Ruth's Appeal

54 Pa. 173, 1867 Pa. LEXIS 85

• Court: Supreme Court of Pennsylvania
• Decided: February 4, 1867
• Status: Published

Opinion

The opinion of the court was delivered, by

Read, J.

The judgment of Pennypacker against Frame was not revived by scire facias, for eleven days after the five years had expired, and the effect was that a junior judgment in full life became a prior lien. It is, however, supposed, that because Pennypaeker’s original judgment was for the purchase-money of the property, and was entered upon a bond and warrant of attorney, stating that fact, which appeared on the record, as stated by the auditor, that this is equal to a recorded mortgage, and that its lien cannot be lost, although not revived within five years. It has been assimilated to the case of an unrecorded mortgage, of which a judgment-creditor had notice, but Britton’s Appeal, 9 Wright 172, shows clearly that mortgages have very different properties from judgments. “ They are in form defeasible sales, and in substance, grants of specific security, or interests in land for the purpose of security: Ejectment may be maintained by a mortgagee or he may hold possession on the footing of ownership, and with all its incidents.” An unrecorded mortgage with notine to a subsequent mortgagee or purchaser or judgment-creditor retains its priority, but can it be said that a bond and warrant of attorney with notice to a subsequent judgment-creditor can make the judgment entered on it afterwards a prior lien ?

Pennypacker’s judgment lost its lien by want of statutory revival, and of course the Worthington judgment held by Mr. Strickland has the prior lien and must be first paid.

Decree affirmed.