Cake's Appeal

1. A mortgage for the residuo of purchase-money of land, executed at the time of the delivery of the conveyance of the legal title and duly recorded, has priority bf lien on the land conveyed over judgments against the vendee entered after the purchase of the land and before the conveyance; and therefore a sale under a judgment entered subsequent to the mortgage does not divest its lien. 2. A judgment against the vendee entered several days after the delivery of the conveyance, though confessed for money used in paying a portion of the purchase-money of the land, is not entitled to payment in preference to prior judgments against him entered after the purchase of the premises but before the of the title. 3. The lien of judgments against the vendee entered before Bhe conveyance of the legal title, is extended to the whole estate in the premises on the union of the legal and equitable title effected by the conveyance of the latter. 4. A judgment for the purchase-money of real estate, entered on the same day as the conveyance of the legal title, has priority of lien over judgments against the vendee, entered after a parol agreement by him for the purchase of the premises and before the conveyance.

Appeal from the decree of the Common Pleas of SehuylMll county, directing distribution of proceeds of a sheriff’s sale of real estate of Samuel M. Kepner. By article of agreement, dated 23d Oct. 1850, Jonas Bock sold to Samuel M. Kepner a farm, containing above 287 acres, for a consideration .exceeding $8500. A part thereof, viz., $200 was paid on the execution of the agreement, and $3800 was to be paid on 1st April, 1851, when the deed was to be delivered; the residue, exceeding $4500, was to he paid in two equal payments, one on 1st April, 1852, and the other on 1st April, 1854, both to be secured by a mortgage on the land sold. Soon after the date of the agreement, Kepner made improvements on the land to the extent of several hundred dollars; and on the 17th April, 1851, he took possession. Previous to his taking possession, viz., on 1st April, 1851, a judgment was entered against him in favor of PT. Sertzel for $207.57. Afterwards, viz., on 1st August, 1851, a deed for the premises from Bock to Kepner, dated 1st day of April, 1851, was delivered to Kepner; and at the same time a mortgage, dated 1st August, 1851, was executed by Kepner in favor of Bock and delivered, to secure the last two instalments of the purchase-money, amounting to about $4500. The mortgage was duly recorded. For the amount of the payment previously due, viz., $3800, Kepner on the day of the delivery of the deed gave to Bock his check. The check was not paid at bank. A few days afterwards, viz., on 6th August, Kepner borrowed $2000 from H. L. Cake, and $2000 from another person, and on the same or next day, Kepner with this money took up his check. For the $2000 loaned by Cake, Kepner gave him a judgment bond, which was entered on 8th August, 1851. Subsequently, viz., on 14th February, 1852, a judgment was obtained by John Moser against Kepner, and under it the premises purchased by him from Bock were sold at sheriff’s sale, on 4th Sept. 1852, to H. L. Cake, for $2150. It also appeared that Kepner, under a parol agreement with J. Huntzinger and others, took possession in November, 1850, of a lot of ground No. 5, in the town of Ringgold. Kepner built six houses on the lot, which were completed in June, 1851. On 16th Dec. 1851, Kepner received a deed for this lot, and for an adjoining lot No. 6. At the time of the delivery of the deed Kepner gave a judgment to the vendors for $479, being the amount of the purchase-money of the two lots, and $50 for wharfage, due to them. The lot on which the houses wrere erected was sold at sheriff’s sale for $1780, and lot No. 6 for $140. Between the time of Kepner’s taking possession, under the parol agreement, and the delivery of the deed, several other creditors of Kepner obtained judgments against him, and it was stated by the auditor appointed in the matter, that it was claimed by such judgment-creditors that their judgments being liens on the equitable estate of the defendant in the lots, ought to be postponed only to the claim for purchase-money due to the vendors; but that the sum of $50 included in such judgment for wharfage, ought not to be paid out of the fund. The auditor reported in favor of the payment of the judgment to Huntzinger and others, the vendors, so far as it was composed of purchase-money, out of the proceeds of sale of lot No. 5; and further, that no title to lot No. 6 having been acquired by Kepner until the delivery of the deed to him on the 16th December, 1851, and the judgment of Huntzinger and others having been entered on the same day, it was the first lien upon the legal estate of the defendants in both of the lots, and was entitled to payment of the proceeds of sale of the two lots. In relation to the proceeds of the sale of the farm, it was contended before the auditor that though the mortgage for the purchase-money was delivered simultaneously with the deed, and duly recorded, it was not the first lien on the land within the terms of the Act of 6th April, 1830, judgments having been acquired against the purchaser after he had acquired the equitable title, and before the delivery of the deed; and that the land was sold discharged from the mortgage, which ought to be paid out of the proceeds. The auditor, however, being of opinion that the mortgage was the first lien, and that the purchaser took the land subject to the mortgage, directed the proceeds to be applied to the judgments obtained before the legal title was acquired in their order of priority. It was excepted to the auditor’s report that he erred in deciding that the land was sold subject to the mortgage, and in not awarding the payment of it out of the proceeds of sale. 2. In deciding that the judgments of Huntzinger and others must be first paid out of proceeds of sale of lots Nos. 5 and 6. 3. In deciding that the judgment in favor of H. L. Cake (which it was previously alleged was for a part of the purchase-money) was not entitled to priority over judgments entered after the agreement for the purchase of the premises and before the conveyance of the legal title. On 9th April, 1853, the exceptions were overruled and the report of the auditor confirmed. From this decree Cake appealed, —and exception was taken to the overruling of the exceptions and the confirmation of the report.