The opinion of the Court was delivered by
Kennedy, J.
The first matter complained of as error is, that the court below withdrew from the jury the decision of the question of fact, whether the other heirs, beside Lane and wife, had executed the deed of conveyance that was drawn in favor of John Clark, the husband of Margaret, the mother of the plaintiffs below, conveying to him in fee that portion of the land allotted by the partition to his wife. The court on this point instructed the jury that the evidence, in regard to it, was not sufficient to prove that such deed had been executed and delivered. In this, we are decidedly of opinion, that the court was right. There was no evidence given, which even tended, in the slightest degree, to show that such deed had ever been signed or sealed by any of the heirs, excepting Mrs Lane and her husband, who, it would seem from the evidence, did sign and seal a conveyance, prepared with a view to be signed, sealed and delivered by all the heirs, with the exception of Mrs Clark and her husband, the latter being the sole grantee named in it. No one of the heirs appears to have ever signed it, beside Lane and his wife; nor was it ever delivered to Clark. The evidence then going no further than this, it would have been error in the court below, to have left such a fact to the decision of the jury, as if evidence had been given which either went to prove it, or circumstances from which it might have been fairly inferred.
The court below being correct in their instruction to the jury on this point, it left the defendants below without even the shadow of a title on their part to the land. The partition of the land, among the heirs, having been made and carried into execution according to the provisions of the agreement entered into between them for that purpose, and each one having taken possession of her allotment, it is [224] clear, that Mrs Clark became invested with the exclusive right to hold in severalty the fee simple estate in her allotment. Her husband acquired no other claim to it, than a right to it during his life by curtesy; unless it were a lien or equitable claim upon it for his 350 dollars paid to Lane. All interest or claim on his part to the land, excepting this, terminated with his life. His wife, after his death, became the absolute owner in fee of that portion of it, the part now in dispute, which remained unsold by her and her husband. The 350 dollars paid by the husband, in order to equalize the partition, whereby something more of the land was obtained than was coming to his wife as her portion of her father’s real estate, were greatly more than repaid to him, by the sale of the fifty-two acres and fourteen perches, part of the land, sold and conveyed by him and his wife to Duncan, one of the defendants below; so that to the residue of the land, which is that now in contest here, he had not the least colour of claim, either in law or equity, which could endure beyond his life. The wife, under the operation of the partition, having acquired a right in severalty to the fee simple in her allotment, could not be divested of it, except by uniting with her husband in making a deed of conveyance for that purpose, acknowledged and' certified in the manner and form prescribed by our acts of assembly passed in that behalf. This she did as to the fifty-two acres and fourteen perches of the land, but in respect to the residue, it is not even pretended, that she ever did. The plaintiffs below, being her heirs at law, were, therefore, clearly entitled to recover.
As this disposed of the whole case, it was, as the court below said, unnecessary to have advanced any opinion upon the second point, in which it is alleged that the court erred. This second point or error, complained of, arises out of the answer of the court to the fourth point submitted by the counsel for the plaintiffs below. By this fourth point, the counsel for the plaintiffs below requested the court to instruct the jury, “that admitting the fee simple in the lands to have been in John Clark at the time of his death, still the lands were not subject to sale and execution by the sheriff”
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The opinion of the Court was delivered by
Kennedy, J.
The first matter complained of as error is, that the court below withdrew from the jury the decision of the question of fact, whether the other heirs, beside Lane and wife, had executed the deed of conveyance that was drawn in favor of John Clark, the husband of Margaret, the mother of the plaintiffs below, conveying to him in fee that portion of the land allotted by the partition to his wife. The court on this point instructed the jury that the evidence, in regard to it, was not sufficient to prove that such deed had been executed and delivered. In this, we are decidedly of opinion, that the court was right. There was no evidence given, which even tended, in the slightest degree, to show that such deed had ever been signed or sealed by any of the heirs, excepting Mrs Lane and her husband, who, it would seem from the evidence, did sign and seal a conveyance, prepared with a view to be signed, sealed and delivered by all the heirs, with the exception of Mrs Clark and her husband, the latter being the sole grantee named in it. No one of the heirs appears to have ever signed it, beside Lane and his wife; nor was it ever delivered to Clark. The evidence then going no further than this, it would have been error in the court below, to have left such a fact to the decision of the jury, as if evidence had been given which either went to prove it, or circumstances from which it might have been fairly inferred.
The court below being correct in their instruction to the jury on this point, it left the defendants below without even the shadow of a title on their part to the land. The partition of the land, among the heirs, having been made and carried into execution according to the provisions of the agreement entered into between them for that purpose, and each one having taken possession of her allotment, it is [224] clear, that Mrs Clark became invested with the exclusive right to hold in severalty the fee simple estate in her allotment. Her husband acquired no other claim to it, than a right to it during his life by curtesy; unless it were a lien or equitable claim upon it for his 350 dollars paid to Lane. All interest or claim on his part to the land, excepting this, terminated with his life. His wife, after his death, became the absolute owner in fee of that portion of it, the part now in dispute, which remained unsold by her and her husband. The 350 dollars paid by the husband, in order to equalize the partition, whereby something more of the land was obtained than was coming to his wife as her portion of her father’s real estate, were greatly more than repaid to him, by the sale of the fifty-two acres and fourteen perches, part of the land, sold and conveyed by him and his wife to Duncan, one of the defendants below; so that to the residue of the land, which is that now in contest here, he had not the least colour of claim, either in law or equity, which could endure beyond his life. The wife, under the operation of the partition, having acquired a right in severalty to the fee simple in her allotment, could not be divested of it, except by uniting with her husband in making a deed of conveyance for that purpose, acknowledged and' certified in the manner and form prescribed by our acts of assembly passed in that behalf. This she did as to the fifty-two acres and fourteen perches of the land, but in respect to the residue, it is not even pretended, that she ever did. The plaintiffs below, being her heirs at law, were, therefore, clearly entitled to recover.
As this disposed of the whole case, it was, as the court below said, unnecessary to have advanced any opinion upon the second point, in which it is alleged that the court erred. This second point or error, complained of, arises out of the answer of the court to the fourth point submitted by the counsel for the plaintiffs below. By this fourth point, the counsel for the plaintiffs below requested the court to instruct the jury, “that admitting the fee simple in the lands to have been in John Clark at the time of his death, still the lands were not subject to sale and execution by the sheriff”
To this the court answered : “ the law is as stated in this point.” In the cases of Trevor v. Ellenberger, 2 Penn. Rep. 94, and Penn v. Hamilton, 2 Watts 53, it wTas virtually decided, that a debt owing by the testator, at his decease, sued for afterwards, and judgment bad for it, against the executors within seven years, continued the lien of the debt upon the real estate of the testator, or deceased, for the space of twelve years from the time of his death, without being revived by scire facias; but if not revived within that period, the real estate becomes released from all liability to the payment of the debt: thus determining that under the act of 1797 it was not only necessary to sue for the debt within the seven years, when payable within that time, and to prosecute it to judgment, but after judgment should be obtained, likewise to prosecute the claim still further, with due diligence, so as to obtain execution of the judgment rendered for it, [225] which is not to be extended beyond five years from the date of the judgment, without a revival by scire facias, when the judgment is obtained after the lapse of seven years from the death of the debtor. This is also to be regarded as carrying into effect the principles of both the cases of Trevor v. Ellenberger, and Penn v. Hamilton; and the principle of the former as explained by the chief justice in the latter. 2 Watts.60. It ought always to be borne in mind, that the judgment against the personal representatives creates no lien upon the real estate of the deceased debtor: it does not change the character of the debt in relation to the deceased’s estate; it merely continues the lien, which arises by operation of law against the real estate of the debtor upon his dying, and would otherwise expire at the end of seven years from his death, according to the limitation contained in the act of 1797. But by an equitable application of the acts limiting the liens of judgments, which require a revival thereof by scire facias every five years, this court have decided that a judgment obtained against the executors or administrators of the debtor, must be revived, not, however, to continue the lien of the judgment, as none was created by it, but the lien of the debt, created by law, immediately upon the event of the debtor’s death, anterior to any judgment being obtained for it. This lien will continue seven years, without suit or judgment, from the death of the debtor; and if a judgment be had for it at any time within that period, then the lien, by means thereof, will be extended five years beyond the seven years; making twelve in the whole; but in order to continue the lien beyond this period, it is requisite that a scire facias should be sued out for this purpose before the expiration thereof, otherwise the lien of the debt upon the real estate will cease at the end of the twelve years from the death of the debtor. When, however, the suit is commenced within the seven years, but judgment cannot be had in it until afterwards, the pending of the suit would seem to be sufficient to keep the lien alive; and the first term of five years would not commence until the rendition of the judgment; so that a revival of the judgment, within five years after its date, would preserve and continue the original lien of the debt for another period of five years. It is obvious, that in the first case, when the judgment is obtained within the seven years, the five years ought not to commence before the expiration of the latter period; for if it were to be held to commence from the date of the judgment, it would be placing the vigilant creditor in a worse condition than the negligent one; and would also be contrary to the express, as well as the plain import and meaning of the act of 1797, which terminates the lien only after a lapse of seven years from the death of the debtor. But if the creditor were to sue and obtain a judgment for his debt within the first year after the debtor’s death, and the first term of five years were to be held to commence from the date of the judgment, his debt against the estate would cease to be a lien before the expiration of six years from the decease of the debtor. It is clear, therefore, that such a rule could [226] not be adopted consistently with the limitation in the act, which never intended that the early commencement of a suit, and obtaining of judgment, should shorten the duration of the lien of the debt. The creditor has a lien allowed to him on the real estate of his debtor, for a period of seven years, without suit. It is, therefore, reasonable, that the effect of the judgment, though obtained in the course of the first year after the death of the debtor, should not commence its operation in keeping the lien alive, until the expiration of the seven years mentioned in the act, and then allow it to do so for the term of five years from that time.
Now it would appear from an application of these principles to the case before us, that the court below erred in directing and instructing the jury, that if Clark, the husband, had been the owner of the land in fee at the time of his decease, it would not have been liable to the payment of the debt at the time it was taken in execution and sold for it. He died on the 27th of December 1819, whereupon the debt would have become immediately a lien upon the land, had he been (he owner of it in fee, and would have continued to be so for the space of seven years thereafter, that is, until the 27th of December 1826, according to the limitation contained in the act of 1797, without any suit being brought, or judgment obtained for it; but a judgment was obtained for it against the administrators of Clark in November 1825, before the seven years had run, which agreeably to the principles laid down above, and contained in the cases of Trevor a. Ellenberger and Penn v. Hamilton, would have extended and continued the lien down to December 1831, a year and more after the land was taken in execution and sold.
The evidence, however, did not raise this question, or render it necessary, in any way, for the court below to pass upon it: nor is it requisite that we should do it here; but to prevent what the court said from being considered the law in regard to it, I have thought it right to present the view which I have given of it. But as this question was not involved in the case, and as the court below decided correctly all that was ruled, the judgment must be affirmed.
Judgment affirmed.