Wiley's Appeal , 1879 Pa. LEXIS 218 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

We need not discuss the question whether the judgment of the appellant against Henry Andrews for. $687.02, is a purchase-money judgment as to other lien-creditors. We have only to consider it as between the parties. The judgment is clearly a part of the consideration Andrews was to pay for the real estate. The administratrix sold' the latter in pursuance of an order of the Orphans’ Court, for the sum of $3800. There were certain liens upon the property; one in favor of Abram Denlinger for $1500, and one in favor of Catharine Stewart for $450. The sale was for cash, but for the convenience of the parties, new judgments were given by the purchaser to Denlinger and Catharine Stewart for the amount of their respective claims; $343.51 remained charged upon the land for the benefit of the widow, and the judgment of $687.02 was given to the appellant as guardian of the minor children to secure their interest. Andrews, the purchaser, having made an assignment for the benefit of creditors, claimed, and was allowed $120' exemption out of his personal estate, and now demands the balance of the exemption, $180, out of the proceeds of the sale of the real estate. To allow it would reduce the fund applicable to the plaintiff’s judgment by a corresponding amount.

That there is no equity in his claim is manifest. He has not paid for the property out of which he claims the exemption, and he seeks to get it from the parties to whom the purchase-money belongs, to wit, the minor children of Andrew Stewart, deceased, the intestate, whose property was sold and purchased by Andrews. There is no exemption as to purchase-money creditors, the proviso expressly excepting such debts from the operation of the enacting clause of the statute: Nottes’s Appeal, 9 Wright 361; Ulrich’s Appeal, 12 Id. 489. The appellee contends, however, that the appellant’s judgment was not for purchase-money. In this he is flatly contradicted by his own bond, which contains this clause: “The same being for purchase-money on house and lot of ground, southwest corner of West Orange and Mulberry streets, Lancaster, Pennsylvania.” While it may be that in a contest between lien-creditors, this statement in the bond might not amount to much,‘yet, as between the parties it is important. As to them, it is an agreement that the judgment shall have the force and effect of a purchase-money lien. We are of opinion that it amounts to an estoppel, and that the application of this principle meets the justice of the case.

The decree is reversed at the cost of the appellee; and it is now ordered and decreed that the said sum of $180 be distributed to the lien-creditors in the order of their priority.