The opinion of the court was delivered by
Kennedy, J.
The only question presented by the facts of the case, as stated for the opinion of the court below is, whether the real estate of James Steel, the testator of the defendants below, which, upon his death, became bound by operation of law, and also by his will, for the payment of his debts, among which was the debt owing by him to William Henry, the testator of the plaintiffs below, be still bound or not for this debt. The court below being of opinion that the debt still continued to be a lien upon the real estate, rendered a judgment in favour of the plaintiff below. But. the defendants there being dissatisfied with the decision of the court, have, by writ of error, brought it here. They claim that the lien of the debt upon the real estate of their testator has become extinct through lapse of time, and the neglect of the creditor and his personal representatives to keep it alive, by suing out a writ' of scire facias for that purpose upon the judgment obtained for' the recovery of the debt, in every successive term, thereafter, of five years from the date of the judgment, or, at most, from twelve years after the death of the debtor. In answer, however, to this, it may be observed, in the first place, that the debt having become, the instant that the debtor died, a lien, by operation of law, upon the [527]*527real estate -which he left, would have continued to be so without limitation until paid, had it not been for the act of 1797, which limited the lien so created to a period of seven years after his death, unless a suit were commenced within that time, and duly prosecuted, for the recovery' of the debt. But a suit was commenced, and a judgment obtained thereon for i,t, within less than two and á half years after the death of the debtor. Then, according to the decisions of this court, this of itself, without more, was sufficient to continue the lien for a period of twelve years from the debtor’s death. But, besides this, the judgment so obtained, was not suffered to sleep, at any one period of time, up to the year 1830, so much as two years and a half, without a proceeding upon it, either by execution to enforce the payment of it, or a scire facias to revive it. Then the defendants, on the 20th of November 1830, arrested the proceeding of the plaintiffs to have execution of the judgment, by obtaining a rule on the plaintiffs to show cause why a seizure of the real estate of the debtor, made under a previous fieri facias, sued out on the judgment, should not be set aside. On the 22d of March 1832, this rule was made absolute by the court)' and at the same time, on the application of the defendants, the judgment obtained last on a scire facias was opened, so as to let the defendants into a trial to show payment of the original judgment. By this order all further proceeding to have execution of the judgment was necessarily suspended until the question of payment could be tried, which was not until the 8th of November 1834, when, upon a trial of an issue joined on the -plea of payment, put in by the defendants, a judgment was obtained in favour of the plaintiffs for 668 dollars 40 cents. Upon this judgment a scire facias was issued to April term 1S36, and then an alias again to August term in the same year, upon which a judgment of revival was obtained at November term 1836. Upon this last judgment a fieri facias as sued out to April term 1S37, and delivered to the sheriff of the county, who thereupon returned a seizure of the real estate belonging to the debtor at the time ’ of his death, which was followed by suing out a writ of venditioni-exponas to the succeeding August term, when a rule, upon the application of the devisees (that is the defendants and some others, perhaps,) of the debtor, was granted by the court on the plaintiffs, to show cause why the levy and judgment, and all subsequent proceedings in the cause, should not be set aside. This last order of the court seems to have produced the case, stating the facts, upon which the court below rendered judgment, made with a view to have the question, already mentioned, finally settled, before a sale of the estate should be made.
This court, in the case of Penn v. Hamilton, 2 Watts 53, in giving a construction to the act of 1797, limiting the lien of a debt of a deceased debtor upon his real estate to a period of seven years from his death, unless a suit were commenced for the recovery of ■it within that time, and duly prosecuted, held,-in order to determine [528]*528what should be deemed a due prosecution of the suit so commenced, that the requisites of the act of 1798, for continuing the liens of judgments obtained against debtors themselves, upon their real estates, beyond the term of five years from the dates respectively of such judgments, might be taken and applied as a rule of decision. Consequently, then, whatever would have been sufficient, under this latter act, for continuing the lien of a judgment obtained against a living debtor, upon his real estate, would be equally so for keeping alive the lien of a debt against a deceased debtor’s real estate, after a judgment shall have been obtained against his personal representatives for the recovery of it.
But I apprehend that, under the construction given by this court to the act of 179S, the proceedings had upon the original judgment in this case, would have been all-sufficient to have preserved and continued the lien of it upon the real estate of the defendant, if it had been a judgment against the debtor himself. The principle of the act of 1798 was not applied to the case of Penn v. Hamilton, because it was thought that the legislature intended that it should extend to such a case, or to original judgments obtained against the representatives of deceased debtors, but was adopted by the court, and applied to it upon the ground of analogy, and its furnishing a reasonable rule, as it was conceived, by which it might be ascertained, whether the proceedings upon a judgment have been duly prosecuted or not, in order to obtain execution of it. The acts of 1827 and 1S29, relative to the liens of judgments, and prescribing the mode to be observed and pursued with a view to continue such liens in force, have no application to judgments obtained against the personal representatives of deceased debtors; and not being very reasonable in some of their provisions, as regards the continuance of the liens under judgments obtained against the debtors themselves, it is therefore not very probable that courts will ever be disposed to extend their principles to cases not falling within either the letter or spirit of these acts.
It is not necessary, however, to decide the question raised in this case upon the ground thus presented, because there is a second ground upon which, according to the decision of this court in Alexander v. Murray, 8 Watts 504, it is to be determined, clearly, in favour of the plaintiffs below. The testator of the defendants below charged by his icill the debt in question, as also all his other debts, upon his real estate; and in case his personal estate should prove insufficient to meet the payment of them, he also directs that his executors shall sell his real estate, and out of the money arising therefrom, first pay all his debts remaining still unpaid; and not until after his debts shall be paid does he devise any portion of his real estate, or bequeath any part of the proceeds arising from a sale thereof to any one.
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The opinion of the court was delivered by
Kennedy, J.
The only question presented by the facts of the case, as stated for the opinion of the court below is, whether the real estate of James Steel, the testator of the defendants below, which, upon his death, became bound by operation of law, and also by his will, for the payment of his debts, among which was the debt owing by him to William Henry, the testator of the plaintiffs below, be still bound or not for this debt. The court below being of opinion that the debt still continued to be a lien upon the real estate, rendered a judgment in favour of the plaintiff below. But. the defendants there being dissatisfied with the decision of the court, have, by writ of error, brought it here. They claim that the lien of the debt upon the real estate of their testator has become extinct through lapse of time, and the neglect of the creditor and his personal representatives to keep it alive, by suing out a writ' of scire facias for that purpose upon the judgment obtained for' the recovery of the debt, in every successive term, thereafter, of five years from the date of the judgment, or, at most, from twelve years after the death of the debtor. In answer, however, to this, it may be observed, in the first place, that the debt having become, the instant that the debtor died, a lien, by operation of law, upon the [527]*527real estate -which he left, would have continued to be so without limitation until paid, had it not been for the act of 1797, which limited the lien so created to a period of seven years after his death, unless a suit were commenced within that time, and duly prosecuted, for the recovery' of the debt. But a suit was commenced, and a judgment obtained thereon for i,t, within less than two and á half years after the death of the debtor. Then, according to the decisions of this court, this of itself, without more, was sufficient to continue the lien for a period of twelve years from the debtor’s death. But, besides this, the judgment so obtained, was not suffered to sleep, at any one period of time, up to the year 1830, so much as two years and a half, without a proceeding upon it, either by execution to enforce the payment of it, or a scire facias to revive it. Then the defendants, on the 20th of November 1830, arrested the proceeding of the plaintiffs to have execution of the judgment, by obtaining a rule on the plaintiffs to show cause why a seizure of the real estate of the debtor, made under a previous fieri facias, sued out on the judgment, should not be set aside. On the 22d of March 1832, this rule was made absolute by the court)' and at the same time, on the application of the defendants, the judgment obtained last on a scire facias was opened, so as to let the defendants into a trial to show payment of the original judgment. By this order all further proceeding to have execution of the judgment was necessarily suspended until the question of payment could be tried, which was not until the 8th of November 1834, when, upon a trial of an issue joined on the -plea of payment, put in by the defendants, a judgment was obtained in favour of the plaintiffs for 668 dollars 40 cents. Upon this judgment a scire facias was issued to April term 1S36, and then an alias again to August term in the same year, upon which a judgment of revival was obtained at November term 1836. Upon this last judgment a fieri facias as sued out to April term 1S37, and delivered to the sheriff of the county, who thereupon returned a seizure of the real estate belonging to the debtor at the time ’ of his death, which was followed by suing out a writ of venditioni-exponas to the succeeding August term, when a rule, upon the application of the devisees (that is the defendants and some others, perhaps,) of the debtor, was granted by the court on the plaintiffs, to show cause why the levy and judgment, and all subsequent proceedings in the cause, should not be set aside. This last order of the court seems to have produced the case, stating the facts, upon which the court below rendered judgment, made with a view to have the question, already mentioned, finally settled, before a sale of the estate should be made.
This court, in the case of Penn v. Hamilton, 2 Watts 53, in giving a construction to the act of 1797, limiting the lien of a debt of a deceased debtor upon his real estate to a period of seven years from his death, unless a suit were commenced for the recovery of ■it within that time, and duly prosecuted, held,-in order to determine [528]*528what should be deemed a due prosecution of the suit so commenced, that the requisites of the act of 1798, for continuing the liens of judgments obtained against debtors themselves, upon their real estates, beyond the term of five years from the dates respectively of such judgments, might be taken and applied as a rule of decision. Consequently, then, whatever would have been sufficient, under this latter act, for continuing the lien of a judgment obtained against a living debtor, upon his real estate, would be equally so for keeping alive the lien of a debt against a deceased debtor’s real estate, after a judgment shall have been obtained against his personal representatives for the recovery of it.
But I apprehend that, under the construction given by this court to the act of 179S, the proceedings had upon the original judgment in this case, would have been all-sufficient to have preserved and continued the lien of it upon the real estate of the defendant, if it had been a judgment against the debtor himself. The principle of the act of 1798 was not applied to the case of Penn v. Hamilton, because it was thought that the legislature intended that it should extend to such a case, or to original judgments obtained against the representatives of deceased debtors, but was adopted by the court, and applied to it upon the ground of analogy, and its furnishing a reasonable rule, as it was conceived, by which it might be ascertained, whether the proceedings upon a judgment have been duly prosecuted or not, in order to obtain execution of it. The acts of 1827 and 1S29, relative to the liens of judgments, and prescribing the mode to be observed and pursued with a view to continue such liens in force, have no application to judgments obtained against the personal representatives of deceased debtors; and not being very reasonable in some of their provisions, as regards the continuance of the liens under judgments obtained against the debtors themselves, it is therefore not very probable that courts will ever be disposed to extend their principles to cases not falling within either the letter or spirit of these acts.
It is not necessary, however, to decide the question raised in this case upon the ground thus presented, because there is a second ground upon which, according to the decision of this court in Alexander v. Murray, 8 Watts 504, it is to be determined, clearly, in favour of the plaintiffs below. The testator of the defendants below charged by his icill the debt in question, as also all his other debts, upon his real estate; and in case his personal estate should prove insufficient to meet the payment of them, he also directs that his executors shall sell his real estate, and out of the money arising therefrom, first pay all his debts remaining still unpaid; and not until after his debts shall be paid does he devise any portion of his real estate, or bequeath any part of the proceeds arising from a sale thereof to any one. Thus the debt in question became a lien upon the real estate of the testator without any limitation annexed, either by law or by the will. The authority, moreover, given by the will to the [529]*529executors to sell the real estate, and with the proceeds thereof to pay the debts in the first place, created a trust, which they, after having made probate of the will, and taken letters testamentary thereon, were bound to exercise and discharge according to the tenor and effect of the will. This, however, they neglected to do, and the widow, who is here one of the defendants, with her present husband, being executrix, jointly with two others, of the will, notwithstanding their violation and disregard of the trust, is attempting now to have the real estate discharged from the payment of the plaintiff’s claim, without paying any portion of it whatever. The widow, it is true, has a considerable interest in the real estate, but neither she, nor any of the devisees or legatees can claim any thing under the will, even according to its tenor, until the debts are all paid. To decide, therefore, that the claim of the plaintiffs below has ceased to be a lien upon the real estate off the defendants’ testator, would in effect be preferring the claims of his devisees and legatees to those of his creditors, which would be in direct contradiction to the express direction of his will. This can not be, for it would not only be contrary to every principle of law, justice, and equity, but would be permitting the defendants below to take advantage of their own wrong, in not having exercised the power 'and discharged the trust according to the tenor of the will, and, in fact, giving them what they had no claim to, either in law or ,'equity. In Alexander v. Murray, the defendant had some appearance of equity on his side; but here', the defendants below are without even the slightest colour of it. ,We therefore think, that the court below were right in giving judgment for the plaintiff.
Judgment affirmed.