Hughes v. Torrence , 111 Pa. 611 ( 1886 )

Mr. Justice Sterrett

delivered the opinion of the court, February 15th, 1886.

To warrant the entry of judgment in favor of plaintiff, it is of course necessary that at least a portion of the original judgment, on which the seire facias issued, should appear to be unpaid. The words contained in the entry of satisfaction on the mortgage record, viz., “ The debt thereby secured having been fully paid,” amount to an admission that the judgment, in which the debt was merged, had theretofore been paid, and. in the absence of evidence to the contrary-would be conclusive of the fact; but the facts and circumstances connected with the satisfaction of the mortgage clearly show that such was not the case; that 12,000 of the debt evidenced by the bond on which the .original judgment was entered remains unpaid. Indeed that fact is distinctly admitted by the case stated, and must therefore be accepted as true; and there is nothing in the case stated that would have the effect of estopping either the legal or equitable plaintiffs from claiming the balance thus admitted to be due. If Mackintosh, Hemphill & Co. had not assigned the judgment to Mrs. Torrence, they would have had a right, for aught that appears, to collect the unpaid balance. It does not appear that any one acted on their admission, above referred to, that; the debt was fully paid, and, nothing having been done to estop them from collecting the admitted balance, they had a right to assign the same to Mrs. Torrence, either for value or as a gift, and thus invest her with all their right, title and interest therein. The fact that she previously united with her husband in the deed conveying the land in question to Johnston could not estop her from enforcing the lien of the judgment in the same manner that her assignors could have done. She is not in any way affected by her hus band’s warranty against incumbrances, etc. It follows, there' fore, that there is nothing to prevent her administrator from enforcing payment of the admitted balance of the judgment against the land originally bound by the lien thereof in the hands of the terre tenants, unless the lien as to them has been permitted to expire for want of proper steps being taken to keep the same alive. This brings us to the only remaining question in the case, viz.: Whether the proceedings in this scire facias to revive the original judgment, etc., have had the effect of continuing the lien thereof against the land in the hands of the terre tenants? In view of repeated decisions of this court this should no longer be an open question. In Porter v. Hitchcock, 98 Pa. St., 625, it was distinctly ruled, as in effect it had theretofore been, that where a scire facias to revive a judgment is issued, within five years from the rendition thereof, against the defendant therein only, and after due service judgment is entered against him (as was done in this case), the issuing of an alias scire facias and service thereof on the terre tenant, within five years from issuance of the original scire facias operates to revive and continue the lien of the original judgment against such terre tenant. The facts of that case were, in effect, the same as in the case at bar. In 1876'the terre tenant bought property encumbered b^v the lien of a judgment entered in 1875, recorded her deed and went into possession. Afterwards, in 1877, a scire facias was issued on the judgment, was duly served on the defendant therein, but not on the terre tenant. In 1879 judgment was taken against the defendant in the scire facias, and in 1881 an alias scire facias was issued and served on the terre tenant. She appeared and filed an affidavit of defence, in which she claimed the alias scire facias was inoperative to continue the lien of the original judgment against her title, because it was not issued and served for more than five years from the date of her purchase. The court below thought otherwise, and accordingly entered judgment deterris; and, on writ of error to this court, the judgment was affirmed in an opinion by our brother G-okdon. The reasons given therefor need not be repeated here. They will be found in the opinion referred to and in the cases there cited.

Judgment reversed and judgment de terris is now entered, on the case stated, in favor of plaintiff and against defendants for $2,000 with interest from May 3d, 1880, and costs.