Graff v. Kip

1 Edw. Ch. 619

• Court: New York Court of Chancery
• Decided: April 30, 1833
• Status: Published

Opinion

The Vice-Chancellor.

The case of Ex parte Peru Iron Company , 7 Cowen, 540, settles this question. The observations there made by Chief Justice Savage at page 553 are to be taken as more than a mere dictum. I have had a conversation with the Chief Justice; and I find the court intended to decide, that a revival of a judgment by scire facias creates no new lien. The effect of it is merely to make the issuing of an execution regular ; and not to extend or change the nature of the lien as to the judgment itself. A plaintiff must take care to sell the lands of the defendant before the expiration of the ten years, in order to avoid the danger of other incumbrances intervening : or if he wishes to continue a lien without a sale, then he must have a fresh judgment dockctted before other creditors come in and obtain judgments. Little v. Harvey, 9 Wend. 157.

In this case, the judgment obtained by Mr. Fish has lost its preference over the Kip judgment, notwithstanding the revival by scire facias,