
    [Philadelphia,
    December 26, 1827.)
    LESHER against GILLINGHAM.
    Prior to the act of the 24th of March, 1827, an amicable agreement to revive a judgment, duly entered on the docket within five years, was a sufficient judgment of revival, as well against subsequent mortgagees, as against the defendant in the judgment.
    By virtue of a writ of venditioni exponas, issued in this cause, the sheriff sold the real estate therein described, for the sum of one thousand five hundred dollars, and paid the money, after deducting his costs, &c., into court. On the 30th of July, -1S27, an auditor was appointed to examine and report on the liens, who, on the 15th of September, 1827, reported,
    That, on the 10th of May, 1817, Stacy Gillingham, the defendant, executed? to Isaac .Worrell and Nathan 'Harper, a bond conditioned for the payment, in one year, of nine hundred and fifty dollars, with lawful interest; and, to secure the payment thereof, executed a mortgage, bearing the same date, to the said Isaac and Nathan, upon a messuage or tenement, and lot or piece of ground, situate in the borough of Frankford, in the county of Philadelphiaf 
      which premises the said Isaac Worrell and Nathan Harper, by deed poll, bearing even date therewith, had granted to the said Stacy Gillingham. This mortgage was not recorded until the 13th of Upril, 1819. -
    On the 27th of February, 1819, Stacy Gillingham executed to Jacob Lesher, the plaintiff, a bond conditioned for the payment of one thousand six hundred dollars, in one year, with interest.- On the 8th of Upril, 1819, judgment was entered, by confession, on the bond, in the Supreme court to March term, 1819. On the 16th of January, 1824, an agreement was entered into, between J. Y. Castor, Esq., attorney for the plaintiff, and Stacy Gillingham, the defendant, whereby it was agreed that judgment should be entered for-the plaintiff, in an amicable action of scire facias, to revive the preceding judgment, as though a writ had been regularly issued, and returned llmade known.” An amicable action of scire facias, to revive the judgment, was accordingly entered on the docket to March term, 1824, No. 12, and judgment was entered for the plaintiff, for the sum of sixteen hundred dollars, with interest from the 27th of February, 1823;
    On the 1st of May, 1826, a scire facias quare executio non issued .on this judgment, to July term, 1826, which was returned nihil.
    
    To December term, 1826, mi alias scire fdcias was issued, which was also returned nihil.
    
    
      A. fieri facias, issued to March term, 182*7, and a venditioni exponas, to July term, 1827, by virtue of which the real.estate of the defendant was sold, and produced the sum of eight hundred and fifty dollars.
    ' Other incumbrances existed on the real estate of the defendant, but none prior, in date, to 'the above.
    If the original judgment of Lesher has been duly revived, he is entitled to the whole of the fund in court, and the auditor is of opinion that the spirit of the act of assembly, and the common practice under it, which seems to have been countenanced by many decisions of the court, justify him in regarding an amicable agreement to revive a judgment, duly entered on the docket within five years, as a sufficient judgment of revival, as well against a Subsequent mortgagee, as against the defendant in the judgment, and reports that Jacob Lesher, the plaintiff,'is entitled to the money in court.
    To this report the following exceptions were filed:
    1. The auditor erred in reporting that an amicable agreement to revive a judgment, duly entered on the docket within five years, is-a sufficient judgment of revival, as well against a subsequent mortgagee, as against the defendant" in the judgment. .
    2. The auditor erred in reporting that Jacob Lesher is entitled to all the money in court, and should have reported that Isaac Wo?’rell and Nathan Harper are entitled to receive eight hundred and fifty -dollars, the amount for which the property mortgaged to them was sold.
    
      
      A. Randall, in favour of the exceptions,
    referred to the Act of Assembly,- Purd. Dig. 391, which is positive that a scire facias must issue: the act directs the service and the form of the judgment. 3 Binn. 342.
    This would certainly not be good against purchasers who are entitled to notice. ' -
    
      Castor, contra.
    
    This has been a common mode of revival, and many titles depend, on it. 1 Peters, 438.- A practice may even control an express rule of law. An amicable action • answers every intent of a scire facias. The decisions of the several inferior courts have uniformly sustained this mode.
    
      Chauncey, in reply.
    Judgment creditors were to be protected, a fortiori mortgagees. He may have made his arrangement with the terre-tenant, to be informed of the writ. When he takes his security, he does so by searching the records. 13 Serg. & Rawle, 145. This matter is now altered by the act of the 26th of March, 1827, Pamp. 129; so that it can be revived by agreement of parties and terre-tenants.
   The opinion of the court was delivered by

Rogers, J.

The precise question, raised in this case, has not heretofore been the subject of judicial investigation, — whether an amicable agreement to revive a judgment duly entered on the docket within five years, is a sufficient judgment of revival, as well against a subsequent mortgagee, as against the defendant in the judgment. The facts are fully set forth in the case stated. A dictum of one of the Presidents of the Courts of Common Pleas, in .relation to the construction of the act of the 4th of April, 1798, caused some alarm in the state, as the practice had prevailed to revive judgments by amicable action; and it was understood that a considerable amount of property depended on the regularity of the proceeding. Undoubtedly, as between the parties themselves, an- amicable action continues the lien; for a defendant has a right to waive a scire facias and confess judgment, to avoid the expense and trouble of an adverse suit, and this independently of the act passed at the last session of the legislature. Although the preamble Of the act speaks only of purchasers of real estate, yet it has been held in The Bank of North America v. Fitzsimons, 3 Binn. 342, that a judgment, not revived by scire.facias, within five years from its date, ceases to be a lien on real estate, as well against subsequent judgment creditors, as against subsequent purchasers. In the case in Binney, no scire facias was ever issued, nor even any steps taken to continue the lien of the judgment. It would be too much to insist, thát-when an amicable action had been entered, and judgment obtained, it could be treated so far a nullity, as to let in subsequent purchasers, or. judgment creditors, or mortgagees. It would be contrary to the equity and intent of the statute; for they would not be within its protection, which was intended to prevent the risk and inconvenience to purchasers of real estate, by suffering judgments to remain, for an indefinite length of time, without any process to continue or revive.the same. The object of the act is to give notice of the- existence of the debt, which is as effectually done by an amicable action, as by a strict pursuance of the direction of the statute. If this be so, the judgments mesne, between the original judgment and revival, are in no better situation. They do not give credit to the defendant, on the faith of their being no lien against him. On the contrary, they are well aware that such liens exist. The act is not intended to protect their rights, but they are left to their remedy at common law. If judgments are kept ón foot, by fraud or collusion, the remedy is open .to creditors, by application to the court, who, on proper proof, will openjhe judgments, and let the creditors into a defencé. That purchásers were principally in the view of the legislature, appears as well from the preamble as the third section, which directs service of the writ on the debtor or his representatives, and on the terre-tenant, a person occupying the real estate bound by the judgment. It does not extend to a judgment creditor or mortgagee, who are not in the actual possession of the premises, as it,was intended for the special.benefit óf the alienee, giving him an opportunity, on the scire facias, of investigating the claim, and showing the judgment invalid or paid.- It has been contended, that a mortgagee stands in the situation of the terre-tenant, and is entitled to notice.. This has neither been practiced, nor does it, in my opinion, come within the words or spirit of .the act. A mortgage is a mere security for á debt, and the mortgagee, so far' as respects this question, is in no better situation than judgment creditors. ; , • . .

Report confirmed.  