152 Pa. 552 | Pa. | 1893
Opinion by
The fund in court was produced by a sale of land owned by William Wilson and C. K. Smith as tenants in common and in which their interests were equal. The land was sold upon a mortgage given by them to the appellant. The sale divested all liens. The appellees held judgments against Smith which were liens on his interests prior to the mortgage, but the
The fundamental question raised by the contention is whether an auditor to distribute a fund made on a judicial sale of real estate can, for such a default as is alleged in this case, award the fund to a subsequent judgment to the exclusion of a mortgage which is unpaid and a first lien. It seems clear to us that a negative answer must be returned to this question. The lien of the mortgage was not destroyed by the mortgagee’s default as a purchaser at the first sale, and the judgment creditors have no claim upon her in consequence of it which can be enforced by an auditor on distribution of the fund realized by the second sale. Prima facie this fund is applicable to the liens in their order and the record is conclusive, unless it is shown that they have been paid, or are maintained by collusion between the parties. The liability of a defaulting purchaser for the loss on a resale of the property is to the sheriff and the action to enforce it must be in his name: Adams v. Adams, 4 Watts, 162; Gaskill v. Morris, 7 W. & S. 32; and Freeman v. Husband, 77 Pa. 389. The liability for the loss should be established and the amount thereof ascertained and recovered in one suit. If a lien creditor can recover a portion of this loss in a distribution proceeding, by appropriating the fund applicable to the defaulting purchaser’s mortgage, can the sheriff
Decree reversed at the cost of the appellees and record remitted with direction to enter a decree in accordance with this opinion.