Uhler v. Moses

Opinion by

Beaver, J.,

Alda P. Cunningham, who was not named as defendant in any effectual preliminary proceeding in the court below and against whom no judgment was entered, presented her petition to set aside a fi. fa., in pursuance of which the sheriff levied upon real estate belonging to her and as to which ■ she was described in the fi. fa. alone as terre-tenant. Upon what judgment was this fi. fa. issued ? If upon judgment No. 58, January term, 1898, which was entered in a scire facias to revive a judgment against Moses and Cunningham, entered originally October 5, 1892, the petitioner was not only not a party thereto but it had been expressly decided by the court of common pleas, from whose decree no appeal had been taken, that in an alias sci. fa. no judgment could be entered against her. Upon what ground, therefore, or by what right the sheriff levied upon her real estate does not appear. If it be said that the plaintiff had a lien upon her real estate, by virtue of the 8th section of the Act of April 16,1849, P. L. 663, and that the fi. fa. was issued upon the original judgment because thereof, it can be answered that, whilst it is true that that act gave the plaintiff a lien upon real estate bound by the original judgment for five years from the time that the petitioner placed her deéd upon record, it did not give the plaintiff the right to issue an execution upon a judgment -which had not been revived for five years. The plaintiff seems to have recognized this difficulty and, if we understand the record, properly issued his writ of fieri facias upon the revived judgment. It is difficult to see how this writ could have been sustained in either event.

The Act of June 1, 1887, P. L. 289, was intended to remedy evils which were clearly recognized, and not only re-enacted in express terms the 1st section of the Act of March 26, 1827, P. L. 129, but added: “ And no proceeding shall be available to continue the lien of said judgment against a terre-tenant, whose deed for the land bound by said judgment has been recorded, except by agreement in writing signed by said terretenant and entered on the proper lien docket, or the terre-tenant or terre-tenants be named as such in the original scire facias.” This addition to the act of 1827 is so repugnant to the provisions of the. act of 1849, supra, that they cannot be construed consistently with each other, so as to give effect to both. We are, therefore, satisfied that the act of 1887 repealed in effect the act of April 16, 1849, supra. The grounds upon which this decision must rest are so fully and clearly stated by the president judge of the court below that it is not necessary to repeat either the reasoning or the authorities here. The petitioner was not mentioned in the original scire facias and although the attempt was made later to bring her in as terre-tenant upon an alias writ of scire facias, this was very properly rendered ineffectual by the refusal of the court below to enter judgment against her therein, because of the failure of the plaintiff to issue his alias sci. fa. to bring in the terre-tenant within five years from the date of the entry of the original judgment: Suter v. Findley, 5 Pa. Superior Ct. 163.

Agreeing, as we do, with the view, of the court below that the act of June 1,1887, supra, practically repealed the act of April 16, 1849, supra, we hold “ that the lien of plaintiff’s judgment, which was originally entered October 6,1892, expired October 7, 1897, and, therefore, the land of the terre-tenant originally bound by the judgment was not subject to its lien on April 3,1898.” The decree making absolute the rule to show cause why the execution should not be stayed was, therefore, properly entered.

Decree affirmed and appeal dismissed.