Barb v. Sayers , 1884 Pa. LEXIS 284 ( 1884 )

Mr. Justice Stebeett

delivered the opinion of the court, October 20th, 1884.

Some of the allegations of fact, upon which plaintiff claimed an unconditional verdict for the land in controversy, were not denied, and as to the others there was evidence from which the jury might, and probably would, have found them to be true. Both parties claimed under James Hughes and Alfred Myers, who died testate, the former in July, 1.861, and the latter in November, 1864, having respectively given their executors full testamentary authority to sell and cqnvey real estate, of which they died seised, and make deeds for lands sold by them respectively in their lifetime. In February, 1864, Myers, by articles of agreement, witnessed and ratified by one of Hughes’s executors, agreed to sell and convey to John Henderson a tract of land containing 200 acres, more or less, including the land in dispute, for eight dollars per acre. Af-terwards, on June 1st, 1876, the executors of Hughes and Myers conveyed the land to Dr. I. N. Owens, and took from him a judgment bond as security for residue of the consideration. On that bond judgment was regularly entered the same day, and thus became a purchase money lien. During the continuance of the lien execution was issued on the judgment, and by virtue thereof the land in dispute vras levied on, sold and conveyed by the sheriff to the plaintiff in January, 1881. The plaintiff’s testimony, as already observed, tended to prove these facts. Some of them were matters of record, and such of them as were not conclusively established by record evidence or conceded by defendant were clearly for the consideration of the jury; and we cannot assume that under proper instructions they would not have been found in favor of plaintiff. There was also evidence tending to prove that shortly after the articles of agreement were signed, Henderson, with the assent of his vendors, transferred his interest therein to Dr. Owens, and thus it came to pass that the deed was made directly to him and his bond taken for the unpaid purchase money.

The plaintiff, resting his claim upon the testimony tending to prove the facts above stated, requested the learned judge to instruct the jury as set forth in his first point. He refused to so charge, and therein we think there was error. It is a familiar principle, and one that needs not the citation of authority to support it, that a sheriff’s sale on a purchase money judgment, the lien of which is continuous and cotemporaneous-with the conveyance of the land, vests a good title in the purchaser, and divests all equitable interests in the land, subordinate to the legal title Bound by the lien of the judgment. Prior to their conveyance to Owens the vendors held the legal title as security for the unpaid purchase money, and if, when their deed was delivered to him, his judgment bond for purchase money was taken and entered up the same day, they acquired a lien on the legal title thus conveyed, which remains in full force until divested by the sheriff’s sale.

The equitable title, under -which defendant claimed, was derived from White, who bjr articles of agreement contracted to purchase the land from Henderson a few days after the latter agreed to buy the whole tract from Myers and Hughes’s executors. The equitable title thus acquired by White, and by his assignees transmitted to defendant, was clearly subordinate to the legal title bound by the purchase money judgment on which the land was sold, and hence it was divested by the sheriff’s sale. If the jury had been permitted to consider and pass upon the testimony, and had found, as they might have done, that the allegations of fact embodied in plaintiff’s first point were-true, there is nothing in the case to exempt it from the operation of the principles above stated.

It was not merely the equitable title, originally acquired by Henderson under the articles of agreement, that was sold and conveyed by the sheriff to plaintiff; but, if it had been, the result would have been practically the same, and the authorities cited by plaintiff’s counsel on that subject would be applicable. The fact of the conveyance by the executors to Owens was not questioned, and if the jury had found, as they might hare done from the evidence, the other facts embodied in plaintiff’s first point, it was the legal title that was sold, and the equitable title of White, which was subordinate thereto, was divested. It follows from what has been said that the point should have been affirmed.

The learned judge also erred in charging as complained of in the 1st and 8d specifications. The suit was not brought to enforce the contract of February, 1864, between the executors of Hughes and Myers and Henderson. That contract was specifically performed by the conveyance to Owens in 1876.

Judgment reversed and a venire facias de novo awarded.