
    Supreme Court of Pennsylvania.
    SHEARER v. BRINLEY.
    Where a property has been levied on, and an inquisition and condemnation re-lumed, the lien of judgment is good against lands of a decedent still in possession of the heirs, although there has been no revival within five years of testator’s death.
    Error to the Court of Common Pleas of Franklin County.
   Opinion delivered July 2, 1874, by

Sharswood, J.

By the thirty-fourth section of the Act of February 34, 1:834, Pamph. L. 80, it was enacted that “in all actions against the executors or administrators of a decedent, who shall have left real estate where the plaintiff intends to charge such real estate with the payment of his debt,” the widow and heirs, or devisee's, shall be made parties thereto. As well upon the words as the evident intent of the statute, where at the death of the decendent the land was already charged with the debt, the provision has no application. Such have been the decisions. Thus a scire Facias on a mortgage is not within the Act; Hare v. Mallock, 1 Miles, 263 Chambers v. Carson; 2 Whart, 2651 Wallace v. Blair, 1 Grant, 75; nor a scire facias to revive a judgment recovered before the death of the decedent; McMillan v. Rex, 4 W. & S. 237 ; Riland v. Eckert, 11 Barr, 215; Bennett v. Fulmer, 13 Wright, 155. It is equally clear that where the land was charged with the debt before the time when the act of 1834 went into operation, namely, October 1, 1834, it was not necessary to make the widow and heirs, or devisees, parties before proceeding to execution. Were then the premises charged with the debt of Samuel Moore to Thomas A. Crawford before the first day of October, 1834? It is true that the judgment recovered against his executors to April, 1827, in the Court of Common Pleas of Franklin county, had not that effect. It was no lien. Under it, however, as the law then stood, the real estate of the decedent might have been seized in execution, condemned and sold. If the case had rested on that judgment alone, no execution could have been issued upon it to reach the land, after the act of 1834, without a scire fa-cias to bring in the widow and devisees. This is the extent of Keenan v. Gibson, 9 Barr, 249; Warden v. Eichbaum, 2 Harris, 121; Kessler’s Appeal, 8 Casey, 390 ; McLaughlin v. McCumber, 12 Ibid. 14. What distinguishes the case-before us from all these determinations is, that before October x, 1854, there was an execution, a levy on the premises and an inquisition and condemnation returned. This undoubtedly created a lien on the land so levied on; it was in the custody of the law to answer that debt, and consequently, was already charged with it; Stauffer v. The Commissions, 1 Watts, 300; Packer’s Appeal, 6 Barr, 277; Lea v. Hopkins, 7 Ibid. 492; Hinds v. Scott, 1 Jones, 29; Riland v. Eckert, 11 Harr. 215. No one can doubt that a venditioni exponas, founded on that levy and condemnation, followed by a sheriff's sale and deed, duly acknowledged, would have divested “the title of Samuel Moore on the premises. Without any resort to the seventh section of the act of 1834, which excepts from the repealing clause all such acts as may be necessary to finish proceedings commenced before that time, the thirty-fourth section had no application to this proceeding. It may be worth while, however, to observe that the exception has been held not to apply in favor of an action commenced or judgment obtained against the personal representatives of the decedent before the Act, because having no necessary reference to the real estate, no proceeding with such reference can be said to have commenced until execution and levy. But where there was such an execution and levy, there is such a proceeding commenced, which the act allows to be finished without reference to its provisions. We think, therefore, there was error committed by the learned Court below in affirming the plaintiff’s fourth point, that the sale of the land in 1838, on the writ of venditioni expolias, was invalid, unless a writ of scire facias was previously to said sale issued against and served on the widow, heirs at law and devisees of Samuel Moore, deceased.

It is contended, however, that this error, cannot avail the plaintiffs here, because it appears on the face of the record that the lien of the debt of Crawford, as against the heirs and devisees of Moore, had expired on the date of the sheriff’s sale in 1838. Samuel Moore died in 1825. The period of limitation of the lien of his debts was then seven 5.ears by the Act of April 4, 1797. Sec. 4, 3 Smith, 297 : “after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executors or administrators, within the said period of seven years. ’ ’ It has been settled that the effect of an action within seven years, duly prosecuted to judgment, was to extend the lien by analogy to the Act of 4th of April, 1798, Sect. 2, 3 Smith, 331, five years longer, that is, for twelve years from the decease of the debtor: Trevor v. Ellenberger, 2 Penna. Rep. 94; Penn v. Hamilton, 2 Watts, 53; Fetterman v. Murphy, 4 Ibid. 429; Steel v. Henry, 9 Ibid. 523; McLaughlin v. McCumber, 12 Casey, 14. As these decisions have been subsequently explained, this court adopted the analogous provisions of the Act of 1798 to determine what was an action duly prosecuted within the Act of 1797: Steel v. Henry, 9 Watts, 528; Payne v. Craft, 7 W. & S. 465. More than twelve years from the death of Sa*iuel Moore had elapsed when the title of his devisees was attempted to be divested by the sheriff’s sale. . Without any question, the general lien of the debt, as against them, was then gone. But the point now' to be determined is, whether the levy or condemnation at a time when the lien of the debt was in full force, and when such seizure and levy was perfectly lawful and regular, was a sufficient due prosecution 'of the action without a revival of the judgment ? Nothing is better settled than that under the Act of 1798 it was sufficient, and that no revival of the judgment within five years was necessary: Young v. Taylor, 2 Binn. 258; Commonwealth v. McKisson, 13 S. & R. 144. The mischief of such a particular secret lien, when the general lien of the judgment had expired; occasioned the passage of the Act of March 26, 1827, Sec. 2, 9 Smith, 303: Ebright v. The Bank, 1 Watts, 397. Shall the analogy of the Act of 1798 be still further carried out by applying to the Act of 1797 the provision of this supplement of 1827? This was one of the questions which arose in Steel v. Henry. Mr. Justice Kennedy remarked : “The Acts of 1827 and 1829, relative to the liens of judgment, 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. ’ ’ Steel v. Henry went off upon another point. The question, however, did arise, and was the very ratio decidendi in Payne v. Craft, 7 W. & S. 463. “It had been argued,” that Mr. Justice Kennedy, “that the directions of the acts of 1798, 1827 and 1828, for continuing the liens of judgments therein mentioned, ought to have been observed and strictly complied with by Mr. Ross, in order to continue the lien of his debt after he had obtained judgment for it. In answer to this, however, it is sufficient to observe that these Acts of Assembly do not embrace judgments originally obtained against the executors or administrators of a deceased debtor, but extend merely to judgments obtained against the debtor himself in his lifetime, whereby liens are created on his real estate for the-sums recovered.” He goes on to say : “The farthest that this Court has gone was to adopt, upon a principal of analogy, the five years mentioned in these acts, and to hold, that nowhere proceeding had been had or act done on a judgment obtained against the personal representatives of a deceased debtor, negativing the idea of its being paid, within five years after the seven years from the debtor’s death had expired and the judgment had been obtained, the lien of the debt on the real estate, late of the said I debtor, should be considered as extinct and gone.” It is true that the late Mr. Chief Justice Thompson, for whose obiter dicta even, no man can have a greater respect than I have, in McLaughlin v. McCumber, léxpressed the opinion that the Act of 1834 had changed the law as laid (down in Steel v. Henry and Payne v. Craft; and he refers to the twenty-I fifth section as forbidding by express provision an implication that the lien might be continued by execution on the first judgment, by the express declaration that the lien shall not be continued against the real estate of the decedent unless revived by the scire facias every five years. But the twenty-fifth section is confined to judgments which at the time of the death of the decedent shall be a lien on his real estate; and even as to them the provision to which he refers is, “Such judgments shall! not continue a lien on the real estate of such decedent as against a bona fide purchaser, mortgagee or other judgment creditor of such decedent unless revived by scire facias or otherwise, according to the laws regulating the revival of judgments. ” It is accordingly well established that the lien of a judgment against a decedent at the time of his death, as against his heirs or devisees, is without limit and needs hot to be revived every five years, in order to be executed at any time, on lands still held by them: Fetterman v. Murphy, 4 Watts, 424; Bropst v. Bright, S. Ibid. 124; Wells v. Baird, 3 Barr, 351; Konigmaker v. Brown, 2 Harris, 269; Aurand’s Appeal, 10 Casey, 151; Bindley’s Appeal, 19 P. F. Smith, 295. The decision in McLaughlin v. McCumber, that on a judgment against the personal representatives of a decedent, obtained prior to October 1, 1834, a testatum fi. fa. could not be issued and executed on land without calling in the heirs or devisees, was undoubtedly right. In that case there was no lien, particular or general, at the time when the Act of 1834. went into operation. On the whole, then we have arrived at the conclusion that though the general lien of the debt of Thomas H. Crawford against the other lands was gone at the time of the sheriff’s sale, yet the particular lien, acquired by the levy and condemnation on these premises, still subsisted, unaffected by the lapse of time; and the sale by the sheriff, under the venditioni exfionas issued upon it, divested the title of the devisees of Samuel Moore, and vested a good title in the purchaser.

Judgment reversed.  