Sherrard's Executors v. Johnston , 193 Pa. 166 ( 1899 )

Opinion by

Mb. Justice Mitchell,

The levy oh the Banning judgment to the use of appellant was made on November 24, while that'on appellee’s judgment was not until the next day. Neither judgment being a lien on the land, which was after-acquired, the first levy had the first grasp on the fund: Packer’s Appeal, 6 Pa. 277. But the appellant’s judgment being more than five years old, the learned auditor held that it would not support an execution, and he therefore distributed the fund first to the appellee. In so doing, however, he overlooked the point that the objection was not made by the debtor defendant, and was not available to any one else.

The execution on the Banning judgment was not void, but merely irregular. As between the parties a judgment unpaid remains in force notwithstanding the expiration of its lien. There is no affirmative presumption of payment until after the lapse of twenty years, though after a certain length of time, fixed by the Act of April 16, 1845, P. L. 538, at five years, the law assumes that the defendant may have a valid reason against an execution, and therefore requires that he shall have an opportunity to show it before his land is seized. This provision, however, is for the benefit of the debtor, and if he refuses or neglects to take advantage of it, no one else can. The object of the scire facias to revive et quare executionem non, etc., is to give the debtor notice that he may be exposed to an execution unless hie shows cause against it. It requires a valid defense, and if he has none or refuses or neglects to present it, a new judgment will be entered on which execution may at once be issued. No other creditor has any standing to interject a defense for him in the scire facias, and no reason exists for allowing such interference if the plaintiff should assume that there is no defense and issue execution without the preliminary scire facias at all.

These principles were stated by Kennedy, J., in Righter v. Rittenhouse, 3 Rawle, 273, as follows: “At common law after a year and a day had elapsed from the date of the judgment in personal actions, without execution being issued thereon by the plaintiff, a presumption arose that the defendant might be able to show that it was paid or discharged ; and after that, without affording him an opportunity to do so, the plaintiff could not take out execution upon his judgment. To enforce the payment of it, he was compelled to bring an action of debt upon it, and to prosecute the same until he obtained a new judgment, upon which he might sue out execution. To avoid the delay that attended this course of proceeding, the statute of Westminster 2d gave a scire facias upon the judgment in such actions after a year and a day, requiring the defendant to show cause, if any he had, why the plaintiff should not have execution of his judgment. An execution sued out after the year and a day was never considered void, but voidable merely.”

It is firmly settled that even a judgment which is fraudulent as to the debtor cannot be set aside by creditors unless there is collusion or fraud as to them: Thompson’s Appeal, 57 Pa. 175; Zug v. Searight, 150 Pa. 506. And a fortiori must the same rule be applied where the judgment or the proceeding upon it is not fraudulent or void, but merely irregular. In Drexel’s Appeal, 6 Pa. 272, judgment against the Towanda Bank was entered by confession on a warrant signed by the president only, in his own name. It was held that the other creditors of the bank had no standing to impeach the judgment, this Court saying: “ It might have been reversed on a writ of error, or set aside in the court below on motion, but only at the instance of the defendant, never at the instance of a stranger. As long as the party injured by the irregularity submits to it, no one else can complain; for a third party has a right to interfere with a judgment only when it is collusive.” See also McLaughlin v. McLaughlin, 85 Pa. 317, where a number of analogous cases are cited in the opinion on page 323.

The cases relied upon by the learned auditor do not touch this point. In Miller v. Miller, 147 Pa. 545, and Bannan v. Rathbone, 3 Grant, 259, the Court acted on the motion of defendant. In Lyon v. Cleveland, 170 Pa. 611, the .question arose on a motion by a terre-tenant, acquiring title to the land while subject to the lien of plaintiff’s judgment, to strike off a levy on a revived judgment, to which the terre-tenant was not party. What was decided was that until the purchaser put his title on record, took possession, or in other way gave actual or constructive notice to the plaintiff, a revival against the original debtor would bind the land. The remarks of our late Brother Williams by way of argument and illustration must be read with reference to the state of facts in the case before him. It was not intended to say that the lien of a judgment and the right to issue execution were identical, or that the existence of the former depended on the latter. Under the act of April 4, 1798, 3 Smith’s Laws, 331, the lien of a judgment continued for five years, though no execution could be issued on it after a year and a day without preliminary scire facias, until the period was extended to five years by the act of 1845.

It is argued by appellees that appellant-has not sufficiently proved the assignment of the Banning judgment to her. But the recovery is in the right of the legal plaintiff. No third party has any standing to question' the status of the plaintiff to use.

Judgment reversed and fund directed to be applied first to the judgment of Catherine Banning. Costs to be paid by appellees.