Tindle's Appeal , 77 Pa. 201 ( 1873 )

Mr. Justice Merque,

delivered the opinion of the court,

The sum hid by De Lange & Co. at the first sale was sufficient to have satisfied all liens prior to the mortgage held by the appellant, and to have paid $2089.20 thereon. They, however, paid to the sheriff $850 only on their bid, and refused to pay the residue. The sheriff thereupon returned the property unsold, and' paid that money into court.

This first sale was made upon a levari facias issued on a judgment, which had been recovered upon a mortgage. The mortgage was the first lien. An alias levari facias was issued, but prior to a sale thereon the property was sold upon a fi. fa. issued upon a judgment which intervened between the first lien mortgage and the mortgage of the appellant. The sum for which the property sold at the second sale, added to the amount then due upon the prior mortgage, was $850 less than the sum bid by De Lange & Co. at the first sale. The effect of the second sale was to discharge the lien of the mortgage held by the appellant, and to pay him thereon, out of the proceeds thereof, $1239.20 only, being $850 less than he would have received in case De Lange & Co. had made their bid good.

After the money made at the second sale had been appropriated, an auditor was appointed to distribute the $850. He gave the money, less the costs of the audit, to the appellant. Upon exceptions filed the court reversed his decision, and decreed that it be paid to the assignee of De Lange & Co. From that decree this appeal was taken.

Thus, it appears, the assignees of De Lange & Co. and the appellant are the only claimants before us. None of the creditors whose lien was prior to that of the appellant is here claiming the fund. They were either paid out of the proceeds of the sale made on the fi. fa. or were otherwise satisfied.

It is very clear, if the second sale had been made upon the same judgment, and the property had brought $850 less than at the first sale, that De Lange & Co, would have been liable, m damages, to that amount.

This sum might have been recovered in the name of the sheriff for the use of the party injured: Adams v. Adams, 4 Watts 160 ; Wright’s Appeal, 1 Casey 374; Forster v. Hayman, 2 Casey 266.

Why shall not De Lange & Co. be chargeable for the like amount as if the resale had been made upon the same judgment? It was made by the same officer. It was in the same public manner. It was not clogged with any terms or conditions that were likely to lower the price. No evidence was given before the auditor of any fact calculated to reduce the price for which the property first sold. We discover nothing connected with the sale tending to produce such a result. Hence the cases of Paul v. Shallcross, 2 Rawle 326, and Banes v. Gordon, 9 Barr 426, are inapplicable.

In an action against a purchaser at sheriff’s sale for the difference between his bid and a resale, he cannot object to the error in the levy describing the lands: Cooper v. Borrall, 10 Barr 401. Nor if he was the plaintiff in the execution upon which the sale was made is he relieved from liability by the fact that the levy did not give any description of the township, county or boundaries: Spang v. Schneider, Id. 193. Nor can a purchaser take advantage of irregularities in the execution under which the sale was made: Emley v. Drum, 12 Casey 123. Nor that the purchaser at the second sale paid no portion of his bid to the sheriff, but gave a credit therefor on his mortgage lien: Forster et al. v. Hayman, supra.

In fact the refusal of De Lange & Co. to pay the amount of their bid damaged the appellant to the amount of $850. It is fair to presume that the resale primá facie showed that sum to be the legal measure of damages. No evidence was given to overcome that presumption. Their assignee has no reason to complain, inasmuch as the damages claimed do not exceed the difference between the first and second sale: Gaskill v. Morris, 7 W. & S. 32.

It is contended, however, that if De Lange & Co. are liable to that amount, yet they are liable by action only, and that the money paid into court cannot be applied to the benefit of the party injured.

It is difficult to assign any substantial reason to sustain this position. Why should the sheriff be compelled to bring suit to recover the money which has already been paid to him in the very transaction in which his right of action accrued, and upon which its foundation must rest? The court is in possession of the fund, and is charged with its distribution. It arose from a sale of real estate on execution. The statutes requires that it be distributed “according to law and equity:” Purd. Dig. 645, pl. 107. Force and effect are to be given to the equity branch of the court’s power: Kelly’s Appeal, 4 Harris 59. The appellee is invoking the aid of those equitable powers.

The court then having jurisdiction over the fund and of the parties, had the. undoubted right to decree the money to the one who “in law and equity” was' entitled thereto. We are clearly satisfied that the appellant is so entitled.

We think, therefore, the learned judge erred in not confirming the report of the auditor, and the decree must be revei’sed.

Decree.reversed, and now it is ordered that the fund in court be distributed to the mortgage of the appellant, and that the record be remitted to the court below; that a decree may be there made according to this opinion, and the costs are ordered to be paid by the appellee.