4 Watts 396 | Pa. | 1835
The opinion of the Court-was delivered by
—The first error assigned cannot be sustained. The plaintiff had caused search and inquiry to be made after the deed itself, in those places and of those persons where and with whom it was most natural as well as reasonable to suppose that he' would have found it if not lost or destroyed, or have gotten intelligence of it. He, however, failed in obtaining either. Then the record of the acknowledgement of the deed, being the next best evidence of the execution of it and of its contents, became admissible, in the absence of the deed itself.
The second error assigned, which is the only remaining one, raises the single question, whether a purchaser of land at sheriff’s sale under an execution against one upon whom it descended in fee as heir at law, buys it discharged from the debts of the ancestor, when sold within seven years after the death of the latter, and before any suits are commenced for the recovery of such debts, or the evidence of them is put on record 1 By a series of decisions on the subject a general rule has been laid down and established, that the party purchasing at a judicial sale fairly made, shall take and hold the land so sold, not only free from all existing liens for and on account of the debts of the person as whose estate it is sold, but free likewise from all liens for and on account of the debts of the previous owners of the land through, by and from whom he derived the legal right and title for it. To this general rule, however, there are some exceptions. Prior mortgages are made so by act of assembly. So where the nature of the prior lien consists of annual payments to be made for an uncertain length of time, and therefore such as to render the cash amount or value thereof incapable of being ascertained on account of the uncertainty of its duration, it must be considered as forming an exception ; as, for instance, where the land is charged with the annual payment of money, or other thing, for the support or maintenance of one or more persons during life; or, with the annual payment of the interest upon one-third of the valuation money of the
But it is objected that, as all the debts of a dying debtor become liens upon his real estate the instant he dies, and continued to be so under the act of 1797, for the space of seven years, but now reduced to five by a late act, such of the creditors of the deceased ancestor as have not put their claims on record must, in many cases, lose the security which the law has given for their payment, unless the land be sold subject to them; that the execution creditor of the heir has a right to demand and receive his debt from the sheriff as soon as the sale of the land shall be perfected, unless the latter can show prior liens in amount sufficient to absorb the money
Judgment affirmed.