McCahan v. Elliott

Chief Justice Mercur

delivered the opinion of the court,

This contention is in regard to the effect of a certain sale of land made by the sheriff. The original validity of the judgment, and of its lien on the land, are unquestioned. The executions thereon were regular and in due form.

The sole objection is, that after the writ of venditioni ex-ponas issued, but before the sale was made, the five years from the rendition of the judgment had expired. In behalf of a good-faith purchaser of the land, who bought before the sale made by the sheriff, this objection would be valid. Another judgment lien obtained within five years before the sheriff’s sale, would be preferred in the distribution of the fund. One so obtained was preferred here. Those questions are not now before us. The only question is,- did the purchaser at that sale take title to the land ?

The learned judge, thinking the five years had expired before the vend. exp. issued, held that the sale passed no title. This error of fact was corrected, and the true date made matter of record after the judgment in this case was entered. Whether lie was correct, had the fact been as assumed, has ceased to be important. Under the facts now unquestioned the judgment is wrong.

The lien of a judgment, so far as concerns purchasers or intervening incumbrancers, expires at the end of five years; yet such is not the case with the defendant in the judgment. As to him the lien is indefinite : Fetterman v. Murphy, 4 Watts 424; Hinds v. Scott, 1 Jones 107; Irvine v. Nixon, Id. 419; Aurand’s Appeal, 10 Casey 151; Brown’s Appeal, 10 Norris 485. Notwithstanding the five years have expired, if the land remain in the hands of the defendant, it may be sold by execution on the judgment, and the title pass as effectually as if it were a chattel: Lewis v. Morgan, 11 S. & R. 236.

No purchaser had intervened between the entry of the judgment and the issuing of the writ on which the sale was made. None afterwards intervened before the sale. The defendant in the judgment remained the owner of the land. As to him the lien continued in full force. The sale was prosecuted with due diligence. As to intervening creditors, this judgment was postponed in the distribution ; but the title to the land passed by the sale.

As this conclusion is fatal to the claim which the defendant makes under a subsequent sale on the same judgment after revival, we do not deem it necessary to consider the question of estoppel. He certainly presents no equities to prevent full effect being given to the law as we have declared it.

Jndgment reversed, and judgment non obstante veredicto in favor of the plaintiffs in error.