Landell's Appeal

1. A sheriff’s sale of real estate, under a judgment recovered in a scire facias upon a mortgage, passes to the purchaser title to the mortgaged premises discharged of equities of which the mortgagee had no notice or knowledge. 2. Upon the distribution of the proceeds of a sheriff’s sale of real estate . under a judgment upon a mortgage thereof, which mortgage had been executed by one who held the legal title to the premises as trustee ex maleficio, the owner of the equitable title under said trust ex maleficio is entitled to claim the surplus of said fund after payment of the mortgage debt, to the exclusion of judgment creditors of the mortgagor.

Appeal from the Court of Common Pleas No. 3, of Philadelphia county: of July Term 1883, No. 183. This was an appeal by Isaac E. Landell and Edwin A. Landell, to the use of the Pennsylvania Sugar Refining Company, from a decree of the said Court distributing the proceeds of a Sheriff’s sale&of real estate under a writ of levari facias, on a judgment in sci. fa. sur mortgage against Charles M. Hilgert, trading as John Hilgert’s Sons. The auditor appointed to distribute the fund in Court, found the facts to be as follows .- In 1878, John Hilgert being the owner of certain premises (being the same that produced the fund in Court) mortgaged the same to Powers & Weightman for $0,000. On May 20, 1881, Charles M. Hilgert, son of said John Hilgert, by false and fraudulent representations that Powers & Weightman wanted the money for said $6,000 mortgage, and that a certain paper then presented for his signature was a new mortgage to be made to raise money for paying off the same, procured John Hilgert to execute said paper, his wife joining therein, which was dated May 20, 1881. and recorded May 23, 1881. This paper was in fact an absolute deed for said premises to the said Charles M. Hilgert, reciting a nominal consideration of $10,000, no part of which was paid. On January 16,1882, Charles M. Hilgert executed a mortgage of said premises for $25,000 to John. Lowber Welsh, a bona fide mortgagee, which mortgage, and an assignment thereof dated August 5, 1882, to Wm. H. Newbold’s Sons & Co., were duly recorded. Upon a scire facias issued upon said mortgage against Charles M. Hilgert, judgment was obtained September 4, 1882, and a levari facias issued, under which the mortgaged premises were sold at sheriff’s sale for $21,500. The sheriff paid the execution creditor’s debt, interest and costs, and the surplus resulting from said sale, amounting to $1327.35, he paid into Court which is the fund for distribution. This fund was claimed, on the one hand, by Isaac E. and E. A. Landell upon a judgment held by them against Charles M. Hilgert prior in lien to other incumbrances of record. On the other hand, the fund was claimed by John Hilgert, father of Charles M. Hilgert, on the ground that he was the equitable owner of the premises which produced the same, because Charles M. Hilgert procured the said conveyance to himself by actual fraud and hence became a trustee ex maleficio. The auditor reported that the fund in court being the proceeds of Charles M. Hilgert’s interest, whatever that might be, John Hilgert, claiming not through or under Charles M. Hilgert, but paramount and adverse to him, had no standing to participate in the distribution. The auditor therefore awarded the fund to the Landells on their judgment. Exceptions filed by John Hilgert to the above ruling and award of the auditor were sustained by the court (no opinion filed) and a decree was entered awarding the fund to John Hilgert. Isaac E., and Edwin Landell thereupon took this appeal, assigning for error the action of the eourlMn sustaining said exceptions to the auditor’s report, and the said decree of the court.