Malone's Appeal

Mr. Justice Mbrcur delivered the opinion of the court in each appeal, January 6th 1876. Malone’s Appeal. This is an appeal from a decree of the court distributing the fund raised by a sale of the real estate of William Clinton, an habitual drunkard. The sale was made by his committee on leave of the court. The appellant claims the money should be applied to a judgment in his favor on the land sold. After the entry of this judgment, Clinton was by inquisition duly found to be an habitual drunkard. It does not appear that the court then made any order in regard to the payment of the costs attending the inquisition, as is made its duty by the second section of the Act of 16th April 1849, Purd. Dig. 981, pi. 13. Those costs appear to be unpaid. There now appearing to be no personal estate out of which they can be paid, the auditor reported and the court decreed that they be paid out of the proceeds of the real estate. The fund is insufficient to pay the judgment of the appellant. If these costs are thus paid, it takes that amount from the appellant, which he would otherwise receive on his judgment. All the assignments involve the correctness of giving a preference to the payment of these costs. The 21st section of the Act of 24th February 1834, Purd. Dig. 421, pi. 85, relating to the debts of a decedent, creates preferences in favor of funeral expenses, medicine and medical attendance, servants’ wages, &e., yet it never has been held to postpone record liens, although for want of personalty such debts may be paid out of the proceeds of real estate. So the preferred wages of miners, laborers and mechanics are not entitled to a preference over prior liens of record in the distribution of the proceeds of real estate: Wade’s Appeal, 5 Casey 328; Johnston’s Estate, 9 Casey 511. With fully equal reason, it must be held that the costs attending [486] •the inquisition shall not he paid out of the real estate of the lunatic to the prejudice of a prior judgment-creditor. In the absence of any order or decree of the court charging these costs on the estate of the lunatic, I am unable to see how they have the forcé of a lien. But surely they cannot now occupy any better position than if the court had, on the confirmation of the proceedings, made an order of record that they be paid out of the estate. If they had then become a recorded lien, they would not thereby have acquired a preference over the prior judgment lien of the appellant. It is urged, however, that the expenses incurred in conducting the proceedings in lunacy should be paid out of the estate in the hands of the committee. • Weir v. Myers, 10 Casey 377, is cited in support of this view. The correctness of that case is conceded whenever the facts admit of its application. No question arose there in regard to a prior lien on real estate. Nor does it appear that the fund then in the hands of the committee for distribution arose from the sale of real estate. The question now is not whether the costs of the proceedings shall be paid by the committee out of the assets in his hands, but whether he can take from a prior judgment-creditor the fruit of his vested lien ? We are clearly of the opinion that he cannot thus divert the property which in equity belongs to another. The second and third assignments are sustained. The first assignment appears to blend costs and expenses connected with the sale with the other costs and expenses made on the inquisition and with the charge for professional services of counsel for more than a year. The data given is insufficient to enable us to separate them on correct principles. Such as are reasonably connected with, or necessarily leading to the sale, should be paid out of the proceeds ; all preceding items should be disallowed. A question has arisen involving the validity of the judgment in favor of the appellant. To settle this, an issue is now pending. It cannot, therefore, at present be determined how much of the judgment will ultimately be sustained. Such sum as the judgment appears to be entitled to under the principles we have indicated must be retained by the court, to abide the result of the pending issue. Decree reversed, and record remitted to the court below, with instructions to decree distribution conformably with this decision. Neal & "Wampler’s Appeal. The second, third and fourth assignments will be considered together. They charge the improper rejection of certain mechanics’ claims, in the distribution of a fund raised by a sale of real estate. The sale was made by the committee of an habitual drunkard. The mechanics’ claims had been filed against a “ double dwelling-house,” &c. The objection taken was that [487] the structure against which the lien had beén filed was not a “ double house,” but was two distinct houses, and the claim was not apportioned. Sect. 13 of the Act of 16th June 1836, Purd. Dig. 1033, pi. 43, declares “ in every case in which one claim for materials shall be filed by the person against two or more buildings owned by the same person, the person filing such joint claim shall, at the same time, designate the amount which he claims to be due him on each of such buildings, otherwise such claim shall be postponed to other lien creditors.” Sect. 38 of the Act of 25th April 1850, Idem, pi. 42, extends the law to cases for work done; and for work done and materials furnished, as fully and in the same manner as previously authorized and allowed in cases of materials furnished. Hence, if the building against which the lien was filed, was composed of two distinct houses, the claimants had disregarded the clear mandates .of the statute, and their claims must be postponed to those of other lien creditors: Thomas v. James, 7 W. & S. 381; Chambers v. Yarnall et al., 3 Harris 265; Goepp v. Gartiser, 11 Casey 130. The auditor found as a fact, that the structure was two distinct buildings. The court confirmed that finding. A reference to the evidence clearly justifies this conclusion. They are shown to be as distinct as any two houses in a row; completely divided by partitions from lower floor to top of attic; the cellars separated by double chimney and substantial partitions; no communicating doors between the two buildings; separate outside doors, both front and rear, for each; and the front yards separated by a fence extending from the division line between the buildings to the street fence. It is true they were contiguous parts of one block, yet they were separate houses and so occupied. But being a disputed question, it was for the auditor to find the fact: Munger v. Silsbee, 14 P. F. Smith 454. He found correctly.' As the fifth assignment does not involve the question of payment or satisfaction of the- judgment after its rendition, there was no error in the auditor not going behind it: Borland’s Appeal, 16 P. F. Smith 470. We have shown in an- opinion, just filed, in Malone’s Appeal, from the same decree, the validity of the judgment will he determined in another issue,,and the fund will await that result for a final decree. On the whole record, the appellants have no just ground for complaint. Appeal dismissed, at the costs of the appellants.