Concurring opinion by
Agnew, J,Having united with the majority in the decision of Hiester v. Green, which was urged earnestly against our conclusion in this case, I am induced to say a few words in explanation of the difference between the cases. The question here arises upon a distribution of the proceeds of the sheriff’s sale of the real estate of John Strauss. The deed from Henry Strauss and wife to Peter Strauss was made in express terms, subject to the payment of four hundred' dollars at the death of Henry Strauss and his wife, referring both to the agreement for the sale of the land, and to a bond of even date with the deed as the evidence of the debt. The deed from Peter to John Strauss was also expressly subject to the payment of the same debt, Peter *357taking as the security of the purchase-money to himself a mortgage, which was recorded before any of the judgments against John Strauss were entered. At the time of the sheriff’s sale both Henry Strauss and his wife were dead; the reservations of the house and one-half of the profit of the land, during their lives, had become extinct, and the estate vested in them by these reservations had therefore expired by its own limitation, leaving nothing but the specific pecuniary charge of $400, then over due.
This statement, eliminating the true state of the case from the not very clear mass of facts reported by the auditor, discovers at once the error into which the court below fell, in assuming that the reservations in the deed constitute an estate and not a lien. This would be true of the special reservations in the land, and had the estate of John Strauss been sold in the lifetime of Henry Strauss or his wife, the conclusions of the court would have been correct as to the money charge, which not being due, would have been governed by Dewait’s Appeal, 8 Harris 236, upon which the learned judge relied. Then here as there the payment of the money would have remained contingent and suspended upon the life in being, and there being no one tp receive it, the court will not, and ought not (as remarked by Lowrie, J.), to undertake to administer.it so as to provide a substitute for the plan devised by the parties.
But as this case stood at the sheriff’s sale, the reservations in the land having expired, it was that of a certain specified sum of money over due and payable, which by the express words of the deed had been distinctly charged upon the land conveyed, constituting a lien according to the terms of the deed, clearly manifesting the intent to charge the land with its payment. It is therefore directly within the distinction taken by the chief justice in the recent case of Hiester v. Green, from Lancaster county : 12 Wright 96.
The question in that case, as stated by him, was “ whether purchase-money reserved in a deed, but not expressly charged upon the land conveyed, is a lien upon that land.” The instrument upon which Hiester and Green arose was a release in consideration merely and no more, of the payment to Cynthia Green yearly and every year, during the continuance of her widowhood, of the sum of one hundred dollars. It was not made subject to the payment, and contained no language whatever indicative of an intent to charge the land with payment. It was a case purely of equitable lien to be inferred only from the fact that the consideration remained unpaid, and was attempted to be supported upon the authority of Nease’s Appeal, 7 Casey 293. But a majority of the court looking upon Nease’s Appeal as a case likely to introduce the long-discarded doctrine of inferential equitable liens, declined to follow it; and the chief justice in *358delivering their opinion placed this doctrine upon what is conceived to be the true Pennsylvania basis, viz., that Such liens must arise from the express charge of the parties and not by implications. The doctrine of equity, that a lien exists for unpaid purchase-money, never was adopted here, but it had always been held, certainly always since Kauffelt v. Brown, 7 S. & R. 64, that if a vendor made a deed, and took no lien by mortgage, judgment, or express charge in the conveyance, no lien for the purchase-money existed. Nease’s Appeal sought to imply an intention to charge from the fact that the price being unpaid, a duty to pay arose in equity. But couched in whatever terms it might be, it was a departure from the Pennsylvania doctrine, that liens are matters of positive and not implied existence, and arise either from the operation of law or the act of the parties. Hiester v. Green brought us back to the rule that all charges upon real estate must appear affirmatively, and in such form as to admit of no doubt of the intent to charge, and therefore of easy determination by those who examine the title. It must be conceded that a rule which is dependent upon mere inference or construction affords no safe guide. Hence Hiester v. Green intended to say, and did expressly rule, that the lien of purchase-money is not to be left to mere equity, or to an implication arising in merely equitable consideration, but must appear in an express form, where the intent to charge is apparent because it is expressed. This affords a safe and easy guide to purchasers who look into the title, and if they do not find this expressed intent, are at once relieved from a mere consideration of equity, and a balancing of results accompanied by more or less- difficulty in determining their true effect.
From these views it follows that the debt of $400 being expressly charged was the first lien, and was payable out of the proceeds of sale, and consequently that, the sale having divested the lien of Peter Strauss’s mortgage, the remainder of the proceeds must be applied to it.
The decree of the Court of Common Pleas is therefore reversed, and it is ordered that the proceeds of the sheriff’s sale be distributed in conformity to these views, and the record is ordered to be remitted with direction to make distribution accordingly, •and the costs of appeal are decreed to be paid by the appellees.