Fry's Appeal

Mr. Justice Mercur delivered the opinion of the court, May 25th 1874. ..In-the distribution of money raised by the sheriff’s sale of real [83] estate, the costs of sale should first be paid, and the residue of the fund be applied on the liens divested by the sale, according to their priority. The costs thus preferred do not include those made in obtaining the judgment, hut commence with the issuing of the execution necessary to effect the sale. In this case the fund was insufiicient to pay the liens which were prior to the judgment in favor of Groff, on which the sale was made. It was therefore error to apply any of the fund in payment of the costs of his judgment made prior to the issuing of the fi. fa. In decreeing the costs of subsequent judgments to be paid the error is equally manifest. The learned judge appears to have thought, inasmuch as those costs were officers’ fees, and the sheriff had collected a fund by a sale of the property of the defendant in the judgments, therefore those fees were collected, and the money was held in trust for the officers entitled to receive it. The fallacy of this reasoning is in assuming that those fees were collected. They were not collected. As the fund was insufficient to reach the judgments of which those fees form a part, and the sale was not made on process issued on either of them, no part of those judgments was collected. Hence the money could not be held in trust for the officers who were entitled to those fees. The fees for all purposes of the distribution of this fund stood upon no higher ground than other parts of the judgments to which they were attached. Decree reversed, and now it is ordered that the record he remitted, with instructions to decree a distribution conformably to this opinion, and that the costs of this appeal be paid by the appellees.