire facias founded on the original judgment. But the learned judge seems to have forgotten, that, before the rendition of the second judgment, which is the foundation of the now pending writ, Roush had parted with all his interest in the land, legal and equitable, and that the now sole defendant was no party to the second judgment. It cannot, therefore, be said to encumber Roush’s interest, for then he had none; it cannot bind Zerns’s, for he was no party to it.
In every point of view, the proceeding is erroneous, so far as Zerns is concerned. If the error involves a loss of the plaintiff’s debt, it may be regretted, but cannot be helped.
Vigilantibus et non dormientibus jura subveniunt.
If the plaintiff thinks he can better it on another trial, he may have a new venire.
Judgment reversed, and a venire de novo awarded.