Appeal of Leibert , 119 Pa. 517 ( 1888 )

Opinion,

Mr. Justice Green:

The only question in this case is whether the lien of the recognizance in the Orphans’ Court, in the partition proceedings, was merged in the judgment obtained in the Common Pleas in an action upon one of the bonds secured by the recognizance. The bond was given for the payment of $3,953.33 to one of the heirs. The recognizance was in the sum of $24,000, and was given to secure the payment of the whole of the valuation money to all the parties interested therein. It is a continuing lien which requires no revival and remains until it is paid, subject of course to the presumption of payment after twenty years. In Ankeny v. Penrosé, 18 Pa. 193, we said: “ The lien of a judgment is limited by statute, but that of a recognizance is not, it is indefinite.....It is subject to the legal presumption of payment and that presumption is liable to be repelled by reliable, credible testimony.”

It is manifest, therefore, that a judgment obtained upon one of the bonds is not a higher but a less security in grade than is the recognizance. But in the present case the bond was for only a small part of the entire sum for which the recognizance was given, and other parties were interested in the remainder. The recognizance is a unit and cannot, as to its lien, be split into pieces, so as to be a good lien for some and none at all for others. In the case of a mortgage given to secure the payment of several bonds, it will not be pretended that a judgment obtained upon one of the bonds extinguishes by merger any part of the hen of the mortgage. We are aware of no principle upon which the contention of the appellants can be sustained. Hillbish’s Appeal, 89 Pa. 494, has no application. No recognizance or bond could be found in that case, and the record did not show that any had ever been given. The heirs had only a judgment, confessed many years afterward, as their security, but before that judgment was entered HiUbish had obtained a judgment and was held entitled to preference as against the heirs, though not as against the widow. The distinction taken was, that the widow’s interest is secured by statute while that of the heirs depends upon the securities which are given.

The decree of the court below is affirmed, and the appeal dismissed at the cost of the appellants.