Herbst's & Buehler's Appeal , 1879 Pa. LEXIS 258 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court,

This fund in contention was produced by a sale under the Act of 17th February 1876. It authorizes the Court of Common Pleas to order an assignee in trust for the benefit of creditors, to make sale of the assigned real estate, which is encumbered by liens. The assignment of error presents the single question whether a judgment which, at the time of sale and of confirmation, is a lien and would then be entitled to be paid out of the proceeds, is deprived of all right thereto by reason of the expiration of five years from its-entry, before payment of the purchase-money and delivery of the deed. That it is not, is expressly ruled in Tomlinson’s Appeal, ante, p. 224. The language and object of this Act of 17th February, are there carefully considered. It is shown that such a construction would be contrary to the manifest purpose and spirit of the act. As it expressly declares the judgment-liens are discharged by the confirmation of the sale, the rights of the owners of the 'judgments then attach to the fund. The confirmation is an act separate and distinct from a payment of the purchase-money : Carver’s Appeal, 8 Norris 296. A right vested at the time of confirmation is not divested by a postponement of the payment of the purchase-money. It is unnecessary to repeat the reasons given in Tomlin-son’s Appeal. They fully sustain the learned judge in holding that the right of the appellee was not forfeited after the confirmation of' the sale. Herbst, as assignee, has no such, interest in this distribution between creditors, as to give him a right of appeal, and his appeal is quashed as to the other appellant.

Decree affirmed, and appeal dismissed at the cost of the appellant.