Assigned Estate of Gibble

Opinion, Mr. Justice Williams : These cases were here one year ago, and are reported in 124 Pa. 583. We are now asked to reconsider the decision then made, on one of the questions presented. The facts on which the question is raised are unchanged, and are as follows: In the year 1881, John W. Gibble bought from Christian C. Snyder a farm containing 216 acres for the price of $11,000. Of this purchase money, $5,000 appear to have been paid, and a bond and mortgage were given to secure the payment of the remaining $6,000. One hundred and eighty-four acres, with the farm buildings thereon, were in the county of Lebanon, and 32 acres were in Lancaster county. These parts were separated only by the county line, and together constituted one farm, which was bought, occupied and farmed as a whole. Gibble recorded his [375] deed, and Snyder his mortgage, in Lebanon county, where both lived. On the same day that he executed the Snyder mortgage, Gibble also executed one to Logan for $2,000, which was recorded in Lebanon county. Subsequently, judgments were entered in Lancaster county, which are now held by Oberholtzer. Neither of the mortgages was recorded in Lancaster, but Snyder madé his deed subject to the “ bond and mortgage for part of said purchase money given by said John W. Gibble to Christian C. Snyder, bearing even date herewith, for six thousand dollars.” The whole farm was thus subject to a lien for the unpaid purchase money secured by the Snyder mortgage. The 184 acres in Lebanon were subject, also, to the Logan mortgage. The 32 acres in Lancaster were covered by the judgments now owned by Oberholtzer, subject to the Snyder mortgage. This was the situation when, in 1886, Gibble became insolvent, and made an assignment of his property, real and personal, for the benefit of his creditors. The assignment was recorded only in Lebanon county. In 1887, under an order of court made in Lebanon county, the assignee sold this farm at public sale. To enable him to make title to the purchaser for the whole farm, the holders of the Lancaster county judgments consented to and ratified the sale so made, reserving their right to come in on the fund. The farm was advertised and sold as one farm. The terms of sale provided that the title was to be made subject to the Snyder mortgage, and its amount deducted from the purchaser’s bid. The sale was made at $9,776. Of this sum, $6,900 were appropriated to the Snyder mortgage, and the amount paid to the assignee was what was left, viz., $2,876. This makes the larger part of the fund now for distribution. Who is entitled to this money ? The court below originally held that the Logan mortgage should be paid, and that the remainder should be divided into two parts, bearing the same proportion to each other as that between the quantities of land ■ in the respective counties. We reversed the court below, holding that the Logan mortgage was a lien only upon the land in Lebanon county, where it was recorded, and that the entire fund should be divided in proportion to the acreage in the respective counties. Upon that part of it winch would thus represent the part of the farm lying in Lebanon county, the Logan mortgage would have priority over the Lebanon judgments. [376] That part of the fund representing the land in Lancaster county would be applicable to Oberholtzer’s judgments. The record was returned to the Court of Common Pleas of Lebanon county, and distribution was made in accordance with our direction. The case is now here for the purpose of securing another hearing upon the subject of the basis on which the fund should be divided. The appellant asks that the relative value, by the acre, of the land in Lancaster, be ascertained, and that the division of the fund be made on that ground. He alleges that the Lancaster lands are worth more than twice as much per acre as those in Lebanon, notwithstanding the fact that the buildings are all in the latter county, and that he should be allowed to share in the fund accordingly. It must be borne in mind, in determining this question, that the fund was raised by a sale of the farm as a whole, and not in parts. If the Lancaster creditors had sold the land in that county separately, they could, perhaps, have secured a larger price per acre than could have been got for the whole farm if they could have made title; but the Snyder mortgage was a common burden, resting on and covering every acre in both counties, by virtue of the provision in the deed to which we have referred. A sale in Lancaster would therefore have been subject to the lien of the mortgage, and to the necessity of providing for its payment. The shortest, the simplest, indeed the only practicable, way for the Lancaster lienholders to realize anything upon their liens, was to do just what they did do; let the assignee sell the whole farm subject to the lien of the mortgage, and secure their share of the surplus left after the mortgage was out of the way. The purchaser’s bid was $9,775. Nearly $7,000 of this sum was applied to the mortgage, without any calculation of relative values, and it would be clearly inequitable to permit such a calculation now. If the Lancaster county lands are worth twice as much per acre as those in Lebanon, they should bear the common burden at that rate, before they ask to participate at that rate in the little balap.ce left after that burden has been discharged. But they left the mortgage to be paid or provided for out of the fund generally, without any calculation of values. They do not now propose to carry any more than their pro rata share of the burden, but they want more than a pro rata share of the surplus. [377] To state such a proposition is sufficient to illustrate its want of fairness. It- is a work of supererogation to add that the rule laid down in this case has no relation to that held in Carpenter v. Koons, 20 Pa. 222, or Beaupland v. McKeen, 28 Pa. 124. The startling consequences suggested by the learned counsel for the appellant, as likely to result from our ruling, are built upon a mistaken idea of what our ruling really is. We overturn no case. We lay down no general rule for distribution. We only say that a basis of valuation which has, by common consent, been adopted in the payment of common encumbrances, must, in fairness to all parties, be adhered to when the distribution of a balance of the fund comes to be made. The Lebanon land has been allowed to pay its share of the mortgage as of equal value by the acre with that in Lancaster. It must draw its share of the surplus on the same pro rata basis. We adhere, therefore, to. what was said when this case was here before; and, as the distribution in the court below was in conformity with the views then expressed, The judgment is affirmed. Mr. Justice Sterrett and Mr. Justice Clark, dissented.