104 Pa. 372 | Pa. | 1883
The opinion of the court was delivered November 5th 1883 by
The fund for distribution represents two separate pieces of real estate sold by the sheriff on a writ of fieri facias against Christian Stoehr. The lot fronting on Forbes street, 14th ward, Pittsburgh, was sold for $700, and the two 23rd ward lots were sold together for $40. The Forbes street lot was subject to a .municipal lien, filed October 12th 1877, in favor of the city, for paving, etc., under the Penn Avenue Act, which provides, inter alia, that the cost of grading, curbing and paving streets shall be assessed against the property fronting thereon, and shall be paid in ten equal annual instalments, with interest, etc. It was also subject to liens for unpaid taxes, and a mortgage of $600, in favor of appellant, dated and recorded April 36th 1881; which mortgage was-prior to all other liens except the paving and tax. liens above mentioned. The 23rd ward lots were subject to tax liens for the years 1881 and 1882, aggregating $27.81 and costs thereon, which together amount to a sum sufficient to absorb the entire proceeds of those lots-. In his special return, the sheriff appropriated the $40, proceeds of the 23rd ward lots, to the tax liens and costs thereon, and thus, in effect, took all the costs, as taxed on the writ, out of the proceeds of the Forbes street lot. These costs amount to $59.95, including $6.75, costs accrued on the judgment prior to issuance of the execution. He also appropriated out of the same fund $191.54 to the paving lien, in full, and the residue, $259.77, to appellant’s mortgage. Exceptions to the special
The subjects of complaint in the several specifications of error, are, 1st. That no part of the fund should have been appropriated to the $6.75 costs on the judgment upon which the execution was issued; 2d. That the $40 realized from the 23rd ward property was not appropriated, as it should have been, first to half of the costs incurred in effecting the sale, to wit: $20.60, which consists of one-lialf of the costs taxed on the writ, less the costs of the judgment, and $12 sheriff’s poundage; and, 3d. That the sum of $191.54 was not appropriated to appellant’s mortgage instead of the Forbes street paving lien.-
As to the first and second subjects of complaint, there is manifest error in the appropriation. When two or more pieces of real estate are sold on a junior judgment which is clearly not entitled to participate in the fund realized from the sale, the costs of effecting the sale, that is, the costs incurred on the execution process alone, including advertising and excluding costs of .the judgment proper, should bo divided into as many equal parts as there are separate pieces of property sold, and one portion thereof charged to the fund realized from each. In this case one half of the execution costs should have been charged to the proceeds of the 23rd ward lots, and the other to the fund realized from the Forbes street lot. In no other way can the rights of respective lien creditors, on different-pieces of property, be preserved. In Lahr's Appeal, 9 Norris 507, it is said, the plaintiff in a judgment not reached in distribution of the proceeds of real estate, is not entitled to any costs, except such as are actually necessary to effect the sale. The costs incurred upon prior fruitless efforts to bring about a sale cannot be allowed to affect prior lien creditors. This is merely a re-affirmance of a principle settled by prior adjudications, among which are Malone’s Appeal, 29 P. F. Smith 481, and Fry’s Appeal, 26 P. F. Smith 82. In the latter case, the present chief justice said : “ In' the distribution of money raised by sheriff’s sale of real estate, the costs of sale should first be.paid, and the residue of the fund applied to the liens divested by the sale according to their priority. The costs thus preferred do not include those made in obtaining the judgment, but commence with the issuing of the execution necessary to effect the sale.” The amount of costs involved in this contention is small, but the principle is nevertheless important and should not be disregarded.
. The remaining contention involves a new and important question arising under the Act of April 2d 1870, P. L. 796, entitled “ An Act to provide for the improvement of Penn
Wo are clearly of opinion that the Eorbes street lien was not divested by the sheriff’s sale on the junior judgment, and therefore not entitled to participate in the distribution.
Decree reversed, at the costs of the appellees, and record remitted to the court below with instructions to distribute the fund in accordance with ‘ this opinion.