The opinion of the court was delivered, by
Sharswood, J.We do not propose to determine the merits of this controversy — the questions of fact and law as discussed and disposed of by the auditor and court below. We fail to see, as the learned judge saw, any waiver by the appellants of their right to have the questions of fact decided in the pending issue in the Common -Pleas by appearing before the auditor. They appeared in the first instance under protest, insisting upon their legal rights. When they appeared again upon a reference back to the auditor, the court had suspended their opinion on the motion in the feigned issue “ until the distribution be made in the assigned estate, if an account shall be filed in a reasonable time.” The issue had been awarded on the petition of the assignee — the present appellee — ■ and when awarded, all proceedings on the judgments were stayed until the feigned issue was decided; so that the hands of the appellants were tied by the orders of the court. Under such circumstances they cannot be held to have waived any legal right by appearing before the auditor. Nor were they bound to demand a new issue when one was already pending, upon which they had succeeded in obtaining a verdict in their favor. It would seem more reasonable to hold that the assignee was precluded from any other course than that which he had himself voluntarily adopted, without at least, with the approbation of the court, having the feigned issue in some way finally disposed of. It seems to us that the court ought not to allow him to withdraw it without the consent of the appellants. The only doubt we have entertained is, whether the appellants had any standing before the auditor, or in this court on appeal. The judgments of the appellants against David A. Smith were entered up in Lehigh county, May 11th 1870. The assignment was dated May 16th 1870. We presume, although the fact is not distinctly stated, that the fund in the hands of the assignee for distribution was the proceeds of real estate in Lehigh county sold by him. The judgments, if they were valid, were and continued to be liens on the lands in the hands of the purchasers. The contest should rather be with them. It is their business to see that these judgments are satisfied or set aside. If Weiler has undertaken to sell for an outside price, clear of all encumbrances, it would be at his risk if the liens were after-wards enforced against the land. Under the circumstances, however, the appellants having appeared before the auditor and claimed payment of the judgments out of this fund, may perhaps be held to have waived their liens as against the purchasers, aad *324we think therefore they ought not to be precluded from the benefit of this appeal.
Decree reversed, report set aside, and record remitted for further proceeding% when the issue pending in the Common Pleas shall be finally decided.