Summary
APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.
No. 129 January Term 1890, Sup. Ct.; court below, No. 78 June Term 1888, C. P.
On April 28,1888, Mary Dalfonza brought ejectment against James Newton, to recover a certain house and lot on Swede street, Norristown. The plaintiff having been declared a lunatic by inquisition found on May 23,1888, Thomas F. Shannon, her committee, was then substituted. Issue.
At the trial on June 10, 1889, the plaintiff showed title in Antonio Dalfonza, the husband of Mary Dalfonza, by deed to him from the executors of David Sower, dated October 3,1866 ; will of Antonio Dalfonza, admitted to probate on February 20, 1879, devising all the real estate whereof the testator died seised, including the property in dispute, to his wife Mary Dalfonza. Showing the substituted plaintiff’s appointment, the defendant’s possession, and adducing evidence to sustain a recovery of mesne profits, the plaintiff rested.
The defendant offered in evidence a judgment in favor of J. M. Cowden against Antonio Dalfonza for $360, entered November 25, 1870, on a bond and warrant of attorney dated November 23, 1870, payable on or before April 1, 1871, with interest, being for purchase money, with an assignment of the judgment to the trustees of Wreath of Friendship Assembly No. 13, Ancient Order of Good Ladies, dated November 1, 1871, filed July 16, 1887; also, the will, of Antonio Dalfonza, dated February 6,1879, admitted to probate February 20,1879, appointing Marjr Dalfonza, his wife, sole executrix, and the letters testamentary issued thereon; also the record of a scire facias upon said judgment in favor of the said assignees against said executrix, issued July 16, 1887, the sheriff's return of service thereof, judgment in default of appearance, and sum due liquidated at $370.53.
To these offers the plaintiff objected, in substance, that the judgment was entered in 1870, and the scire facias was not issued until 1887; that, since the passage of the act of June 1, 1887, P. L. 289, the plaintiff was entitled to notice of the assignment dated November 1, 1871; that said scire facias was issued against a party who had been found to be a lunatic at the time; that no agreement in writing for the revival of said judgment had been signed by the terre-tenant, as required by the said act of 1887; that said scire facias had been issued and served upon Mary Dalfonza, as executrix, and not as devisee.
By the court: Objections overruled, offers admitted ; exceptions.1 2
Defendant then offered the records of the execution process upon the revived judgment mentioned in the foregoing offers, the return thereto, with the inquisition upon which the real estate was condemned, the approval thereof, the writ of venditioni exponas following, the sheriff’s sale of the property in dispute, and sheriff’s deed dated and acknowledged March 24, 1888.
Objected to for the reasons given as to the foregoing offers.
By the court: Objections overruled, offers admitted; exceptions.3
The defendant then rested.
In rebuttal, the plaintiff offered in evidence the record of the proceedings in lunacy, for the purpose of showing that at the time the scire facias upon the judgment was issued, and as found by the inquisition, for three nr four years prior to May 28,1888, Mary Dalfonza, the defendant in the scire facias upon the judgment, was a lunatic, without lucid intervals, and not capable of attending to her affairs. Objected to.
By the court: Objection sustained, offer refused; exception.4
The plaintiff then offered in evidence the deed of J. M. Cow-den to Mary Dalfonza, for premises on Lafayette street, in Norristown, for the purpose of showing, as a fact for the jury to determine, that the judgment obligation given on November 25, 1870, was a judgment for the purchase money of that property, “ and was therefore not upon the property upon Swede street which is described in this writ.” Objected to.
By the court: Objection sustained, offer refused; exception.5
The plaintiff then closed, whereupon the court, Weand, J., instructed the jury to find for the defendant.6
The jury returned a verdict for the defendant, as directed.
A rule for a new trial having been taken and argued, the court, Weand, J., filed an opinion, which after stating the facts proceeded:
The plaintiff’s contention is, that no valid title passed to the defendant under the sheriff’s sale, because the judgment on the revival was void by reason of lapse of time, and because it was found against an insane executrix; also, because there was no authority to enter judgment by default for want of an appearance, against her as executrix, and that there was no judgment against her as terre-tenant.
It has repeatedly been held that the lien of a judgment against a decedent is without limitation against heirs and devisees : Fetterman v. Murphy, 4 W. 424; MeCahan v. Elliott, 103 Pa. 634; Aurand’s App., 34 Pa. 151. A judgment of record at the defendant’s death, although not then a lien on his land, is not a debt whose lien is limited to five years from the decedent’s death, unless suit be brought according to § 24, act of February 24, 1834, P. L. 77: Baxter v. Allen, 77 Pa. 468. An heir or devisee is but a volunteer and takes only the surplusage of his ancestor’s estate. He is not a terre-tenant: Horner v. Hasbrouck, 41 Pa. 169.
■ If, then, the judgment was a lien at decedent’s death, was the revival proper? The writ, it is true, only issued against the executrix, but, as she was also sole devisee, she was bound by the judgment obtained on the scire facias, if in other respects valid: Stewart v. Montgomery, 23 Pa. 410. The authorities show that the proper practice on a judgment obtained against a defendant in his lifetime, is to issue the scire facias against his representatives, and that it is unnecessary to bring in the widow, heirs or devisees under § 34, act February 24, 1834, P. L. 80, and, after a revival, to issue the execution upon the original judgment, and not upon the judgment on the scire facias; yet, when the issuance is upon the latter, it is upon an irregularity which cannot affect the title of a purchaser at sheriff’s sale: Grover v. Boon, 124 Pa. 399. From these decisions it follows that the judgment, revival and sale were all legal, proper and orderly, and vested a good title in the purchaser unless there are other matters to affect him in his purchase.
Plaintiff contends that under the act of June 1, 1887, P. L. 289, this judgment was not properly revived. The act, however, speaks of defendants and terre-tenants, and in nowise affects this case, for as we have already shown Mrs. Dalfonza was not a terre-tenant, and therefore not within the provisions of the act.
It is also claimed that the finding of the commission that Mrs. Dalfonza was a lunatic, renders the judgment of revival void. But how can this affect the title of an innocent purchaser ? At the time of the sheriff’s sale, February 23, 1888, and of the confirmation and acknowledgment of the sheriff’s deed, March 24, 1888, there was nothing upon record to give him notice of any irregularity or defect in the proceedings, for the petition in lunacy was only filed May 8,1888. The record, therefore, showed a good and valid judgment upon which to issue an execution, and the purchaser is therefore protected under the act of 1705, 1 Sm. L. 61. This protection is absolute against every defect or irregularity which would avoid the judgment, process or sale, or reverse it, except where the judgment is absolutely void on its face: Duff v. Wynkoop, 74 Pa. 305 ; Feger v. Keefer, 6 W. 297; Hays v. Shannon, 5 W. 548.
We see no error in our record and must therefore sustain the judgment. And now, September 16, 1889, the motion in arrest of judgment and the reasons for a new trial are overruled.
Judgment having been entered on the verdict, the plaintiff took this appeal, assigning for error:
1-3. The admission of the defendant’s offers.1 to 3
4, 5. The refusal of the plaintiff’s offers.4 5
6. The instruction to find for the defendant.6
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
