McClellan's Estate

Opinion by Mr. Justice Williams, The fund in controversy was raised by a sale of land made under the direction of the orphan’s court for the purpose of making distribution in obedience to the will of William McClellan, deceased. By the terms of this will, an estate in the land was given to Francis, the son of the testator, and his wife, during their natural lives. Upon the death of both, the testator directed that the land should be sold, and the proceeds divided equally between their children. One of the tenants for life is dead. The title of the survivor is now held by one of the children entitled to distribution. In consequence of the merger thus brought about, the court directed the sale and distribution, in accordance with the terms of the will. The appellant appeared before the auditor as a claimant, and [644] made a showing of the following facts in support of his claim: In 1882, Francis McClellan and his wife, the life tenants, and seven of their nine children, joined in a mortgage upon this land to the Beaver Valley Building and Loan Association for a loan of twelve hundred dollars. In 1887, in consequence of the non-payment of the installments falling due on the mortgage, the building and loan association determined to collect the debt, and caused a judgment to be entered on the bond accompanying the mortgage and a writ of fi. fa. to be issued. On this writ the land was seized and sold by the sheriff to Barrett for nearly enough to pay the debt. The balance was paid by the defendants in the judgment, and both the judgment on the bond and the mortgage were satisfied of record. Barrett’s title is now held by the claimant, who also holds an assignment from the building and 'loan association, of the satisfied mortgage. What title to the land or its proceeds has he therefore ? This is the only question presented on this record. Under the will of William McClellan, his son, Francis, and his wife took a life estate in the land. This could be bound by judgment or mortgage and sold by the sheriff, but the mode of proceeding in such cases is regulated by the acts of October 13, 1840, and January 24, 1849. The sale made in this case was in utter disregard of these acts, and this court held, in Henry v. McClellan, 146 Pa. 34, that it did not pass the title of the life tenants. As to the children of Francis and Jane McClellan, they took no estate under the will. The direction of the testator to sell the land and divide the proceeds worked a conversion of it from realty to personalty as to them, and a sale of their laud on a writ of fi. fa. against them did not give a title to the purchaser, for they had no interest or estate that was the subject of lien. The mortgage operated as an equitable assignment of the interests of those who signed it, but the mortgage has been fully paid and satisfied. The mortgagees have received every dollar of their debt and interest, and their demand is extinguished. The appellant is therefore in this position, his title derived through Barrett by the sale on the writ of fi. fa. in 1887, is not good against the life estates of Francis McClellan and his wife, because of the neglect to comply with the acts of 1840 and 1849. It is not good against the children of the life tenants, since they had no estate. Their [645] interests were personal and not bound by the lien of the judgment, and could not pass under a sale by the sheriff of the land: Brolasky v. Gally’s Executors, 51 Pa. 509; Bailey v. The Bank, 104 Pa. 425. The mortgage, when in life, was an equitable assignment of the interests of those who executed it, but the mortgage has been paid in fact, and is satisfied on the record. We see no way to relieve against the fatal mistake made in the collection of the debt by the building and loan association. They got their money, but the purchaser at sheriff’s sale, whose money paid them, got absolutely nothing in return. The rule, caveat emptor, applied to him. He bought at a venture and lost. His vendee stands on no better ground. The proceedings should have been upon the mortgage. But, upon the judgment entered upon the bond, the life estate could have been effectually soJ.d by the sheriff, if any attention had been paid to the requirements of the law. The distribution directed by the court below is correct, and the decree is affirmed.