
    Ambrose, Adm’r., et al. v. Byrne, Ext’r.
    
      Judgment lien — On debtor's land at his death — Issue of execution not necessary, when — Lien takes priority in proceeds of land— Limitations as to time op action against executors.
    
    1. Where a judgment is a subsisting lien on the lands of the debtor at the time of his death, it is not necessary thereafter to issue execution upon it in order to preserve the lien. It is entitled to share in the proceeds of the land, when sold by the personal representative, according to its priority at the time of the debtor’s death, although execution be not issued thereon within five years from its rendition or the date of the last execution.
    2. The allowance of the claim by the personal representative, or its presentation to him for that purpose, is not requisite to the judgment creditor’s right to share in the fund.
    3. Pleading the lien by the judgment creditor in an action brought by the personal representative to sell the land for the payment of debts, is not the commencement of an action within the purview of the statute limiting the time within which actions may be commenced against executors and administrators.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Franklin county.
    On the 21st day of July, 1888, Luke G-. Byrne, as executor of the last will and testament of Elizabeth J. Kent, deceased, commenced an action in the court of common pleas to bring to sale the real estate of which the testatrix died seized, for the payment of her debts, she having left no personal property of any consequence. Charles Higgins, and Edward J. Dowdall as executor of the estate of Joseph Dowdall, deceased, who, it was alleged, claimed a judgment lien on the land, were made defendants. Their lien was set up by Higgins, and Samuel Ambrose who had become the administrator de bonis non of-the estate of Joseph Dowdall, by filing the following pleading:
    “The said Ambrose, as such administrator, and the said defendant, Charles Higgins, jointly represent to the court that heretofore, to-wit: on the 24th day of October, 1876, in a certain action in this court then pending, wherein the Central Bank of Columbus, Ohio, was plaintiff and the said Elizabeth J. Kent, then in full life, this defendant, Charles Higgins, and the said Joseph Dowdall, then in full life, were defendants, prosecuted upon a certain promissory note, upon which the said Elizabeth J. Kent was principal and the said Joseph Dowdall and said Charles Higgins were her sureties, said Bank recovered a judgment against the defendants to said action, by the consideration of this court, upon said note, for the sum of $201.30, with interest thereon from that day, together with its costs therein expended, taxed at $10.10. On the 14th day of November, of said year 1876, the said Central Bank, caused an .execution to be issued upon said judgment to the sheriff of said Franklin couty, Ohio, who, for want of goods and chattels of the said Elizabeth J. Kent, whereon to levy for the satisfaction thereof, levied the same upon certain real estate then owned by the said Elizabeth J. Kent, in said county of Franklin, of which real estate the premises described in the petition form a part.
    Afterwards, to-wit: on the 20th day of April, A. D., 1880, the said Central Bank sold and assigned to the said Charles Higgins and the said Joseph Dowdall, said judgment for a full and valuable consideration, and the said Charles Higgins and the said Joseph Dowdall became the owners, both at law and equity, of said judgment. After-wards, to-wit: on the 1st day of November, A. D., 1881, said Charles Higgins and said Joseph Dowdall caused an alias execution to be issued on said judgment against the said Elizabeth J. Kent, which said execution was returned unsatisfied.
    The said Elizabeth J. Kent died in 1883, as averred in the petition, and said judgment lien acquired by said judgment and the levy of execution on said real estate, was in full force at the time of the death of said Elizabeth J. Kent, and has ever since so remained, the same not having been paid, either in part or whole, and there is due and payable thereon to this defendant, the said Charles Higgins, and the said Samuel Ambrose, as administrator as aforesaid, jointly, from the estate of said Elizabeth J. Kent, the sum of $211.40, with interest thereon from the 24th day of October, 1876. These defendants, therefore, say by reason of the sale and assignment, of the said judgment by the said Central Bank to the said Charles Higgins and the said Joseph Dowdall, that they should be, here, subrogated to all the rights of the said bank in and to the said judgment at the time of the said sale, and should now be, here, adjudged to hold both a lien at law and in equity upon said real estate to the extent of said judgment, with interest thereon as aforesaid, together with the amount of said costs.
    These defendants, therefore, here pray that the court may find and adjudge their said claim to be a valid lien on said premises, and that the said executor may be ordered to allow and pay the same out of the proceeds of said property, when sold by him, according to its priority, with other liens thereon. These defendants pray for such other and further relief to which in the premises they may be entitled.”
    The court of common pleas sustained a general demurrer filed by the plaintiff to this pleading, and dismissed the same; and that judgment was affirmed by the circuit court.
    
      G. J. Marriott, for plaintiffs in error.
    That the judgment was not dormant at the time of Mrs. Kent’s death is apparent. An execution issued and was levied upon said premises on November 14, 1876, which kept the judgment alive until November 14, 1881.
    The execution issued on November 1, 1881, kept the judgment alive until November 1, 1886 long after Mrs. Kent’s death on March 15, 1883. See section 5380, Revised Statutes.
    The judgment not being dormant at the time of Mrs. Kent’s death, could the lien thereof be lost, thereafter, on account of the failure to issue another execution thereon? We say not, for the policy of the law is not to allow executions to be levied upon the property of a deceased person for the payment of his debts, but on the contrary, to work out the settlement of his estate through the administration laws. Where an execution cannot be levied, the law does not require the suing out thereof merely to keep alive a judgment lien. Massie v. Long, 2 Ohio Rep., 287; Cartney v. Reed, 5 Ohio Rep., 221.
    No creditor can work out the payment of a lien for a debt upon a deceased person’s property, except through an executor or administrator.
    
      The executor or administrator is required to sell the real estate of the deceased to pay debts where it is necessary so to do-. See section 6136, Revised Statutes.
    From the time of the death of a party owing debts and leaving an estate, his property from that moment is in the custody of the law for administration. See section 5994, Revised Statutes.
    The statute declares how money arising from the sale of real estate by an executor or administrator to pay debts, shall be distributed. See section 6165, Revised Statutes.
    It is a fact that the judgment lien was in full force at the time of the death of Mrs. Kent, and we contend that it could not become dormant thereafter, within the meaning of that term, and thereby defeat the payment of the lien by the executor, in the distribution of the proceeds of the sale of the premises. Webster v. Dennis, 4 C. C., 313; Scott v. Dunn, 26 Ohio St., 63.
    It is true the executor did not file his petition to sell the real estate of the deceased for some five years after her death, yet this fact does not affect the question in the least. It was the duty of the executor to file his petition as soon as he discovered that the personal property was not sufficient to pay the debts. Whether he made his application therefor as soon as he should have done, is a matter of no consequence, so far as plaintiffs in error are concerned, if we are right in our contention.
    Section 5380 forms a part of the general statutes relating to civil actions in the common pleas courts and the enforcement of judgments therein against those living, but has no application to the collection of judgments against parties subsequently dead. It is general in its provisions and application, and does not interfere with the provisions of a statute relating to a special subject and providing for a particular matter.
    Section 6165, Eevised Statutes, is in the nature of a special statute, relating to a special subject, to-wit: that of the distribution of the proceeds of sales of real estate made by executors or administrators to pay debts of deceased persons.
    It does not and cannot apply to the distribution of the proceeds of sales of real estate in any other cases, and hence is special in its application.
    It is a well-known rule of construction of statutes, that where there is a general provision in regard to the method of procedure regarding several subjects, followed by a special provision as to the procedure in regard to one or more of such subjects, the special provision will govern. Tyler v. City of Columbus, 6 C. C., 228; Crawford v. McGregor, 44 Ohio St., 628.
    In the case of the revivor of a dormant judgment under section 5369, Eevised Statutes, against the real or personal representatives of a deceased judgment debtor, the statute clearly contemplates a judgment that had become dormant prior to the death of the judgment debtor. The object is to re-instate the judgment lien upon the lands upon which it operated of the deceased, as of the date of the order or the filing of the petition therefor.
    A judgment lien which had become dormant in the lifetime of the judgment debtor, could not be enforced against his real estate after his death except by revivor, at the date of which, it is revived with all of its incidents as between the parties. Norton v. Beavor, 5 Ohio, 178; Minor v. Wallace, 10 Ohio, 403; Hutchinson v. Hutchinson, 15 Ohio, 301; Tucker v. Shade, 25 Ohio St., 358.
    
      The death of a resident of Ohio owning real estate therein incumbered with liens, and the appointment of an administrator or executor to settle his estate, is of kindred character to the filing of a creditor’s bill to sell real estate of a judgment debtor where all of the holders of liens thereon are made parties. Judgment creditors who are made parties thereto and whose liens are not dormant at the beginning of the action, are not affected by their liens becoming dormant pending the action. Lawrence v. Belger, 31 Ohio St., 175; Dempsey v. Bush, 18 Ohio St., 376.
    The statute of limitations does not run against the revivor of a judgment until the lapse of twenty-one years after it becomes dormant. See section 5368, Revised Statutes.
    
      W. H. English and Luke G. Byrne, for defendant in error.
    The language employed in section 6165 does not pretend to amend, vacate or modify section 5380 in any particular, and the legislature in its passage certainly had no intention of so doing.
    Repeals by implication not favored. 12 Ohio St., 263; 15 Ohio St., 573; 34 Ohio St., 194.
    Intent to repeal statute must be explicit 46 Ohio St., 178.
    In order for the plaintiffs in error to get a decision in their favor, they must get around the provisions of section 5380. This is imperative. They undertake to do so, by or through section 6165, and we think it clear that there is absolutely no want of harmony between these two sections.
    The theory of the law is, that when a person dies his property passes, for the purpose of paying the debts of the deceased, according to tbeir priorities at his death. Priorities cannot be established, fixed or changed after the death, by anything the creditor may do, but priorities may be lost by the creditor, for failing to do what the law requires to be done by him.
    Messrs. Dowdall and Higgins had their remedy and could have revived the judgment after it became dormant, by a proceeding against the devisees of Mrs. Kent and her executor, had they seen proper so to do, by following section 5369 of the Revised Statutes. Peters v. McWilliams, 36 Ohio St., 155.
    We are not able to discover that counsel in his argument attempts to assign any cause whatever for not taking the course laid down in the Statutes to revive the judgment, and neither does he pretend to cite us to an Ohio case, or any other authority, justifying his claim that section 5380 has its exceptions and that his case comes within them. -(40 O. S., 120.)
    . Under section 5380, the continuance of the lien was limited to five years from the date of the last execution, to-wit: November 1, 1881. Before this period of five years had elapsed Elizabeth J. Kent died (in 1883), but her death, after the period of limitation had partly run, did not interrupt the running of the Statute. Granger v. Granger, 6 Ohio, 35; Irwin v. Garretun, C. S. C. R., 533; Bartlow v. Kennard, 38 Ohio St., 374.
    Our statute contains no provision by which its running is to be interrupted after it was once commenced.
    When the statute of limitations begins to run, it continues to run without interruption from any subsequent disability. 13 Ohio, 181; 20 Ohio, 250; 1 Ohio St., 478; 38 Ohio St., 374; 1 C. S. C., 533.
    When it begins to run against an ancestor it continues to run against the heir, though an infant. 1 Ohio St., 478.
    This statute is no longer viewed with disfavor by the courts. 51 Ohio St., 213.
   Williams, J.

The principal question to which the arguments of counsel have been directed is, whether the lien of the judgment set up by the plaintiffs in error was lost by their failure to have execution issued upon it within five years from the date of the last preceding execution.

On the one hand, it is contended by counsel for the defendant in error, that the judgment below holding the lien was so lost, is in accordance with section 5380 of the Eevised Statutes, which provides that: “If execution on a judgment be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant and shall cease to operate as a lien on the estate of the judgment debtor.”

On the other hand, it is the claim of the counsel for the plaintiffs in error, that under section 6165, the fund arising from the sale made by the executor should be distributed to the liens in the order of their priority as they existed at the time of the testatrix’s death. That section reads as follows: “The money arising from the sale of real estate shall be applied in the following order:

“First. To discharge the costs and expenses of the sale, and the per centum and charges of the executor or administrator thereon, for his administration of the same.
“Second. To the payment-of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as the same operate as a lien on the estate of the deceased, at the time of his death; which shall be apportioned and determined by the court, or reference to a master or otherwise.
“Third. To the discharge of claims and debts, in the order mentioned in this title.”

Though these two sections are found in different divisions of the codification of the statutes, they are so in pari materia that they should be construed with reference to each other, and so that each may receive its appropriate effect. There is some apparent discrepancy between them, but it is not wholly irreconcilable. The former contains the general provision with respect to the dormancy of judgments, and the steps necessary to keep their liens alive; while by the latter, special provision is made in regard to the manner judgment and other liens shall be paid, and the order in which they shall be entitled to share, in the distribution of trust funds in particular cases. And, in accordance with a well-settled rule, the special provision may be regarded as an exception to the more general one, and as controlling in the particular class of cases to which it relates. Doll v. Barr, 58 Ohio St., 113, 120. It becomes of some importance then, to determine the proper scope of section 6165. Some confusion arises from the use of the word “operate” in the second clause; and the courts below transposed the language to read as follows: ‘‘To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, at the time of his death, so far as the same operate as a lien on the estate of the deceased:” * thus using the word “operate,” in the present tense, that is, as of the time of distribution, or. the commencement of the action to sell the land; and holding that a judgment lien not kept on foot until that time by executions issued thereon every five years, is not entitled to payment out of the fund arising from the sale of the land, although the lien was a subsisting one at the time of the judgment debtor’s death. The confusion in the section largely disappears when the letter “d” is added to the word “operate;” and that, we find was the form of the section at the time of the codification, and had been since the administrator’s act of 1831. 3 Chase, 1781, S. & C., 594. The dropping of that letter in the codification may have been accidental; but if not, we cannot presume it was intended to change the meaning and construction of the statute. In that form of the section the transposition of its language alluded to is of no importance. Reading it as so transposed, or without making the transposition, the section requires the payment of the liens out of the proceeds of the sale in the order of their priority as they existed at the time of the decedent’s death; and. that requirement cannot be complied with unless they are treated as subsisting liens on the fund, in that order, when the distribution is made. There is much reason why that should be so. The death of the debtor stops ordinary process, and administration becomes the appropriate proceding for the payment of his debts. And, though there may be cases where judgment creditors who obtained a levy on the land of the debtor before his death have been allowed to proceed thereafter to sale and confirmation, yet that is an extraordinary remedy which may complicate administration and prejudice the rights of the heir or devisee. The personal estate is nevertheless the primary fund for the satisfaction of liens, as well as other debts of the deceased; the title of the personal representative to the assets, whenever appointed, relates back to the time of the death, and in contemplation of law the estate is in process of administration from that time; the real estate, so far as may be necessary to pay any lien upon it, or other debt, becomes assets in his hands, and, the proper and usual method of subjecting it to the payment of the liens is by a proceeding* of the personal representative for that purpose. The law malees ample provision for such proceedings, and enjoins the duty of diligence on the representative, with a view of bringing the estate to a speedy settlement; and the prompt performance of that duty, the lien holder has the right to expect, and may accordingly rely on the security of his lien as it existed at the time of his debtor’s decease.

In this respect, the consequences of the transfer of the debtor’s property by operation of law, upon his decease, are much the same as those resulting when a voluntary assignment of property encumbered by liens is made by a debtor for the benefit of his creditors. In each case the trust attaches at once to the property, its administration is under the control of the court, and similar specific regulations are prescribed by statue for the disposition of the property, the adjustment of the liens, and the payment of the creditors. It was held, in Scott v. Dunn, 26 Ohio St., 63, that in the case of an assignment, “the priority of judment liens is to be determined as the liens existed at the time the assignment took effect.” The question was whether a judgment which was the superior lien on land at the time of its assignment for the benefit of creditors, lost its priority over a junior judgment, also a lien on the land, by the failure to have execution issued upon the former within a year from the date of its rendition. The year had not expired when the assignment took effect, but thereafter expired before the sale of the property by the assignee. The following is the provision of the statute, under which it was held the liens were preserved as they existed when the assignment took effect: “The probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the propceeds thereof, according to priority, provided, that the assignee may, in all cases where real estate to be sold is incumbered with liens, or where any questions in regard to the title require a decree to settle the same, file his petition for the sale of such real estate, in the court of common pleas of the proper county, making all persons in interest parties to .such proceedings; and, upon hearing, such court shall order a sale of the premises, the payment of incumbrances, and determine the questions involved in regard to the title to the same; and the proceeds of the real estate so sold by order of the court of common pleas, after payment of liens and incumbrances, as ordered by such court, shall be reported to the probate court by the assignee, and disposed of as provided in this act.” S. & S., section 9. And the statute then in force relating to the order of liens among judgments, now section 5415, of the Revised Statutes, provides that: “No judgment on which execution is not issued and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of the debtor to the prejudice of any other bona fide judgment creditor.”

It may be observed that the statute which was held to fix the legal status of the liens on the assigned property as of the time of the taking effect of the assignment, does not do so with more certainty than are the liens preserved on the judgment debtor’s land as they existed at the time of his death, by the provisions of section 6165. And section 5115 is not less explicit in its provision that judgments shall cease to operate as liens in the given cases by failure to comply with its requirement, than is section 5380 when its provisions are not met. So that, upon the question here involved, this case seems indistinguishable in principle from that of Scott v. Dunn, supra.

It is also contended the demurrer was properly sustained, because the claim of the plaintiffs in error was not presented to the executor for allowance; and, furthermore, that it was barred, because the pleading was not filed within the time required by section 6113 of the Revised Statutes, after the executor qualified and gave notice of his appointment. Neither position appears to be tenable. The requirement of section 6115, that the executor make distribution to the lien of the plaintiffs in error according to its priority at the time of the testatrix’s death, dispensed with any necessity for its presentation for allowance, if it' were otherwise required. And pleading the lien, in the action brought by ihe executor, in order that it might receive its proper share of the proceeds of the land on which it was charged, is not the commencement of an action against the executor within the purview of the statute which limits the time for bringing actions against executors and administrators.

Judgment reversed and cause remanded.  