Coulter v. Selby

• Decision Date: 24 July 1861
• Citation: 39 Pa. 358
• Parties: Coulter <I>versus</I> Selby.
• Court: Pennsylvania Supreme Court

39 Pa. 358

Coulter versus Selby.

Supreme Court of Pennsylvania.

July 24, 1861.

ERROR to the District Court of Philadelphia.

Wm. Henry Rawle and George M. Wharton, for plaintiff in error.—The point presented by this record is, whether in an action to revive a judgment against the heirs of a deceased defendant, they can be permitted to show that, as heirs or devisees, they take and hold nothing by descent from their ancestor.

The Act of February 28th 1834, § 25, provides that judgments which are a lien at the death of the defendant, shall continue to bind the real estate of deceased during the term of five years from his death, although not revived by sci. fa. or otherwise, and shall rank according to priority at the time of such death, and, after the expiration of such term, shall not continue a lien on the real estate of the decedent as against a bonâ fide purchaser, mortgagee, or other judgment-creditor of such decedent, unless revived by sci. fa. or otherwise, according to the laws regulating the revival of judgments. The "laws" here referred to are those of April 4th 1798, sections 2, 3, which must not be confounded with those which refer to judgments obtained since the death of debtor. It relates exclusively to judgments inter vivos — those recovered against a debtor in his lifetime: Fetterman v. Murphy, 4 Watts 424; Konigmacher v. Brown, 2 Harris 273; Aurand's Appeal, 10 Casey 151.

When the defendant is thus dead, the service must be made on the heirs in the legal sense — persons taking by descent, and being thus made parties as heirs, they should be permitted to show that, as such heirs, they have nothing by descent from their ancestor. Else it might be said that, by being brought into court by writ, by their appearance, and by permitting the judgment to be revived against them as heirs, they shall not be permitted hereafter to show that they are not heirs — that they take nothing by descent: Drum v. Kelly, 10 Casey 417; Colburn v. Trimpey, 12 Id. 463.

There was no printed argument for defendant in error.

The opinion of the court was delivered, July 24th 1861, by THOMPSON, J.

The error assigned is to the refusal of the court to allow the widow and heirs to amend and plead to this sci. fa. quare ex. non, that they took nothing by descent from their intestate. The plea, beside being a novelty, was of no use to them. The object of the sci. fa. was not an action to establish a debt, but simply to authorize execution on an existing judgment, if cause to the contrary were not shown by the heirs or terre-tenants. Satisfaction was not to be had of them personally, because they might not be able to show cause why execution should not issue. It is true, judgment quod recuperet is in form the judgment in such case; but the sci. fa. itself shows where the debt is, and the object of the writ. It does not, like a summons, demand a debt, but simply calls on them to show any legal cause why the sum found due against their ancestor shall not be paid out of his estate.

Previously to the statute of Westm. 2, 13 Ed. 1, if execution were not issued within a year and a day after judgment, the plaintiff was obliged to resort to an action of debt on his judgment. This was owing to a presumption of payment or satisfaction within that time. It was a troublesome remedy, and to amend it the statute cited was passed (2 Sand. R. part 2, p. 5, n. 1)...