Appeal by Betz

1 Pen. & W. 271

Opinion

The opinion of the court was delivered by

Smith, J.

(His Honour stated fully the facts of the case.) The questions, which are to be decided here are. 1 Whether the lien of a judgment, is continued beyond five years, from the first return day of the term of which it is entered without a scirefacias to revive the same, by a fieri facias issued within a year and a day, and returned, levied on personal property, subject to prior executions, or, levied on personal property, as per inventory annexed, or returned, “nulla bona;” and 2ndly. Whether the transcript of a judgment of a justice of the peace, filed in the court of Common Pleas, continues the lien five years from the day on which it was actually entered, or five years from the first return day of the term of which it is entered, according to the provisions of the act of the 4th of April, 1798. With regard to this Jast question, we. find it impossible to draw a distinction between a judgment entered by confession, or on verdict, and a judgment entered from a transcript of a justice. It was long ago decided, that judgments obtained before justices of the peace, when filed in the prothonotary’s office, are on the same footing with judgments in court. Scott v. Ramsey, 1 Bin. 221. The words of the act of 1798, section 2, are, that “ no judgment hereafter entered in any court of record within this commonwealth, shall continue a lien on the real estate of the person against whom such judgment may be entered, during a longer term than five years from the first return day of the term of which such judgment may be so entered, unless the person who may obtain such judgment, or his legal representatives, or other persons interested, shall, within the said term of five years, sue out a writ of scire facias, to revive the same.” We have no doubt that the case of a transcript, is embraced both by the language and spirit of this provision, and we are unanimously of opinion, that the court below was correct in sustaining the exception to the allow anee of Rees and Mills’ judgments, as existing liens, five years from the first return day of the January term, 1823, having expired, when the scire facias was issued upon them respectively, though only by a single day. The other question does not admit of so easy a solution, nor are the members of this court unanimous respecting it. I may, however, state that four of us, concur in the opinion, that where the fierifacias is returned “nulla bond,” the lien is not thereby continued on the land; and that a majority of the court consider that the lien is not continued by a fieri fxcias, returned levied on personal property, as per inventory annexed.

The act of 1798, limiting the time during which a judgment shall be a lien on real estate, &c. is imperative in its injunction, that no-judgment shall continue a lien, unless a writ of scire facias be sued out within the time therein prescribed, to revive the same. It is true, that this excepting clause, has been extended by construction to the case of e,fieri facias levied on lands, and also, to the case of a cesset executio, making the five years during which the scire facias may be issued, to commence at the expiration of the stay. There is no disposition In this court, to carry the construction beyond the decisions in the cases of Young v. Taylor, 2 Bin. 218. Pennock v. M’Kisson, 13 Serg. & Rawle, 144; and Pennock v. Hart, 8 Serg. & Rawle, 319. In the last mentioned case, the stay of execution was entered upon the record, and this entry has been decided, in subsequent cases to be essential to the extension of the period within which the plaintiff may issue a scire facias to revive his lien. Every effort to induce us to carry the construction beyond that point, has proved unavailing, and we have held, that no agreement between the parties for a stay, will be valid, as to third 'persons, unless it be placed upon the record at the time of entering the judgment. Black v. Dobson, 11 Serg. & Rawle, 94. Bombay v. Boyer, 14 Serg. & Rawle, 253.

In Young v. Taylor, the fieri facias was levied on goods and land-, •the very land in controversy, on which was held an Inquisition, that condemned it. Th e fieri facias thus levied, with the inquisition and condemnation, Was considered, in point of notice of the creditor? pretensions, to be equivalent to the scire facias mentioned in the, act of the 4th of April, 1798, and to supersede that writ. Even the letter qf this case affords no support to the errors assigned by the appellants, whose writs offieri facias, were levied on personal property alone; and if we regard its spirit and reason, which constitute the real authority of every precedent, we shall be satisfied that it cannot contribute in the least to sustain these appeals. The act of assembly in question, was passed, for the safety of purchasers of real estate. The scire facias within five years was intended as notice, that the judgment creditor still looked to the land as security for his debt. Iiis omission to sue it out affected him in no other way, than by relieving the land from the lien of his judgment. The purchaser, where a scire facias has been duly sued out, is fully notified of the incumbrance, and of the creditor’s intention to regard the land as the fund out of which he expects to be paid. Buying with notice, he cannot complain. “ But,” said Judge Yeates, in 2 Bin. 229, “ It will not be denied, that the plaintiff taking out a fieri facias, levying on goods and lands of the defendant, and condemning the lands by an inquest, are matters of notoriety, and in point of notice of the creditor’s pretensions, tantamount to a scire facias. Such I take it, has been the construction pf this section of the act.” It was the notoriety of these proceedings upon the judgment affecting the lands, that was thought to supply the purpose of the scirefacias, in giving notice of the plaintiff’s intention not to relinquish his lien upon them. But how can we infer such an intention from afieri facias, levied upon personal property only? In Hunt v. Breading, 12 Serg. & Rawle, 37, it wrns decided, that a judgment creditor, who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the land. See also, Dean v. Patton, 13 Serg. & Rawle, 341, and Duncan v. Harris, 17 Serg. & Rawle, 436. A levy on personal property, cannot be considered as notice to a purchaser, that the creditor means to rely on his lien upon the debtor’s lands. It is an indication of a different intention. The fieri facias itself is no lien upon the land, until it is seized in execution by virtue of the writ.' It is a lien upon the defendant’s goods from the time of its delivery to the sheriff, and where goods of sufficient value are actually seized in execution, the debt is extinguished, and the judgment satisfied. In the fact of levying on personal property, what is there, of actual notoriety, calculated to supply the notice by scire facias of the creditors purpose to renew or revive his lien upon the defendant’s land ? Certainly nothing. -If then, we go to the record, we find an entry of & fierifacias issued, and returned, “ levied on personal property.” Is there any thing in this, that really intimates the creditor’s design to maintain his lien upon the land ? On the contrary,' the entry shows that the creditor has resorted to the defendant’s goods, for the satisfaction of his debt; and ihp legal consequence is, that he is not at liberty to give them up;, and-proceed against the land. In the case of Pennock v. M’Kisson, 13 Serg. & Rawle, 144, the decision, was, “barely on the-effect of a-levy on particular lands, preserving the lien on the land'levied,”' without a scire facias to revive; and it was decided on the authority of Young v. Taylor, that it was sufficient for that purpose; though, Judge Duncan, who delivered the opinion of the court, declared,, that if the matter were r-es integra, he would have given.-adifferr ent decision.

Upon the present question, I consider this court, as untrammeled •by former decisions. We have the plain and unequivocal enactment of the legislature for our guide, without any reason to suppose,, that if they had foreseen the case now under consideration, they would have employed one word more or less, in order to bring it within the exception to their limitation. There is no instance in which afieri facias levied merely upon personal property, has been held to be within that exception; nor can the decisions or practice under the statute of Westminster 2d, in my opinion, warrant such a construction, in relation to a fieri facias thus executed. The ■object and character of that statute, and of our act of the 4th of-' April, 1798, are indeed so different, that I am at a loss to discover* -the propriety of reasoning from one to the other.

In fine, wc .think, that as no scire facias was sued out, according to the second section of the act of the fourth of April, 1798, to revive the judgments of Jacob IC Boyer, for the use of Henry Betz, and the judgment of Joseph Hiester, Esquire, within five years from the first return day of the term, of which they were respectively entered, they did not continue a lien on the real estate oí' the defendants therein named beyond that period, notwithstanding the fieri facias issued upon them, and levied on the personal property of these defendants. The appellee, Jacob Hawk had issued a writ of scire facias, to continue his lien, so that in fact, the case was between those who had complied with the law, and those who had disregarded it.

Gibson, C. J.

No man is more ready than I, to admit the fallacy of the construction in Young v. Taylor, but as it has laid the foundation of a practice, extensively adopted, I think that the germ of jnuch evil is discernible in the present departure from it. The importance of that case is not derived from the point directly decided, but from the breadth of a principle asserted in it, that “ no change was intended in the mode of keeping judgments alive, by issuing an execution within the year and day, superseding the necessity of issuing a scire facias under the statute of Westminster the second.” Since that statute, the judgménffwas kept alive by the issuing and continuance of an execution, without regard to the circumstances of a levy, which was considered to he immaterial; and I feel confident that on the authority of this dictum, the same practice has prevailed in many parts of the state, as 'uninterruptedly since the act of assembly, as it did before. To follow it to the point at which it has been arrested by the legislature, would produce nó material inconvenience; for although little accordant with the letter or spirit of the act, I am not aware that it has ever produced injustice : what the consequences of overturning it maybe retrospectively, no man can foresee. Purchasers have reposed on it for twenty years; and to deprive them of a title founded in a practice repeatedly recognized by judicial decision, ought to require the presence of an overruling mischief, which, it seems to me, does not exist. I am, therefore, averse to any change, particularly- in what seems to me to have become a rule of property; and I am happy to say my brother Rogers, is of the same opinion.

The judgment and decrees of the court of Common Pleas, are affirmed.

Rogers, J. — Concurred with the Chief Justice.