Foulke v. Millard , 1885 Pa. LEXIS 309 ( 1885 )

Mr. Justice Trttnkey

delivered the opinion of the court, March 16th, 1885.

Arrears of ground rent, a lien on the land charged, upon a judicial sale of the land, are to be paid out of the proceeds. The owner of the ground rent cannot elect to refuse the money and continue the lien. When the sheriff makes the sale, he is bound to appropriate the fund in discharge of the liens in the order of priority, or pay the money into court: Mather v. McMichael, 13 Pa. St. 301. A private sale of the land will not divest liens, and the owner of the ground rent in some circumstances may prosecute proceedings for collection without actual notice to the subsequent grantee. The latter purchases with knowledge of the charge, and often must protect himself: Charnley v. Hansbury, Id. 16. A sheriff’s sale divests the lien of the rent — no lien is divested by a private sale.

On April 22d, 1880, Clayton sued Neville for the arrears, and the summons was returned, “ Nihil habet.” In September following an alias summons was issued, which was executed by posting and advertising, and on November 22d, 1880, judgment was entered for want of appearance. After the beginning of the suit and before the entry of judgment, the land was sold by the sheriff, who paid the proceeds into court. The lien of the arrears was divested by that sale. If a sheriff’s .sale of land, subject to the lien of a judgment, be made pending a scire facias for its revival, the lien of .the judgment is discharged, and it is no consequence to the purchaser whether judgment be subsequently entered against the defendant reviving the judgment for its full amount. So, when the laud was sold by the sheriff to Millard, the lien for the arrears of ground rent, the foundation of the action in covenant, already existed, and thereafter it could not affect the purchaser. It is not a question of actual payment of the debt on which the second sheriff’s sale was founded, but whether its lien was divested by the first. The title of the first purchaser is not vitiated by the decree of the court misappropriating the fund. Had the owner of the ground rent appeared and made known his right, there would have been no such decree.

The purchaser at the second sale was as much bound to take notice of the first, and of the then 'existing liens, as would be a purchaser at a second sheriff’s sale upon a judgment that was a lien when the first was consummated. No rent that accrued after the sale to Millard was included in the action of covenant which was begun before. Th.e Act of April 8th, ■1840, providing for the posting and advertisement of the alias summons, has no application — Millard was not a terre tenant till after the beginning of that suit, and there was no occasion for him to appear and make defence.

In the opinion of the court below, filed when determining the motion for a new trial, it is clearly shown that the Act of May 25th, 1878, does not apply to sheriffs’ deeds.

Judgment affirmed.