The facts and the history of the pertinent legislation and decisions are amply set forth in the opinion of the President Judge. But I am unable to agree with the construction of the Act of 1849 adopted by the majority. I think that construction disregards the phrase, "when a judgment has been or shall be regularly revived between the original parties," and that the decisions relied upon do not compel the conclusion reached.
Under the Act of 1827, a revival of the judgment against the original debtor alone within the five-year period availed nothing as against the terre-tenant even though the deed to the terre-tenant was unrecorded. Armstrong's Appeal, 5 W. S. 352 (1843). This furnished an opportunity to a conniving debtor to defeat the lien of the judgment irrespective of how diligent the creditor might be.
The intention of the Act of 1849 was to put an end to "that juggling with the title by the judgment debtor and terre-tenant which had grown up under the act of 1827." Uhler v. Moses,200 Pa. 498, 502-503, 50 A. 231. In the interest of open, fair dealing, the Act was intended to afford protection to creditor, debtor and purchaser without imposing hardships on any one of them. Wetmore v. Wetmore, 155 Pa. 507, 26 A. 694. That act provides: "In all cases when a judgment has been or shall beregularly revived between the original parties, the period of five years, during which the lien of the judgment continues, shall only commence to run in favor of the terre-tenant from the time that he or she has placed their deed on record . . . . . ." (italics supplied) or the date when the terre-tenant went into possession.
The majority of the court construes this Act to mean that the lien of the judgment is automatically revived for a further period of five years by recording the deed of the debtor to the terre-tenant. This construction obviously goes much further than giving to the diligent *Page 408 creditor relief from the hardship which ensued from the Act of 1827. It gives the Act the effect of creating a new and additional method of reviving a judgment between the original parties. I think "regularly revived" means regularly revived in accordance with then existing law.
In Farmers National Bank Trust Co. of Reading, to use, v.Barrett et al., 321 Pa. 273, 184 A. 128, the judgment was entered April 18, 1928, and was revived by sci. fa. against the original debtor on April 6, 1933. In Uhler v. Moses, supra, the judgment was entered October 6, 1892, and a writ of sci. fa. to revive was issued1 against the original debtor on October 6, 1897. In FirstNational Bank Trust Company v. Miller, 322 Pa. 473, 186 A. 87, the judgment was entered May 19, 1927, and a writ of sci. fa. to revive was issued against the original debtor on May 12, 1932. InEverett Hardwood Lumber Company v. Calhoun, 121 Pa. Super. 451,183 A. 659, the judgment was entered April 18, 1927 and revived by amicable agreement against the original debtor, April 18, 1932. In First National Bank of Ashley v. Tomichek et al., 140 Pa. Superior Court 101, 13 A.2d 126, the judgment was entered on December 8, 1928, and revived by sci. fa. against the original debtors on November 28, 1933.
Thus in all of the cases mentioned in the above paragraph the judgment was regularly revived between the original parties by sci. fa. or by amicable agreement within the five-year period. The language used in these cases and quoted in the majority opinion, therefore, when viewed in the light of the factual situation involved, does not support the majority's interpretation. *Page 409 Kefover et al. v. Hustead et al., 294 Pa. 474, 144 A. 430, requires special attention. In that case, the judgment was entered September 15, 1915, and the sci. fa. to revive against the executors of Hustead and the grantees of the land was not issued until December 26, 1920, a little over three months more than five years after the judgment, but within five years of the recording of terre-tenant's deeds. But in my view, the decision of the Supreme Court was placed squarely upon the ground that, although not revived by sci. fa. or by amicable agreement within the five-year period, the judgment was revived against the original debtor (Hustead's executors) by his death within theperiod. Although President Judge KELLER very convincingly argues that the Fiduciaries Act of 1917 has no application to a case in which a deed by a decedent had been recorded in his lifetime, it seems to me, from reading Mr. Justice SADLER'S opinion, the Supreme Court took a different view; that its decision was based squarely on the ground that Hustead's death had "regularly revived" the judgment against his estate; and that if it had not been for his death, the decision would have gone the other way. The opinion separately discusses the revival against the property owned by Hustead at the time of his death and the revival against the property which he had conveyed in his lifetime. As to the former, the court said, page 479: "As to his estate it is clear the lien of the judgment extended for five years from the time last named (the date of death), without revival against any property which he owned at the time of his death." There follows a rather lengthy discussion of the statutes applicable to the land which he had conveyed and, although the reasoning is not entirely clear, the discussion ends on page 480 with the statement: "As to the estate, the judgment against Hustead clearly remained a lien for five years from his decease. . . . . ." (Italics supplied). Because of its position in the text, this statement must refer to the land conveyed. The *Page 410 opinion ends with (page 482): "As to the estate of Hustead, the lien of the judgment was renewed in 1918 by his death for the period of five years, and the same would have been true against a grantee as to property conveyed by unrecorded deed where the purchaser was not in actual possession (Lyon v. Cleveland,170 Pa. 611), but, as to those whose deeds were entered, the scire facias was necessarily issued within five years of the date of their recording, the grantor having died thereafter." (Italics supplied).
It is significant to contrast the language of the Act of 1849 that "when a judgment has been or shall be regularly revived between the original parties," with the language of the Fiduciaries Act of 1917, which provides an automatic revival by death, that "although such judgments be not revived by scire facias or otherwise after his [the debtor's] death." I think this difference was deliberate and intended. The revival of a judgment against a dead debtor presents a number of difficulties for the creditor which do not exist in the revival of a judgment against one who is alive. Considerable periods of time frequently elapse between the death of the debtor and the grant of letters to his personal representative. Frequently, no letters are issued until and unless a creditor makes the move, and problems are often encountered in ascertaining who the terre-tenant or tenants are.
I would affirm the judgment.
RHODES, J., joins in this dissent.
1 A writ of sci. fa. to revive a judgment issued within the five-year period preserves the lien of the judgment, even though judgment on the writ is not entered until after the five-year period. Act of March 26, 1827, P.L. 129, Sec. 1, amended by Act of June 1, 1887, P.L. 289, Sec. 1, 12 PS 868.