The opinion of the court was delivered, January 7th 1868, by
Agnew, J.There has been a conflict of opinion in this court upon the effect of a sheriff’s sale made subject to a mortgage which otherwise would have been discharged by the sale. It would be a work of much labor, and perhaps not very useful, while it would greatly encumber the opinion, to examine all of the decisions made upon this vexed question. A pretty extensive research into them will be found in Zeigler’s Appeal, 11 Casey 182. The conclusion of the judge who delivered the opinion of the court in that case seems to have been that of only two members of the majority, Justice Woodward concurring, that the *53mortgage was rescued from a discharge by the sheriff’s sale under the junior judgment, not by the terms imposed in the sale, but only on the ground that the precedent encumbrance of the widow was an estate and not a lien, leaving the mortgage therefore to stand as the first lien. Schall’s Appeal, 4 Wright 170, affirms the doctrine of Judge Woodward as to tbe nature of the widow’s estate, and although it refers also to Zeigler’s Appeal as requiring the affirmance of the decree, rests on so many grounds it cannot be said that- Zeigler’s Appeal is reaffirmed by it. In this state of the authorities, Mode’s Appeal, 6 W. & S. 280, and Loomis’s Appeal, 10 Harris 312, are not absolutely qualified by Zeigler’s Appeal and Schall’s Appeal. The case of the plaintiff in error is rested on Mode’s and Loomis’s Appeals, which would require a reversal of this judgment were it not for one feature in the special verdict which would seem to relieve the case from these decisions. They do certainly decide that subsequent purchasers, as well as encumbrancers, are not affected by a condition in the sheriff’s sale not apparent in the record — that they have a right to consider the mortgage satisfied by the legal operation of the judicial sale, and would not be affected even bv express notice. Resting on this, Cooper, the terre-tenant, would be unaffected by the sale to Fulton subject to Douglass’s mortgage. But the special verdict finds the fact not only that Fulton bought subject to the mortgage, and in consequence paid less than half of the value of the property, but that both his vendee Carroll, and Cooper, vendee of Carroll, bought with a knowledge of the burthen, and saying they would, retain sufficient of the purchase-money in their hands to pay off the mortgage. Whether they actually did retain so much of the purchase-money is not exactly found by the special verdict, but it is so treated by the court below, in their opinion, and in the argument of the defendant in error here, while no complaint of this is made by the plaintiff in error. We take the fact for granted therefore. It also appears in the verdict that the judgment-creditors prior to the recording of the mortgage made no complaint.
The sale was not opposed, but was confirmed by a sheriff’s deed to Fulton. This case is not, like Mode’s and Loomis’s Appeals, a contest between claimants of the fund produced by the sheriff’s sale, but is a contest solely between the owner of the mortgage and the vendee Of the purchaser at sheriff’s sale; and is therefore just a case when, if the price of the estate belonging to the mortgagee is still in the purchaser’s hands, he is in equity estopped from denying that the sale was made subject to the mortgage. This it seems to me is the true principle, and the only good ground for reconciling the various cases, upon this subject. Having bought the estate with the understanding that he bids so much less for it, and should hold that much in his hands to *54be applied to the excepted mortgage ; it does not lie in Ms mouth at least, to say he takes the land discharged of it, under the operation of the general rule that a judicial sale discharges all encumbrances except those expressly saved by statute. This case, then, being between these parties alonf, and the purchaser having so much of the price of the estate in his hands to be applied to the mortgage, the judgment of the court below was right, and is therefore affirmed.