Rankin v. Rinehart , 66 Pa. Super. 385 ( 1917 )

Opinion by

Head, J.,

Although the case at bar is not ruled by. Brubaker’s Est., 59 Pa. Superior Ct. 109, the judgment we are compelled to enter here is clearly foreshadowed in the reasoning of the opinion of President Judge Bios in the case cited. The earlier statutes on the subject of the liens of judgments against the lands of deceased debtors were there carefully reviewed and their language and scope, as compared with the Act of May 3, 1909, P. L. 383, pointed out. The marrow of the decision in that case is clearly stated in these excerpts from the opinion. “It is to be presumed that the legislature knew of the construetion that had been given to the earlier acts and intended to abrogate the rule the courts had deduced. This...... is the clear meaning of the Act of 1909. But did the. legislature intend it to have a retroactive effect? Unquestionably, to construe the act as applying to judgments obtained before its passage, where the decedent died after its passage, would not be giving such effect, and doubtless it should be so construed. But it would be giving it a retroactive operation to hold that a lien, which at the time of its passage was, as against heirs and devisees, unlimited as to time, was destroyed if the decedent had died more than five years before its passage, or, that it was converted into a lien of three years’ duration if the decedent had died three years before its passage. If anything is clear, it is that the legislature deemed five years the reasonable time within which the holder of the lien should revive it, and it is only by holding that the plaintiff in the judgment in question had five years from the date of the passage of the act within which to revive its lien, that the act could be applied to the lien in question without giving it a retroactive operation. ......It is clear that when the judgment in question was originally entered (1893), when it was last revived (1903), and when the defendant in it died (1906), its lien was without limit of time as against the heirs and devisees of the defendant. As only three years had elapsed between the death of the decedent and the passage of the Act of 1909, we think it clear the lien was not divested, etc.”

The material facts of the case at bar are thus stated by the auditor whose careful opinion was adopted by the learned court below: “The important dates are these: May 22, 1908, judgment revived and continued as a lien on the real estate in question; September 21, 1908, George Barnes, owner of the land encumbered by the judgment, died; May 3,1909, date of passage of .the Act of Assembly; July 1,1915, amicable revival of the judgment entered May 22, 1908.” It is thus apparent the plaintiff in this judgment had allowed more than five full years after the date of the death of the debtor therein and more than five full years after the passage of the Act of 1909 to elapse without attempting to revive the lien of the judgment. There is no room therefore for the discussion of the question whether or not the statute could or should have any retroactive effect. Following our construction of it in Brubaker’s Estate, supra, and again holding the legislature intended it to operate but prospectively, its bar has destroyed the lien of the judgment in question.

We cannot excise from the operation of the statute all judgments that had been entered prior to its enactment. The legislative intent is too clearly expressed. We quote the language of the act: “All judgments which at the time of the death of a decedent shall be a lien on his real estate shall continue, etc.” Nor is it possible, at this late day, to successfully argue it is not competent for the legislature to enact such a statute. Viewed from the standpoint of the common weal, statutes .of limitation are statutes of repose. It is, it always has been, to the interest of the State there should be within some reasonable time, to be defined by the lawmaking power, an end to litigation. The question was fully considered by this court in Shelly v. Dampman, 1 Pa. Superior Ct. 115, whére the decisions of the Supreme Court of the United States were reviewed and followed. In Bowden v. The Philadelphia, W. & B. Railroad Company, 196 Pa. 562, the subject of statutes of limitation, operating only on the remedy and not on the cause of action, was again carefully considered and the right of the legislature to enact such statutes was clearly upheld by our own Supreme Court. There remains nothing more for us to say on this branch of the case.

It is urged, however, upon our consideration the present devisee of the land in question is estopped to take defense under the Act of 1909 because she made a verbal promise to the executor of her husband’s will she would pay Ms debts, including the judgment in question. We cannot determine in tMs case what right of action, if any, would result from a breach of such a promise, or what would be the appropriate remedy to enforce such a right of action. We have before us a proceeding in rem. If by force of the law of the land the judgment in question had lost its lien as against the real estate it formerly bound, the execution process of the courts could not be successfully used to enforce the lien that once existed but had been lost through the failure of the plaintiff in the judgment to act within the reasonable time fixed by the legislature.

The assignments of error are overruled and the decree of the court below dismissing the exceptions to the auditor’s report is affirmed. The appeal is dismissed at the cost of the appellant.