Eaton's Appeal

Mr. Justice Sharswood delivered the opinion of the court, January 2d 1877. The provision of the sixth section of the Act of February 28th 1866, Pamph. L. 116, entitled “ An Act to incorporate the borough of Titusville, Crawford county, into a city,” that “ all taxes, rates and levies assessed upon real estate in said city shall be a lien upon said real estate until paid. ***** And the lien shall be continued until the taxes are fully paid and discharged” — does not change the established law that a judicial sale divests all liens and turns them over to the proceeds, but qualifies it only to this extent, that so far as the taxes are not reached and paid in full, they shall continue to be a lien. Such have been the decisions of this court upon the construction of the first section of the Act of February 3d 1824, Pamph. L. 18, “ An Act relating to taxes on certain real estate in the city and county of Philadelphia” — which, in this respect, does not materially differ from this law: Allegheny City’s Appeal, 5 Wright 60; Pittsburgh’s Appeal, 20 P. F. Smith 142. It is true that the act before us does not expressly give the taxes priority over prior liens — but that necessarily follows from the provision that they shall continue a lien until fully paid and discharged. Gormley’s Appeal, 3 Casey 49, is not applicable. It was a question „ of subrogation — the claim to which was destitute of equity. The tenant had paid the taxes, and his right to reimbursement was from his landlord, who was bound to pay them— and not from any prior mortgage or lien creditor. It was not a claim by the public authorities on the fund in court for unpaid taxes. They had been paid. The case does not state what the taxes were — whether state or city. The court evidently did not regard the special provisions of the acts creating the lien material to the only question in the cpnse. It is very important that bidders at public judicial sales should have a plain, simple rule to go by. They are bound to ascertain the amount of the public charges, and they can then understand that the taxes will be paid from the purchase-money certainly, and they will hold clear and discharged of the lien unless in the rare case, where the amount of the fund raised by the sale is not sufficient to discharge them in full. The auditor and court below were therefore right in awarding payment out of the fund, next after the costs, of the taxes due the city of Titusville. We are of opinion, however, that there was error in giving priority to the judgment of Keys Brothers to any amount. The plaintiffs in that case had appealed from an award of arbitrators in their [155] favor. Pending the appeal the judgments of Eaton and Cole were entered up, and subsequently Keys Brothers, with the consent' of defendant, withdrew their appeal. The court below decided that the award thus reinstated became a lien from its date. The case of Lentz v. Lamplugh, 2 Jones 344, is directly in point to the contrary. It decided that where the plaintiff appeals from an award in his favor and recovers a verdict and judgment more favorable to himself, the lien of such judgment has no relation to the date of the award. In that case there had been a conveyance subsequent to the award; and it was held that the grantee took discharged of the lien. It is evident that it made no matter what became of the case after the appeal, so far as the lien w.as concerned, whether it was withdrawn, or a less or a more favorable verdict obtained. At the time when the conveyance was made, this court held that there was no lien, and the purchaser took'free from the encumbrance. The reasoning of Chief Justice Gibson in the opinion is very cogent. The law will not allow the plaintiff to claim by two judgments in the same action, or to reverse his judgment and still claim by it; or to say “ I will hold by the one, and take all I can get by the other.” “Nothing but the force of a statute could abolish this principle; and the legislature has not applied it.” But even if the reasoning were not thus cogent, we ought to hesitate long before overruling a case which has stood unchallenged for more than a quarter of a century. There is certainly nothing in Wilkinson’s Appeal, 15 P. F. Smith 189, to shake it. There was no question of lien of the award in that case; it was a distribution of the proceeds of personal property. An execution had been issued - on an award before the twenty days allowed for the appeal had expired; and all that was decided was, that it was entitled to the fund, notwithstanding the objections of subsequent execution-creditors. Decree reversed — each party to this appeal to pay their own costs. And now, January 2d 1877, it is ordered that the balance of the fund, after payment of the costs and the taxes due the city of Titusville, be paid to Eaton & Cole, on their judgment, No. 125, November Term 1873, and No. 42, November Term 1873, and the record be remitted,. that this decree may be carried into effect.