Barnitz v. Smith

The opinion of the Court was delivered by Huston, J. The appropriation of money raised from land by sale on execution has been a subject of frequent discussion in our courts—and not in cases yet settled—considering a lien to be a right to receive a sum of money from the proceeds of a tract of land when sold, and considering the different modes in which such liens may be created—as by Act of Assembly, by acts or decisions of courts, or by the agreements of the parties—and also that several liens, consecutive in point of time and date, may bind the same land, it is not to be wondered at that apparent difficulties occur. Expressions used by a judge, or solemn decisions by courts on other questions, totally distinct from lien, were in contest, and are brought in to perplex a court. The decision, in ordinary cases, that articles of agreement for the sale of land are merged in a deed executed, is urged, forgetful that if the articles contain provisions for something more than the execution of a deed, that may remain in full force after a conveyance has been executed and accepted. This doctrine, however, has no application to this case; for the agreement that the balance of the purchase money shall be a lien on the land till the whole amount is paid is in the deed as well as in the conditions of sale. It would be useless to these parties, and improper, to pretend to lay down what would be the law in all cases of conflicting liens. That would be an attempt to decide cases not before us, in which we have not heard the parties or their counsel. It will, perhaps, be found that the present has already been decided by this court. Stewartson v. Watts, 8 Watts 396. Stewartson conveyed to his vendee and heirs, &c., to have and to hold, &c., in usual form, subject to the payment of the said sum of $2804.20, intended to be secured by mortgage. After several transfers, the vendee in possession became indebted, and the land was sold by the sheriff for his debts. Stewartson, the original vendor, brought ejectment, and this court held that he could not recover, because he might have claimed and taken his debt out of the proceeds of the sheriff’s sale. A case as full to the point is found in 2 Watts IQ, Episcopal Academy v. Freke. The Academy sold by articles in 1824; afterwards the Academy, in 1827, executed a deed in fee simple, but containing the clause “ subject to the payment of the balance of the purchase money,” and same day took a mortgage for the [146] purchase money, but which was not recorded until after others had obtained judgment against the mortgagor. The land was sold by the sheriff. This court, on appeal, decreed the money to the Academy. The mortgage was considered as a means to compel payment of the money. “ The lien of the conveyance was never suspended or interrupted, and the trustees of the Academy are entitled to be paid first.” The deed in that case was never recorded. These cases, and at least one other to the same effect, must govern the case before us. , Shearer when selling, and Smith when purchasing, agreed that the purchase money should remain a lien on the land. The creditors of Smith have no right to object to such agreement; but for it, Smith never would have had any interest in this land, nor his creditors any claim to the proceeds of what would never have been his; Smith could not have sold it otherwise than subject to the balance of purchase money; his creditors could only sell it so subject. But land subject to a lien (unless some indefinite continuing lien), when sold on execution, discharges the lien which comes in for the purchase money. The decree of the court as to interest, while this contest was going on, is not complained of, and was probably correct. This court order and decree the money in court to be paid to discharge the purchase money due on the bonds given to Martin Shearer for the balance of the purchase money—suspending interest while the money laid dead in court— and the balance, if any, to Jacob Barnitz; and we reverse the decree of the Court of Common Pleas of York county. It may be proper to state, that the negative testimony of the officer before whom the deed from Shearer to Smith was acknowledged, that “ I did,” in answer to the question “ whether he took the acknowledgment,” and to the question, “ do you recollect was the written line above the signature of Martin Shearer ‘ subject to the proviso or. condition of sale that there shall be a lien on the land until the whole amount is paid by Michael Smith, the purchaser’ in the deed at the time of taking the acknowledgment or not ?” Answer: “ I don’t recollect that it wasI say that no regard was paid to this by this court. It is too indefinite—it, in plain English, proves nothing to the purpose. As Martin Shearer sold the land in question as the representative of Anthony Willet, and held these bonds in such right, his assignees will inquire whether this money goes to them at all, or if it does, whether it goes to them as trustees for the creditors or heirs of Willet, or for the creditors of Shearer. Decree reversed, and money decreed to the person entitled to the bonds and judgments given by Michael Smith to Martin Shearer, administrator, &c., of A. Willet.