Holman's Appeal , 106 Pa. 502 ( 1884 )

Mr. Justice Green

delivered the opinion of the court,

Independently of the third section of the Act of 22d April, 1856 (P. L. 582), it is not pretended that the recognizance given by an acceptor of land, on proceedings in partition in the Orphans’ Court for payment of the shares of the widow and other heirs, is not alien unless indexed in a docket, or index kept for that purpose. The whole contention in this case for the necessity of such an index, is founded exclusively upon the section of the Act in question.

Its language is as follows: “ That the lien of no judgment, recognizance, execution levied on real estate in the same or another county, or of writs of scire facias to revive or have execution of judgments, shall commence or be continued as against any purchaser or mortgagee unless the same be indexed in the county where the real estate is situated in a book to be called the judgment index; and it shall be the duty of the prothonotary or clerk forthwith to index the same according to priority of date, and the plaintiff shall furnish the proper information to enable him to perform said duty.”

It will be observed that this is not a statute of limitation regulating the time of the continuance of existing liens, and the method of reviving them, but a prohibitory statute denying any effect as a lien to the various judgments and proceedings mentioned, unless the same are indexed as required.

Hence it is that we are now asked to decide, that ever since the Act of 1856 went into effect, in October of that year, recognizances given in the Orphans' Courts of this commonwealth, on proceedings in partition, for the payment of the valuation money of real estate accepted in such proceedings, have not been, and are not, liens upon land accepted, as against purchasers and mortgagees, unless indexed upon the judgment index or some index kept in the Orphans’ Court office for that purpose. It is almost thirty years since this Act was passed. It is admitted by the learned counsel for the appellant, that the present question has never before been raised. It is certain that to hold such a doctrine now would disturb, if not destroy, a vast number of titles, would impair the value of liens of this character to an unknown extent, and would practically revolutionize the law upon this subject as commonly understood by the bench and the bar throughout the commonwealth. Nothing short of extreme necessity would justify a court of last resort in taking such a step. Fortunately, no such necessity exists in this case.

The literal terms of the section in question, prohibit lien as against purchasers and mortgagees, to four species of judicial acts or proceedings, viz: (1) judgments, (2) recognizances, (3) executions levied on real estate, and (4) writs of scire facias to revive or have execution of judgments, unless the same are indexed as prescribed.

' All of these acts and proceedings are within the function, and indeed peculiar, to the Court of Common Pleas, and all save one, are exclusively cognizable and possible in that court. The recognizance is known in the Orphans’ Court as it is in the Criminal Courts, but the others are not. But recognizance is also a form of obligation known to the practice of the Common Pleas, and therefore, where it is coupled with other acts and proceedings of that court, the whole being subject to a regulation common to all, it is not necessary to infer that it is used in any other than Its natural, associated sense. The plain and apparent reading of the section is to prohibit lien to certain judgments and proceedings in the Common Pleas except upon certain conditions which also are peculiar to that court. For there is no such book either created by law or established or maintained by practice, as the “ judgment index,” in any other court than the Common Pleas; and it is in a book of that name that the acts and proceedings mentioned in the section are to be indexed.

It is not known to any member of this court that there is a book called “judgment index,” kept in any Orphans’ Court office in the state. This Act of 1856, contains no provision specifically directing such a book to be opened or kept In the Orphans’ Court, and we can not declare that such a duty to keep such a book in that court arises under the third section, except by inferring it. But there is no ground for such an inference unless we also infer that the word “ recognizance ” used in the section, necessarily includes recognizance in the Orphans’ Court. We do not feel able or willing to draw either of these inferences, as all the words of the section, including this one, can be satisfied without doing so.

If it be said that the prothonotary of the Common Pleas must index the Orphans’ Court recognizances in the judgment index kept in his office, it is enough to reply that the Act neither gives him the necessary authority to do so, nor directs it as one of his duties.

We cannot resist the conclusion, that if the legislature had intended to make so great and radical a change in the law affecting the lien of Orphans’ Court recognizances, as is contended for by the appellant, they would have said so in plain and unmistakable language, and made adequate provision for carrying into effect the consequent changes in the existing practice. For us to do so, would be scarcely short of judicial legislation.

Apart from the considerations thus far presented, it is manifest that the purpose of the third section of the Act of 1856, was to provide a system of liens which would give notice to subsequent purchasers and mortgagees. But in cases of this kind, such notice is amply furnished by -the ordinary investigation of title, which all such persons are bound to make in any event. Orphans’ Court recognizances, such as this, are directly in the line of the title. They are a part of the very proceedings by means of which title is derived, and cannot be overlooked if the title is really examined. We have said on three distinct occasions, that there is a radical difference between these liens and those that appear on the record of the Common Pleas, that the former are in the line of the title, while-the latter are outside. Thus in Riddle &Pennock’s Appeal, T Wright, 181, we said: “The argument is an at-

tempt to apply to liens for owelty of partition in the Orphans’ Court, the principles which govern the liens of judgments in the Courts of Common Pleas; they are, however, entirely unlike; the one is in the line of the title, the other is outside. An Act of Assembly has declared that a judgment docket shall be kept in the Common Pleas. This is for the information of subsequent lien creditors and purchasers. No such requirement exists respecting liens in the Orphans’ Court.” The same sentiment was repeated in Bailey v. Commonwealth, 5 Wright, 478; and McCandless’ Appeal 2 Out., 494. Other and obvious considerations might be submitted in support of the conclusion we have reached, but it is not necessary to repeat them. We are of opinion that the case was correctly ruled in the court below and therefore,

The decree is affirmed and appeal dismissed at the cost of the appellant.