Sergeant v. Fleckenstein

Opinion by Rice, P. J., By the 8th section of the Act of April 25, 1850, P. L. 569, if not before, an action of covenant would lie against the assignee of a grantee in a deed reserving a ground rent for arrears which accrued before the assignment, and a purchaser at sheriff’s sale was an assignee within the meaning of the rule. But this personal liability was removed by the act of June 12, 1878, P. L. 205, and in Foulke v. Millard, 108 Pa. 230, it was [561] decided tbat a purchaser at sheriff’s sale takes the land free from the lien for arrears, and in consequence a subsequent judgment for the same against the covenantor acquires no lien on the property which will support a sheriff’s sale and carry the title. When, therefore, a purchaser at sheriff’s sale pays the principal and all arrearages that have accrued since his purchase, all liability, so far as he or the land is concerned, is extinguished. Because the acceptance of the tender made by the terre-tenant would have had this effect was the reason, doubtless, why it was refused. Certainly the plaintiff had no reason to fear that it would discharge the original covenantor. The latter’s liability for the rent that accrued before the sheriff’s sale, so far as the proceeds of said sale were insufficient for the payment thereof, would not have been affected. But we do not think the plaintiff could refuse to accept the principal from the terre-tenant and thus indirectly compel him to pay arrearages for which neither he nor the land was liable as the price of freeing the land from the incumbrance to which it was subject. Under a fair construction of the covenant he had a right to free the land from the incumbrance by the payment of the principal and all arrearages for which either he or the land was liable. We decide this case upon the facts set forth in the statement and the affidavit of defense. If the sheriff’s sale was brought about by fraud or collusion, or if the tender was coupled with a demand for the execution of a deed of extinguishment broader in terms than the terre-tenant was entitled to, it does not clearly appear in the pleadings. The only question before us is, whether the tender of the arrears for which this suit was brought was vitiated and rendered ineffectual by the fact that it was coupled with a tender of the principal. We decide that it was not. Appeal dismissed at the costs of the appellant but without prejudice, etc.