CAMPBELL verʃus RICHARDSON.
T
HE Defendant has been bail for his brother, who fuffering judgment to go againft him, a Scire ƒacias was iffued againft the defendant, and in due (illegible text) urfe judgment thereon—In the interim, between the recognizance of bail and judgment on the Scire ƒacias, feveral judgments were obtained againft the defendant by his proper creditors, executions iffued, and his real eftate was feized and fold. But the proceeds not being fufficient to fatisfy all the judgments, the Sheriff brought the money into Court, to be difpofed of as the Court fhould direct.Sergeant, for the plaintiff Campbell, infifted, that recognizance of bail is a lien upon the land from the date of the recognizance, and, therefore, claimed a preference to all judgments on the Scire ƒacias—He cited to this purpofe, Stat. 29. Car. 2. c 19.2 Bac. Abr. 363. 365. 10 Vin. 559. 563 2 Salk. 564 Cro. Eliz. 551.
Ingerʃol, on the contrary contended, that Campbell should only have preference from the date of the judgment on the Scire ƒacias ; and argued from the ftatute of frauds and our acct of Affembly (illegible text)taining the mode of paying the debts of descendants, and cited 1 Peer Wms. 333 Cro. Jac. 449.
After confideration, the president delivered the opinion of the Court, on the 26th of Auguft.
shippen, Preʃident.—This is a queftion concerning the binding nature of a recognizance or bail, as to the lands of the bail ; and whether, in Pennʃylvania, a prior recognizance creditor, or fubfequent judgment creditors, fhall have the preference.
From the cafes cited, it appears, that, although lands in England are bound by recognizance, yet there is fome uncertainty as to the time from which they are bound : whether from the caption, or from the inrollment of the recognizance ; or from the judgment againft the principal ; or from a non eʃt inventus returned upon the Ca. Sa. And feveral of the cafes which mention that lands are bound upon the
1785
caption, are fince the Statue of frauds, which fays that the lien fhall be from the inrollment.
I do not find that there have been any legal decifions upon (illegible text) point in Pennʃylvania ; but a general opinion has taken place, which has been carried into univerfal practice, that recognizances (illegible text) not here binds lands, until they are proceeded upon to judgment againft the bail. Hence it is, that, whenever a purchafe, or mortage, is made, the examination at the offices, and the certificates which are given by the prothonotaries, are only of the judgments in force againft the feller, or mortgagor, and not concerning recognizances. The practice has, indeed, been fo general, that ll the conveyancers and Lawyers, for a long courfe of years, have, on fuch occafions, confined their enquiries to that circumftance alone ; and many titles muft, therefore, depend upon it, which would be (illegible text)fhaken it a contrary conftruction fhould now be adopted.
Whether this opinion took its rife from the different fituation in which the lands of this country are from thofe of England, and from their being liable to be ʃold for debts ;or from the filence of the Legiflature upon the fubject ; or from other caufe, we can but conjecture. It is remarkable, however, that when our act for the prevention of frauds were made, in the year 1772, although the Legiflature copied the claufe n the Engliʃh ftatute relating to judgments, and was minutely exact as to the time from which they fhould bind hands, yet they totally omitted the claufe relating to recognizances. This filence, it is true, is no abrogation of a law ; but it looks as if the Affembly had taken up the popular idea, that recognizances did not bind till judgments were obtained upon them, and, therefore, they thought that no particular provifion was in that refpect neceffary. Upon what principle, indeed, could they elfe have been fo careful of innocent purchafers in the one cafe, and not in the other?
We may alfo properly take into view, that, long before the paffing this act for the prevention of frauds, the relative dignity of judgment debts, and of thofe upon recognizance, had been fettlled by a law, directing the order of paying the debts of perfons deceafed. That is—1ft. Phyfic and funeral expences.— 2d. Debts and duties to the Queen.—3d. Debts due to the proprietor and governor.—4th. Judgments. —5th. Debts due by recognizances.—6th. Rents &c. If however, it fhould be faid, that this is only a direction in what order debts fhall be paid, without any refpect to the binding nature of judgments and recognizances, it may be anfwered, that, from the fituation of lands in this country, that confederation muft neceffarily be included. Here, as I have already obferved, lands are chattels for the payment of debts : they are chattels too in the hands of executors ; and all writs of Fi. ƒa direct the levy accordingly to be made, of the goods and chattels (illegible text) of the deceafed, in the hands of the executor. If, then,, in fuch a cafe, two writs are executed upon lands, founded one upon a prior recognizance, and the other on a judgment (illegible text)to the recognizance, but
prior to the judgment upon it, the Court muft clearly decree a preference to the judgment creditor. This feems ineed to be a legiflative direction as to recognizances in fimilar cafes ; nor, for what confusion would arife, from fupporting the lands of decreafed perfons to be bound from one time, the lands of living perfons from another ?
Upon the whole, we think, that great mifchiefs and dangers would be impofed upon honeft purchafors, if, at this time of day, we fhould unfettle what has been fo long the general opinion and practice on this fubject. Therefore,
Let the plaintiff take preference only from the date of the judgment on the Scire Facias.