Allegheny National Bank's Appeal

Mr. Justice Mercur delivered the opinion of the court, January 3d 1882. This fund in contention was produced by a sheriff’s sale of the land of Mrs. Annie E. Mackey. It was allotted to her in the partition of the estate of her father John Adams. In his devise to her of a distributive share, he directed that certain debts and claims should be deducted therefrom, thus practically making them a charge on her portion for the benefit of the estate. The claim of the appellant is one of those referred to in the will. In the partition this claim was charged as owelty of partition on the purpart allotted to Mrs. Mackey. The appellant claims by virtue of the decree so charging it. The appellee claims on a mortgage executed by Mrs. Mackey and her husband on her interest in the whole land, before partition. The decree, imposing the sum charged as owelty, on the purpart allotted to Mrs. Mackey, is in an unusual form, and rather irregular; but it stands as a final decree. In this collateral proceeding its validity and conclusive effect cannot be questioned. It does, however, appear on the facts found by the auditor, that the decree -was equitable between all the parties thereto, and worked no injustice to her creditors. Full effect must then be given to the claim of the appellants as one of owelty. Whether it constitutes a lien prior to that of the mortgage is the question. The precise question was before us in the recent case of McOandless’ Appeal, 2 Outerbridge 489. The authorities were fully examined and considered. We there held that owelty of partition constitutes a first lien on the purpart of the former tenant in common, and is entitled to priority over a mortgage on his undivided interest, given by him before partition. That case is fully sustained by the authorities. It is unnecessary to cite them now, or repeat the argument there presented. We adhere to it as a settled rule of law. In so far as the first and third assignments might be understood as giving to the claim of the appellant a preference over other claims of owelty secured by the decree in partition, they are not sustained. With all such its lien stands on an equal footing. The second assignment is sustained. Decree reversed, and record remanded with instructions to decree distribution conformably with this opinion, and that the costs of this appeal be paid out of the fund.