McCahan v. Elliott

1; A judgment after five years loses its lien on real estate only as against other lien creditors or purchasers; as respects the defendant against whom the judgment was personally obtained, its lien continues after the expiration of five years as before. 3. Where the term of five years from the entry of a judgment expired after the issuing of a venditioni exponas thereon, but before the date of the sheriff’s sale under the vend. ex.: Held, that said sheriff's sale passed the defendant’s title to the purchaser; the only effect of the expiration of said term of five years being to let in a subsequent judgment creditor to priority in the distribution of the proceeds of the sheriff’s sale. 3. Where, under such circumstances, said judgment was subsequently revived, and the premises were again sold at sheriff’s sale under an execution issued on the revived judgment: Held, that the purchaser at the second sale was not entitled to recover, in ejectment, from the purchaser at the first sale.

' Error to the Court of Common Pleas of Juniata county: Of July Term 1882, No. 192. Ejectment, by Stewart Elliott, against J. Shepperd McCahan and William B. McCahan, for a tract of land, situate in said county, containing one hundred acres. The defendants appeared and filed an abstract of title. On the trial, before Barnett, P. J., there was no dispute as to the material faets, which were as follows: Both parties claim under J. S. McCahan, who, on January 21st 1875, was the owner in fee simple of the land in dispute. On that day James Heffner obtained a judgment against said J. S. McCahan, for $284.35. lie issued a fi. fa. to April Term 1876, under which the land in question was levied on, and upon inquisition the rental value was fixed at $80 per annum, the property extended and retained by the defendant at said rental. On July 23d 1877, James Heffner assigned said’judgment to Alexander King and D. Stewart Elliott. Orí April 11th 1876, W. B. McCahan, Committee, «fee., recovered judgment against said J. S. McCahan for $800. Upon affidavit of default in payment of rental, under tire extent of the Heffner judgment, a venditioni exponas was issued thereon January 6th 1880, to No. 9, February Term 1880, under which the tract in controversy was sold at sheriff’s sale on January 30th 1880, as the property of J. S. McCahan, to W. B. McCahan for $250. In the meantime, between the date of issuing said vend, exp. and the date of the sheriff’s sale thereunder, to wit, on January 21st 1880, the term of five years from the date of the entry of the Heffner judgment expired. The sheriff therefore made return to said vend, ex., that W. B. McCahan, the purchaser, being a lien creditor entitled to priority in distribution, ho had exchanged receipts with him for the purchase money, less costs. A deed poll was acknowledged by the sheriff to W. B. McCahan for the tract, March 17th 1880, and he took possession. On February 5th 1880, an amicable sci. fa. to revive and continue the lien of the Heffner judgment, with confession of judgment thereon by J. S. McCahan, defendant, was filed. A fi. fa. was issued on this judgment of revival to September Term 1880, under which the tract in controversy was levied upon as the property of J. S. McCahan, and condemned. A vend. ex. was issued to December Term 1880, the property was sold at sheriff’s sale December 3d 1880, to D. Stewart Elliott, and a sheriff’s deed acknowledged to him therefor December 8th 1880. D. Stewart Elliott thereupon brought this action of ejectment. The court, under the foregoing undisputed facts, directed the jury to find for the plaintiffs, subject to the question of law reserved, whether under said facts, the plaintiff was entitled to recover. Verdict accordingly. Subsequently the court, in an opinion filed by Barnett, P. J., directed judgment to be entered for plaintiff on the verdict. In this opinion the court stated, as a fact, that the Heffner judgment was obtained January 1st 1875, and expired five years thereafter, to wit, January 1st 1880, prior to the issue of the venditioni exponas, oh January 6th 1880, by reason whereof “there was lien neither of judgment nor execution,” and the sheriff’s sale, made by virtue of said vend, ex., under which the defendant W. B. McCahan- claimed, was without authority of law and void. The court therefore held that the defendant took no title thereunder, and that the plaintiff was entitled to recover upon his title under the execution and sheriff’s sale made after the revival of the judgment, as above stated. The defendants thereupon took this writ of error, assigning for error, inter alia, that the court erred in holding that the sheriff’s sale made to W. B. McCahan was void ; and in entering judgment for the plaintiff on the verdict. Subsequently to the issuing of the writ of error, Barnett, P. J., filed the following note to the opinion and judgment, which was brought up with the record: “ Mote. Through failure to hear and understand correctly the date of the lien of the judgment at the time my notes of evidence were taken, I have stated the date as the first day of January. And now,. 23rd April, 1883,1 find that date is erroneously stated, and that the true date of said lien is the 21st January, 1875. Chas. A. Barnett, President Judge.”