Wilson's Appeal , 1879 Pa. LEXIS 263 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

At common law a writ of fieri facias bound the personal property of the defendant from the teste of th^writ. The Act of 16th June 1836, Pamph. L. 768, provides that “no writ of fieri facias, or other writ of execution, shall bind the property or the goods of the person against whom such writ of execution is sued forth, but. from the time- such writ shall be delivered to the sheriff, under-sheriff, or coroner to be executed.” The 40th section of said act requires the sheriff to endorse on a fi. fa. the day of the month, the year and the hour of the day when any such writ shall come into his hands. It has been repeatedly held that the writ is a lien from the time it is lodged with the sheriff: Mifflin v. Will, 2 Yeates 177; Duncan v. McCumber, 10 Watts 212; Schuylkill County’s Appeal, 6 Casey 358; Wilson’s Appeal, 1 Harris 426; Shafer v. Gilmore, 3 W. & S. 438. All these cases, however, .and many others that might be cited, refer to personal property. It has never yet been held that the lien of a fieri facias attaches to real estate without a levy. It was settled in Colhoun v. Snider, 6 Binn. 135, that after-acquired lands were not bound by a judgment previously entered. But an execution issued upon such judgment, and levied upon such subsequently-acquired lands, is a lien thereon: Packer’s Appeal, 6 Barr 277. It is true the question of lien by the mere delivery of the writ to the sheriff was not raised in Packer’s Appeal, nor am I aware of its having been raised in any .other case. The reason for it probably is the general acquiescence of the profession in the belief that a fi. fa. was not a lien upon real estate without a levy. We find dicta scattered through our books tending to show that such has been the impression, at least, of the judicial mind. Thus, in Betz’s Appeal, 1 P. & W. 278, it was said by Justice Smith that “ the fieri facias itself is no lien upon the land until it is seized in execution by virtue of the writ;” and by Justice Rogers, in Boal’s Appeal, 2 Rawle, at page 39: “ It is the opinion of the majority of the court, that as the writ of restitution is strictly an execution, it comes within 'the same rules as other executions; and that the lien commences on the goods from the time the writ goes into the hands of the sheriff, and on the lands from the time of the levy.”

It was held by the learned judge of the court below that inasmuch as lands are chattels 'for the payment of debts by our law, the lien of the fi. fa. attached without a levy. It is true that in Pennsylvania lands are liable for the debts of the owner, but they are so sub modo only, they are not primarily liable. It is the duty of the sheriff to levy first upon the personal property, but “ if sufficient personal estate cannot be found by such officer, he shall proceed to levy upon the defendant’s real estate.” See Act of 16th of June 1836, sect. 43, Pamph. L. 769. The plain object of the provision in the Act of 1836, first above cited, was to prevent the lien of the fi. fa. relating back to the teste of the writ. Had it been intended to make such writ a lien upon real estate from the time it came into the hands of the sheriff, such intention would have been doubtless clearly expressed in the’act. It is expressly provided by the Act of 1836 that a testatum'fi. fa. shall be a lien upon the real estate of the defendant, in the county to which it shall be sent, for the period of five years, and it is required to be docketed and go upon the judgment-index. As indicative of the legislative mind, it is not out of place to refer to the 9th section of the Act of 20th April 1853, Pamph. L. 611, relating to executions levied on after-acquired real estate in Philadelphia, which provides that all such executions may, on application of the execution-creditor, be certified by the officer making such levy, to the officer of the court from ■which such execution issued, when it shall be docketed on the judgment-index, and thenceforth bind such real estate for five years like any other judgment, and unless such levy be so certified and indexed it shall be no lien on such real estate. The Act of 22d April 1856, Pamph. L. 532, is general and provides in the third section that “the lien of no judgment, recognisance, execution levied on real estate in the same or another county, or of writs of scire facias to revive or have execution of judgments, shall commence or be. continued, as against any purchaser or mortgagee, unless the same be. indexed in the county where the real estate is situated, in a book to be called the judgment-index; and it shall be the duty of the prothonotary or clerk forthwith to index the same, according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty.” It will thus be seen that an execution levied upon real estate of a defendant is not a lien as against a purchaser or mortgagee unless regularly entered upon the judgment-index. We regard it as equally clear that without a levy a writ of fieri facias creates no lien upon real estate independent of the lien of the judgment which it executes.

The real estate, the sale of which produced the fund in court, belonged to Joseph Adams, who inherited it from his father. The descent was cast on the 29th day of September 1877, at about eleven o’clock, &. M. The appellant’s judgment against Joseph Adams was entered between the hours of eight and ten, p. M., of the .same day. John Cleck, the appellee, obtained a judgment against said Adams on the 2Íst of February 1874, and on the said 29th of September 1877, and after the entry of the appellant’s judgment, issued a fieri facias which reached the sheriff at eleven o’clock, p. M. As, however, there was no levy under this fi. fa. until some days afterwards, it is manifest, in view of the principles above stated, said execution was not entitled to come in upon the fund as against the judgment of the appellant.

The decree is reversed, at the costs of the appellees, and it is now ordered and decreed that the fund in court be applied first, to the payment of the judgment of the appellant, H. L. Wilson, executor of Joseph Adams, No. 45, December Term 1877, and that the balance, if any, thereafter remaining of said fund, be applied to the execution of the appellee, Cleck v. Adams, vend. ex., No. 8, February Term 1878.