Day v. Lowrie

The opinion of the Court was delivered by Sergeant, J. This case is in principle ruled by the cases of Purviance v. Lemmon, 16 Serg. & Rawle 292, and Chew v. Mathers’ executors, 1 Penns. Rep. 474. The vendor articles to sell the _land, but retains the legal estate until the purchase-money is paid, for which he takes a judgment bond. The vendee goes into possession, and makes default in payment. The vendor enters up his judgment, sells the land on an execution and purchases it for less than the purchase-money due. By so doing the contract is rescinded and the articles of agreement are extinguished; the consequence of which, is, that the vendee’s equitable*bi-ll-is gone, the vendor taking back the land as of his former estate, and losing all further remedy for the residue of the purchase-money, with the extinction of the equitable estate, of the vendee, his intervening incumbrances are also defeated. Had- a third person purchased, the prior judgment creditors of the vendee' would -have been entitled to payment from the proceeds of the sale, because the equitable estate would still subsist and remain liable to the original vendor in the hands of the new purchaser. But if the intervening creditors of the vendee now take the money, the vendor must entirely lose his purchase-money, or so much of it as they take; for he has no further resort against the vendee or his representatives, according to the cases above mentioned. For these reasons, we are of opinion that the court below erred in entering judgment on the case stated for the plaintiff and that judgment should ■ have been rendered for the defendants. Judgment reversed, and judgment for plaintiffs helow.