
    SINKETT v. WUNDER.
    April 7, 1827.
    
      Exceptions to auditor’s report.
    
    Of the law and practice relative to writs of scire facias post annum ei diem to have execution and to revive lien,
    [THE decision in this case was made under the act of the 4th of April 1798, Puri. Dig., tit. Judgments. So much only of the opinion of the court is reported, as is applicable to the act of March 26th, 1827. Pamph. Laws 129.]
   The opinion of the court

(Barnes, President; Halloweli,, J.; and Coxe, J.)

was delivered by

Barres, President.

JThe lien of the judgment and the light to an execution upon it are not convertible terms. There may be a lien of the judgment and yet no right to an execution : there may be a right of execution and yet no lien of the judgment. A judgment binds real property though the debt secured by it is not due, and though it does not fall due during the five years, and of course no right to execution ever existed upon it. So that the lien may at(acl) and expire, unless revived according to the provisions of the act, without a right to execution upon the judgment ever having existed. The judgment is a lien only upon the legal and equitable interest which the defendant had in the land at the time it was rendered. An execution on the judgment may be levied on after-purchased land, not bound by the judgment. No agreement of the parlies to a judgment can extend its lien beyond five years. That is, though the parties should agree, and so enter upon (lie docket, that the judgment should be a lien for a longer term than five years, nevertheless, as against third persons favoured by the act, the judgment is a lien for only five years. Nor can the parties, by indirect means, do that which the law prohibits their doing by direct and open stipulation. But the right to issue an execution is subject to the agreement of the parties, because the limitation of the right is for the benefit of the defendant, and may be waived by him. This limitation is a year and a day from the entering of the judgment, or more correctly speaking from the right of execution on the judgment; but if the plaintiff has taken out execution within that time, he may pursue it to satisfaction thereafter. If the execution is unproductive, he may have an alias or pluries or even another kind of execution. The law adjudges the right of execution to be forfeited by the plaintiff’s laches, but when It appears that the plaintiff has not been guilty of laches, there is no loss of right.

But the right to execution, or the loss of it, in no respect alters or affects the lien of the judgment. If the execution is levied during the lien of the judgment, the lands so levied on may be sold by ven-ditioni exponas after lien has expired. Such proceedings give the plaintiff a right distinct from the lien of his judgment; they place the property in pledge, in custodia legis for the plaintiff’s debt. It is like the plaintiff’s levying his execution on after-purchased property of the defendant, not bound by the judgment; if, after such levy, judgment is entered against the defendant, the lien of that judgment does not divest the plaintiff’s right under his execution; he may proceed to sell in payment of his judgment, though his judgment is no lien on the property, and the subsequent judgment is.

After the plaintiff’s right to execution has been lost, his remedy is by a new action, and this action must be founded on the judgment, when the judgment has extinguished the security upon which it was given. But if the judgment was founded upon a previous judgment, he may sue upon either, because the second judgment is no extinguishment of the first. With us the action of scire facias post annum et diem differs in the form of proceeding from an action of debt on the judgment. No notice is required to be given to the terre-tenants, for the lien of the judgment upon which it is founded is not to be brought into question, nor even to the defendant himself, two nikils being equal to service ; but the judgment, as in debt, is for life amount of the original judgment and interest, from the date of that judgment to the time of the judgment on the scire facias. If the defendant appears to the scire facias, he may make the same defence to the action that he could to an action of debt on the judgment; the judgment itself cannot be impeached in either form of action, the only inquiry being whether the judgment has been released or satisfied. The lien of a judgment given on a scire facias to have execution may bind more or less property than the original judgment. It binds the property purchased after the original judgment, and remaining in the hands of the defendant; but it does not bind property previously conveyed, though such property was bound by the original judgment. The lien of the original judgment is in no respect altered or affected by (he judgment obtained on a scire facias to have execution. If it be intended to affect the lien of that judgment, to revive and extend it, the provisions of the act of assembly must be pursued.

The judgment of revival under the act creates no new lien ; it is but a continuation, for five years, of the lien already existing. After-purchased property is not bound by the mere revival, nor will the judgment of revival alone entitle the plaintiff to execution. A judgment may be revived under the act, though a right to execution never existed upon it, and though it may not exist during the term for which it is revived. Where the debt secured by the judgment is due, there is, perhaps, no insurmountable objection to the uniting in the same process a scire facias post annum et diem, with a scire facias to revive under the provisions of the act.

The profession, however, I should suppose, would desire to keep the two proceedings separate. Great confusion has arisen in our practice, and some uncertainty in the law, from a too great neglect of forms. The proceedings by scire facias under the act to revive and extend the lien of the judgment have no great resemblance to the proceeding's on scire facias to have execution.

The service is different, the issue may be different, the judgment is different. To state these at large would be but to repeat the plain and familiar provisions of the act. If the scire facias to revive is not issued within five years from the day of the term on which the judgment is entered, the lien of the judgment is irrecoverably lost. If issued within that time, the lien of the judgment may be continued on a part of the property bound by the judgment, and not on the whole. As where the terre-tenant, alienee of a part, of the property bound by the judgment, is not served with process, and does not appear to the scire facias, tire hen is not. revived by the judgment against the property in his possession. But if there are several alienees of different parts of the property bound by the judgment, and one only is served with process, he shall not be required to answer till the oilier terre tenants are wanted, because they are all contributory to the judgment. The rule may be the same where títere are two defendants having property bound by the judgment, and only one is served with process. But if the defendant who is alone served, appears to the action, and consents that she lien of the judgment shall be revived and extended against his property bound by the judgment, there is nothing irregular or illegal in his doing it. The judgment continues as before, a judgment against, both defendants, though the hen of the judgment be lost as respects the property of one of them. The execution, ns before the judgment of revival, must go against both defendants, or if the tight to execution is lost, the scire facias to have execution must issue, against hoth defendants. The judgment continuing the lien does not, in any respect, alter the parties to the judgment creasing the líen ; they remain precisely as they were, whether the judgment, be revived against the whole or only a part of tire property bound by it.

If the plaintiff could have taken adversary process against both defendants, nod had it served upon one and taken a judgment of revival against Iris property only, the same may be done, by amicable agreement, if tire rights of third persons are not thereby affected. That the plaintiff ruay, by means of such process, obtain such a judgment, appears clear to my mind. Who can object'? Not the defendant who was not served with process, and against whose property the lien of the judgment is lost; he is either not affected at all or is benefited by it. Not the defendant who was served, and against whom the lien is continued, for lie consented to it. The only persons who can object are the lien creditors of the defendant, against whom the judgment of revival has been entered.

If they are terre tenants, or alienees, the law provides that they must be notified, or the judgment of revival does not affect their interests. It is the judgment creditors alone of the defendant, against whom the lien is continued, who can be supposed to have any interest. In one sense they have an interest, that the lien of the judgment should be continued against the property of she other defendant, but it is not such an interest as the law can define or protect. If the proceeds of the property of both defendants bound by the judgment were in court, and there were several claimants, creditors of each, the court might apportion the fund according to equity; but we possess no power over the plaintiff by which we can compel him to preserve the lien of his judgment entile, 01 to levy his execution on different parts of the property bound by the judgment. He may select upon which lie will levy; he may even idease separate parts of the property from the lien of the judgment, and preserve it as to the rest; what the plaintiff can do directly, and in terms, may be done indirectly and by means of process to revive and extend the lien.

The defendant, alienee, terre tenant, and indeed all parties interested, mayg by agreement, waive process, and cure all irregularities in the formula of proceedings to which they are parties, but no agreement can supply, enlarge or alter the legal effect of a judgment of revival. The lien of a judgment can be continued only by means of a judgment of revival, and unless the record shows that the alienees and terre tenants were parties to the proceedings, the lien of the judgment is not revived against them.

Therefore an agreement by an alienee dehors the judgment of revival, that the lien shall continue upon the property in his possession, is, to say the most of if, a mere nullity as respects third persons having an interest, whether purchasers or judgment creditors. 
      
      ⅛) Act o! March 26, . ’The aw of the 4th of April 1796 limited the lien to five years from the first return dan of the term of which the jiulgmeni was entered.
     
      
       See Lesher v. Gillingham, 17 Serg. & Rawle 123; Boal's Appeal, 2 Rawle 37 Ramsey v. Linn. 2 Rawle 229; Clippinger v. Miller, 1 Peens. Rep. 64; Steinbridge's Appeal. 1 Penns. Rep. 481; Patterson v. Cummin, 2 Penns. Rep. 520; Metzgar v. Kilgore, 3 Penns. Rep. 245; Lusk v. Davidson, 3 Penns. Rep. 229; Poole v. Williamson, 4 Rawle 317; Vitry v. Daucé, 3 Rawle 9; Downey's Appeal, 2 Watts 9; Penn. v. Hamilton, 2 Watts 53; Crawford v. Crawford, 2 Watts 339; Comm. v. Baldwin, 2 Watts 54; Evans v. Duncan, 4 Watts 24; Ramsey's Appeal, 4 Watts 71; Dietrich's Appeal, 4 Watts 208; Meason's Estate, 4 Watts 341; Fetterman v. Murphy, 4 Watts 424.
     