delivered the opinion of the Court:
The evidence shows that, on the 20th day of April, 1876, Francis A. Stevens and Frank L. Stevens recovered a judgment, in the Circuit Court of Cook county, in an action of ejectment, against Carter Smith, for the possession of the land in controversy in this suit.' Said judgment, which was read in evidence by the plaintiff in support of his scire facias, failed to specify the nature or extent of the estate claimed by the • plaintiffs in their declaration, or established by them at the trial, the terms of the judgment being merely that the plaintiffs recover of the defendant the possession of said land. Neither the pleadings nor the finding of the court were offered in evidence, and there is nothing in the present record showing the nature of the title established at the trial beyond what is furnished by the judgment alone.
It appears that at the time said judgment was recovered, the defendant prayed for and perfected an appeal therefrom to this court, and that on the 22d day of June, 1877, it was affirmed by this court. No further steps were taken in the matter of said judgment, either in this court or in the Circuit Court, until June 29,1887, at which date the plaintiff obtained from the clerk of this court a certified copy of said judgment of ■affirmance. Said copy was filed in the Circuit Court on the 11th day of August, 1887, and thereupon the writ of scire facias herein was sued out. Francis A. Stevens, one of the plaintiffs in whose favor said judgment was rendered, died about April 1, 1881, leaving his co-plaintiff his only heir at law, and the writ of scire facias was accordingly sued out in the name of the surviving plaintiff alone.
Various propositions are submitted by the appellant in support of his contention that the judgment upon the scire facias should he reversed, which we will consider in their order. The first point made is, that no writ of procedendo was ever issued from this court to the Circuit Court in the matter of the judgment in ejectment, and that the Circuit Court therefore has never been re-invested with jurisdiction over said judgment, and can not properly entertain a proceeding for its revival. The mode by which the Circuit Court may be reinvested with jurisdiction of a judgment which has been removed to this court by appeal, after the affirmance of such judgment by this court, is prescribed by the eighty-second section of the Practice Act. That section is as follows :
“When an appeal or writ of error shall he prosecuted from a judgment, order or decree to the Supreme Court or Appellate Court, and such appeal or writ of error is dismissed, or the judgment, order or decree is affirmed, upon a copy of the order of the Supreme Court or.Appellate Court, as the case may be, being filed in the office of the clerk of the court from which the case was originally removed, execution may issue, and other proceedings may be had thereon in all respects as if no appeal or writ of error had been prosecuted.”
A copy of what order of this court is to be filed in the office of the clerk of the court below to reinvest that court with jurisdiction to proceed with the execution of its judgment ? Manifestly a copy of the order of affirmance. According to-the usual practice of this court no subsequent order is made. The judgment of affirmance is the final order, and terminates-the litigation so far as this court is concerned. A certified copy of that order, when filed in the court below, operates as a procedendo, and authorizes that court to proceed with the-judgment in all respects as though no appeal had been taken.
The corresponding provisions of the Practice Act of 1845 were more explicit on this point than is our present statute. That act provided that it should be the duty of the clerk of the circuit court, “upon a copy of the order of the Supreme-Court dismissing said appeal or writ of error or affirming said, judgment,” being filed in his office, to issue execution, etc. E. S. 1845, chap. 83, sec. 50.' We do not think that the change in the phraseology of the statute as it appears in the revision of 1874 is such as to indicate any change in the practice in this respect. The words appearing in the act of 1845 descriptive of the order a copy of which was to serve as a procedendo were omitted from the revision of 1874, as we may-well presume, because they w’ere deemed by the revisors as-quite unnecessary, the meaning of the statute being sufficiently clear and unequivocal without them.
The next point made is, that by our statute the lien of a judgment continues only for seven years, and therefore that the judgment in this case, so far as it affected the title to the-land in question, became functus officio at the expiration of that period, and is incapable of being revived so as to vest in the plaintiff the right of possession. This proposition confuses the right to recover the possession of the land established in the plaintiff by the judgment in ejectment, with the mere lien upon the lands of the judgment debtor, which the statute gives as a collateral right, to the plaintiff in a money judgment. Such lien is the mere right to have the lands upon which it rests sold for the purpose of making the money recovered by the judgment. That right undoubtedly expires unless enforced within the statutory period, and having once expired, is incapable of revival, although upon revival of the judgment a new lien may be acquired. But here the land itself, or rather the-possession of the land, is recovered by the judgment, and the-right thus established is no more extinguished by the lapse of seven years, than is the plaintiffs right to the debt or damages recovered in a money judgment. In either of these cases, the-plaintiffs right to the subject recovered continues and is capable of enforcement, in a proper mode, so long as the judgment itself is not barred by the Statute of Limitations. That statute provides that judgments of any court óf record in this State may be revived by scire facias, or an action of debt maybe brought thereon, within twenty years from the date of such judgment. 2 Starr & Curtis, 1559.
It is clear that the defense sought to be interposed, based upon the Statute of Limitations, can not be sustained. These-defenses rest upon the allegation, first, that at the time thescire facias was sued out, the defendant had been in adverse possession of the premises in question for more than twenty years, and secondly, that the defendant had then been in possession and had paid the taxes on said premises for seven years under claim and color of title. The proceeding by scire facias to revive a judgment is not an original suit, but is merely a continuation of the suit in which the judgment was rendered. State v. Foster, 7 Vt. 52; Eldred v. Hazlett’s Administrator, 38 Pa. St. 16 ; Hatch v. Eustis, 1 Gall. 160; Brown v. Harly, 2 Fla. 159; Pickett v. Pickett, 1 How. (Miss.) 267; Ingram v. Belk, 2 Strobh. 207; Fitzhugh v. Blake, 2 Crunch, C. C. 37. The conclusion therefore would seem to follow, that no limitation based upon continuity of possession can be said to have been running since the commencement of the ejectment suit, and that the only limitation available in such cases is that which bars the judgment itself, viz., twenty years.
The defendant attempted, in answer to the scire facias, to set up title in Asahel Gage, under certain tax deeds issued to him subsequent to the recovery of the judgment in ejectment. No proof was made or offered, however,.tending to connect the defendant with that title, and consequently the defense thus proposed was disallowed by the court. We are unable to perceive how, in this proceeding, the defendant can avail himself of an outstanding title in a third person with whom- he has no connection and in which he has no interest. The only questions he can now raise are those which go to the plaintiff’s right, as against the defendant, to have the judgment executed. ■As said in Dowling v. McGregor, 91 Pa. St. 410: “The only defense in the trial of a scire facias on a judgment is, a denial of the existence of the judgment, or proof of a subsequent satisfaction or discharge thereof.” Whether there is an outstanding paramount title in some third person is immaterial. Proof of such title might undoubtedly have defeated the plaintiff if it-had been interposed at the trial of the ejectment suit, but that is simply because in that trial the -plaintiff had to recover, if at all, upon the strength of his own title. But having recovered his judgment, thus establishing conclusively, as between himself and the defendant, his right to the possession, the question of his right to have the judgment executed is one which arises between him and the defendant alone. The defendant can not refuse to yield possession to the plaintiff because the latter may be compelled in turn to .yield possession to the owner of a better title the day following. An outstanding title with which the defendant has no connection is no longer available as a defense.-
_ But there is another ground upon- which, in our opinion, the judgment must be reversed, and that is, that it does- not appear, either from the averments o'f the scire facias or from the evidence adduced at the trial, that the title established' by the plaintiff at the trial of the ejectment suit had not expired prior to the commencement of the proceedings by scire facias.
In these proceedings no declaration is required, (Practice Act of 1872, sec. 26), the writ taking the place and performing the office of a declaration. It follows that the writ should set forth, at least in substance, every fact upon which the plaintiff’s right to have his judgment revived depends. Where a party, by delaying execution, has suffered his judgment to become dormant, a legal presumption against its continued validity is raised, which he must take upon himself the burden of meeting and rebutting. The writ therefore must show not only that he has not had execution of his judgment, but that his damages still remain unpaid, or that his right still subsists.^ In McVickar v. Heirs of Ludlow, 2 Ohio, 246, in discussing the necessary averments of writs of this character, the court say: “They must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for.” In that case the court held the writ insufficient because it failed to aver that the plaintiff’s judgment was unsatisfied. To same effect see Wolf v. Poundsford, 4 Ohio, 397; Union Bank of Georgetown v. Adm’r of Meigs, 5 id. 312.
In the form given by Mr. Tidd for a scire facias to revive a judgment in assumpsit, it is alleged that “execution of the damages still remains to be made to the plaintiff.” Tidd’s Practical Forms, 304. In the form given by the same author for a scire facias to revive a judgment in ejectment, there is a recital of the recovery by the plaintiff of “his term then and yet to come of and in a certain messuage,” etc., giving the date of the commencement and end of the term, and alleging that said term, “is not yet expired,” and commanding the defendant to show cause why the plaintiff ought not to have “the possession of his said term yet to come.” Tidd’s Appendix, 721.
In this case the scire facias recites the recovery by the plaintiffs of the defendant, in said ejectment suit, of one messuage, piece or parcel of land, with no averment as to the nature or extent of the estate established at the trial. In ejectment the recovery is only of the possession, and therefore the recital of the writ applies as well to a recovery where the estate established is only a term for years, as where it is in fee. The only further averment in the writ bearing upon the point under consideration is that “although said judgment be given as aforesaid, yet that no execution upon said judgment hath ever been made and that execution of said judgment still remains to be made to the plaintiff.” This by no means excluded the possibility that the recovery may have been only of a term for years, and that no portion of such term “is yet to come.”
But the evidence is more defective than the pleading. The only evidence offered to show the nature of the recovery or the duration of the estate recovered was the judgment order in the ejectment suit, and that merely shows an order that the plaintiffs recover of the defendant .“possession of the premises in their said declaration mentioned, (describing said premises), and that a writ of possession issue therefor. ” Nothing is shown as to the nature of the estate established. Neither the pleadings nor the finding of the court was offered in evidence. If those documents had been produced, the nature of the plaintiff’s title might have sufficiently appeared, as was the case in Mapes v. Scott, 94 Ill. 379. But as the evidence stands, there is nothing showing that the plaintiff’s title may not have been a mere estate for years which has long since expired. This clearly is not sufficient to overcome the presumption unfavorable to the plaintiff’s rights which necessarily arises from the dormancy of his judgment.
Upon the ground last above stated the judgment will be reversed and ’the cause remanded.
Judgment reversed.