In re McKenzey's Appropriation

Rogers, J. A judicial sale divests all liens, whether general or specific. 16 Serg. & Rawle, 410, Barnet v. Washebaugh; 1 Penn. Rep. 96, McLanahan v. McLanahan; 3 Rawle, 109, The Presbyterian Corporation v. Wallace. To this general principle there are many exceptions; and this, it strikes me, is one. The ■sheriff’s recognisance is taken by virtue of the act of the 13th of April, 1834; which provides, that every sheriff, before he shall be commissioned, or execute the duties of his office, shall enter into recognisance, and be bound in a bond with at least two sufficient sureties, in the sums and'manner therein mentioned. The act provides the form of the recognisance, and makes it a lien, as well on the land, as goods and chattels of the sheriff, and bail. It is taken for the use of the Several suitors and parties interested in the execution of writs, and for the well and faithful execution and performance of all and singular the trusts and duties of his office To [160] extend, therefore, the scope of the decisions referred to, so as to embrace the lien of a sheriff’s recognisance, will defeat or greatly impair the wise and salutary designs plainly indicated in the act, by converting real into personal security. It will, moreover, be extremely unjust to sureties whose property will be diverted from the payment of their own debts and locked up in court, where there has not, and perhaps never will be, any breach of the recognisance whatever ; or, in other words, it must remain to answer a contingency which may never happen. It is true, cases may occur where the lien of the recognisance may affect the price of the lands when sold at a judicial sale ; but this is a contingency which can occur but seldom, and, moreover, one to which the surety has voluntarily exposed himself; and his convenience and benefit must yield to the public good. It never entered into the contemplation of either the court or the legislature, that a lien expressly created for a great public object should be defeated or impaired by any judicial sale whatever. In the case before us, as is justly remarked by Judge Hepburn, there is no definite sum fixed, or amount capable of being ascertained ; nor is there any one in being to whom any part of the fund in court can be paid. It, therefore, comes within the principle settled, that when an encumbrance cannot for any cause be satisfied out of the purchase money, it of course remains a charge on the land. The lien must be definite in its amount, certain in its application, or capable of being made so. 3 Rawle, 129, The Corporation v. Wallace; 4 Rawle, 447, 3 Watts & Serg. 34. The effect of the doctrine contended for by the plaintiff’s counsel, is to impound the whole purchase money, and divert the proceeds from the creditors of the surety, to the injury of creditors, the surety, and those who may have an interest in the recognisance; a proposition too unjust to be for a moment entertained. If retained under the direction of the court, the fund must be unproductive, to the great injury of both creditors and debtor. If placed out on real security as suggested, it may not be forthcoming to answer the exigencies of those who have claims upon the fund. The question, viewed under whatever aspect, is surrounded with difficulties and inconveniences, which can only be avoided by holding, that the land passes into the hands of the purchaser, subject to the lien created by the recognisance. Decree affirmed.