Staunton.

#### Spencer & Another v. Flanary, Adm'r., & Others.

September 14, 1905.

1. Limitation op *Actions*— Executions—Death *of Defendant*— Revival.—Upon a judgment obtained against a living person no execution can issue after his death, and the right to revive by *scire facias*against his personal representative, or to maintain an action thereon, is barred by the statute of limitations at the end of five years after the qualification of his personal representative. If a lien is acquired on a debtor’s choses in action by reason of a *fieri facias*issued on the judgment against the defendant in his life-time, it is lost unless the judgment be revived as aforesaid or some action be instituted for its enforcement within five years from the qualification of his personal representative.

Appeal from a decree in chancery of the Circuit Court of Lee county, in a suit brought by appellants for the purpose of subjecting to the alleged lien of a *fi. fa.*against Chadwell Brit-tain in his lifetime the proceeds of .a claim against the United States Government which had come into the hands of his administrator since his death. The bill was dismisséd, and complainants appeal. _

*Affirmed.*

The opinion states the case.

*Orr &*Noell, for the appellants.

*Duncan & Gridlin,*for the appellee.

Harrison, J.,

delivered the opinion of the court.

The judgment sought to be collected in this proceeding was *396rendered March. 30, 1877, against Ohadwell Brittain. Two executions were issued thereon, and each of them was returned “no property found,” the date of the last execution being April 30, 1886, and returnable to the following July rules. In 1893 the judgment debtor, Ohadwell Brittain, died, and in November of that year his estate was committed to O. E. Flanary for administration.

Brittain had begun in his lifetime the prosecution of a claim against the United States Government for property taken by the Federal army during the late war between the States. The prosecution of this claim terminated successfully in March, 1905, and the bill in this case was- filed to the April rules, 1905, seeking to enforce the judgment and execution against Brittain, as a preferred lien upon the claim which had been allowed by Congress, the proceeds of which were then in the hands of his administrator.

No revival of this judgment, either by *scire facias*or action was ever had against the administrator of Ohadwell Brittain.

A demurrer was filed to the bill, and a plea of the statute of. limitations interposed by the administrator. The Circuit Court rested its decision upon the defense of the statute of limitations, and dismissed the bill.

There can be little doubt of the correctness of this conclusion when the law, as we understand it, is applied to the facts stated. There are two sections of the O'ode which bear upon and provide periods of limitation to actions against *personal representatives.*The first is section 2920, which is the general statute of limitations of all personal actions, except a judgment or recognizance, and, after enumerating the several periods of limitation of such actions, the section concludes:

> *“Provided, that the right of action, against the estate of any person hereafter dying, on any such award or contract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the quali-*
>       *397
>       *ficatioii of his personal representative, or if the right of action shall not have accrued at the time of the decedent’s death, it shall not continue longer than five years after the same shall have so accrued.” See Kesterson*v. *Hill,*101 Va. 739, 45 S. E. 288.

The other section to which we have reference, providing a period of limitation to actions ag’ainst personal representatives, is 3577 of the Code. As already seen, section 2920 does not provide a period of limitations in the case of judgments; but the law governing and directly applicable to such cases is found in section 3577, which is no less explicit with respect to judgments than are the provisions of section 2920' with respect to other claims.

Section 3577 provides as follows: *“On a judgment, execution may he issued within a year, and a*'scire facias’ *or an action may he brought within ten years after the date of the judgment; and where execution issues within the year, other executions may he issued, or a*'scire facias’ *or an action may he brought within ten years from the return day of an execution on which there is no return by an officer, or within twenty years from ]the return day of an execution on which there is1 such return; except that when the*'scire facias’ *or action is against the personal representative of a decedent, it shall he brought within five years from the qualification of such representative.”*

The language of this statute is too clear to call for interpretation or construction. The provision is express and emphatic that where the *scire facias*or action on a judgment is against the *personal representative*of a decedent, the proceeding *must he taken within five years from the qualification, of such personal representative.*More than eleven years elapsed after the qualification of Chadwell Brittain’s administrator before the present suit to enforce the judgment was instituted, and in the mean time the judgment had not been revived, or any other action taken thereon.

*398At common law there was no limitation upon the right to enforce a judgment, but the statute, in effect, as it now stands, has been in force for many years. The only pi*actical difference between the law as it stood in the first revised Code of 1819, and the statute now in force is, that, in addition to the limitation imposed by the former, which went only to judgments where execution had not issued, the present statute imposes a limitation as to the writ of *scire facias or*action, although execution has issued. 1 Kev. Code, 1819, Ch. 128, secs. 5 & 17. Code, 1887, sec. 3577.

As early as the year 1823 the present contention was made before this court, and it was held, under practically the s'ame staüite, that “a .judgment obtained against a testator in his lifetime, and not revived against his personal representative after his death, within five years from the time of his qualification, is barred by the statute of limitations.”

This decision has stood without challenge for more than eighty years, and if authority were needed it would be all that was necessary in support of the proposition that the judgment asserted in this case is barred by the statute of limitations. *Peyton's Admr.*v. *Carr's*Exor., 1 Rand. 436; 1 Barton’s Law Pr., 104.

It is contended that, by virtue of section 3601 of the Code, a lien was created upon the claim of Chadwell Brittain against the government, which the appellant has the right to enforce.

Without passing upon the question, whether or not a lien was created upon a mere claim for property taken by the Federal army during the war, but conceding, for the sake of argument, that such a lien was created, like all other liens it was capable of being lost, .and in this instance was lost by reason of the failure to revive or take other action upon the judgment against the administrator within five years from his qualification.

The next section, 3602, to that relied on, furnishes a complete' answer to this contention. It provides that the lien acquired under section 3601, *“shall cease whenever the right of*
      *399
      *the judgment creditor to enforce the judgment hy execution,*‘scire facias’ *or action ceases ”*showing a care on tbe part of tbe Legislature not to impinge upon tbe limitations it bad placed upon actions against personal representatives. Tbe right to enforce tbe judgment by execution ceased at tbe death of Chad-well Brittain; tbe right of *scire facias*or action ceased at tbe end of five years after tbe qualification of bis administrator.

It is true there is a line of cases, following *Taylor*v. Spindle, 2 Gratt. 44, which bold that it is not necessary to revive a judgment before filing a bill in chancery to enforce tbe lien of such judgment upon real estate, but these cases have no bearing upon tbe question of whether tbe judgment is barred. That is determined by tbe application of tbe statute, whenever any proceeding is taken to enforce it.

'Whatever may have been tbe life of a judgment bad the debtor lived, before it was barred by tbe statute of limitations, it cannot be enforced after bis death unless tbe proceedings contemplated by tbe statute are taken against bis personal representative within five years from tbe date of tbe qualification cf such representative. Tbe Legislature manifestly bad in view, not only tbe protection of tbe estates of deceased persons against stale demands, but also a wise purpose to facilitate tbe settling .and winding up of such estate within a reasonable time. Tbe wisdom of such laws is apparent, and if we bad the power we would have no disposition to circumscribe their scope or impair in any degree their operation.

For these reasons tbe decree appealed from must be affirmed.

*Affirmed.*