150 Pa. 508 | Pa. | 1892
Opinion by
It is conceded that the report of the auditor in Re Assigned Estate of John Loutey which was affirmed by this court (not reported) is conclusive of this case, if the question now raised was involved therein. Our inquiry therefore is as to the extent of that decree. The learned auditor in the present case was of opinion that the finding of his predecessor in Loutey’s
But, secondly, what the auditor in Loutey’s Estate determined was not a surcharge more or less upon the assignee, but the status of Crans to set up the assignment at all. On the question of surcharge he found against the assignee, but he declined to go into the amount, on the ground that Crans, the only creditor before him, was estopped by his own acts from setting up or enforcing the assignment. His finding was that as between Crans and Merrick the assignment must be treated as a nullity, as if never made, or ended and a reconveyance legally made in the forms of the law. In his supplemental
The report of the learned auditor in Loutey’s Estate however expressly left untouched, as beyond his province, the rights of Crans as the holder of the judgment against Loutey. Appellant took the real estate from Loutey while this judgment was an apparent lien upon it. Whether it was a lien which equity would permit Crans to assert against Merrick, in view of the array of facts in auditor Junkin’s unanswerable argument on the question of estoppel, may well be doubted. But it is not necessary to consider this point, for prior to the sale from which this fund arose, the continuity of the lien was broken, and all claim of Crans upon the property was at an end. The judgment was obtained October 23, 1874; a scire facias to revive issued August 14, 1879, but was returned nihil habet; an alias scire facias was not issued till October 9,1884, and judgment was not obtained upon it till November 22,1884. The hold of the lien on the property was gone. This is admitted as to purchasers and incumbrancers, by the learned auditor in the present case, but he reports that the appellant was not a purchaser within the protection of the rule, because he was a trustee under the assignment. This ground has already been disposed of. In the absence of a trust, and waiving the question of estoppel, both parties were entitled to stand on their legal rights, Crans as a lien holder and Merrick as a purchaser. When Crans allowed the lien of his judgment to expire he lost the only hold he had on the property.
Decree reversed, and fund ordered to be awarded to appellant. Costs to be paid by appellee.