The opinion of the Court was delivered by
Rogers, J.At the time of the death'of John Tillará, the debts against his estate were of equal grade, and unless something has occurred since, the plaintiffs and defendant are still ’entitled., in the order of payment, to a pro rata division of the assets. Before the act of 1797, the debts of a deceased person remained a lien, for an indefinite length of time. For remedy of this inconvenience, the legislature enacted, that no such debts, except they be secured by mortgage, judgment, or recognizance, or other record,-shall remain a lien on lands and tenements longer than seven years, unless an action for the recovery, thereof, be commenced and duly prosecuted, &c., within the period of seven yea re. The plaintiffs and defendants duly prosecuted their claims to judgment, within the time proscribed by the act. In that respect, *96therefore, the condition on which the lien was to remain longer than seven years, was fully complied with. But it is said, that the executors of Ellenberger, having neglected to sue out a scire facias within five years after judgment, have lost their lien. We are of a different opinion. There is nothing in the act of the 4th April, 1798, which warrants the idea, that the legislature intended to interfere with the act of. the preceding year. - It relates to judgments, rendered inter vivos, not to judgments against deceased persons, which continue- the lien created by the death of the intestate; and are governed by the directions of the act of the 4th April, 1797. The law to which we are referred in the preamble of the act of 1798, is, the statute of frauds, of the 21st March, 1772. 4 Dall. 320, Welsh v. Murray. The mischief which it was intended to remedy, was, that after great length of time, purchasers might find it difficult to discover what judgments were outstanding, so as to affect the land they wished to purchase. The lien extending to all the lands of the debtor, no person could know, what part he might safely purchase. Under the act of 1797, the judgment creates no new lien. The law creates the lien on the lands of the decedent according to the order of payment, directed by the act oi 1794. If Ellenberger’s executors would have commenced no suit at all, the lien would have continued seven years; and if suit had been brought immediately before the expiration of the seven years, it would have continued until five years after the judgment. It cannot be a sound construction of the act, which would lead to the result, that the greater the diligence of the party in prosecuting his claim to judgment, the shorter the time the lien continues.
Judgment for the plaintiffs.