delivered the opinion of the court, January 2d 1883.
On the 15th of May 1876, Mathias S. Bowser entered into a contract with H. H. Dick, by which he, Bowser, agreed to sell, and upon payment of the purchase money, to make, or cause to be made, a good and sufficient deed in fee simple to Dick, for a certain tract of land situated in Cherry Hill township, Indiana county.
Dick, on the other hand, agreed to pay to Bowser, as a full consideration for said land, the sum of eight thousand one hundred and sixty-five dollars, in certain payments running to April 1st 1883, as, in said contract is set forth. Two thousand dollars of this purchase money were paid in hand, and the balance was put into two bonds; one executed by the vendee alone for two thousand eight hundred and fifty-seven dollars, the other for three thousand three hundred and eight dollars, by himself and William Dick as surety. The first of these was entered to June Term 1876, in Indiana county, and the second in Butler county on the 16th of May of the same-year. It may now be observed, in passing, that upon default in the payment of this money, Bowser had three remedies: Ejectment, covenant on the agreement, or execution on the judgments as above stated. If it be said that he could not. pursue the first and second of these remedies, for that he himself had but an equitable title under articles of agreement with William Houk, we answer, under ordinary circumstances this might be true, and the objection, if there were any thing in it, would apply as well to the third remedy, as to the others. But, in fact, it applies to neither, for the legal title was potentially, if not actually, in him. He could have it by paying the purchase money to Honk, and his agreement with Dick was a result of the assumption that the legal title was already vested in him, or would be on the fulfillment of Dick’s covenants. He thus put himself in the position of a trustee of the legal title for his vendee; since through him, and through no one else, the deed must come to Dick. Therefore, were it of any special importance to the disposition of this case, we might treat him as the owner of the fee.
It further appears, that one of the payments of the Indiana bond, which fell due on the first of April 1877, not having been paid, Bowser caused an execution to be issued, and a levy to be made on the property, which in due course was exposed to sale and sold to one John McGuire, for the sum of seven thousand seven hundred and fifty dollars, an amount, if the *470statements of counsel have given us the correct sum, quite sufficient to pay off the purchase money in full.
Under these circumstances we are inclined to think the defendants were entitled to a satisfaction of both the purchase-money judgments, not only that in Indiana, but also that in Butler county.
The rule of law, as settled by the court in this case of Love v. Jones, 4 Watts 465, and in many other cases, the last of which is that of McKay v. Orr, not yet reported, is this: When a vendor institutes an action founded upon a contract for the sale of land, and recovers a judgment for the purchase money, or what is the same thing, takes and enters up a judgment bond or note therefor, and then proceeds by execution to sell the land, he must be considered as selling all the estate in the land, whatever that may be, which he agreed to sell to the defendant. Furthermore, the vendor’s lien on the property thus sold, is prior to all others, and must be first satisfied out of the proceeds of the sheriff’s sale.
Under this statement of the rule governing cases of this kind, how, we ask, is it possible for the vendor to compel the specific execution of a contract which he, by his own act, has abrogated? As was said by Woodward, Justice, in Graff v. Kelly, 7 Wr. 453 : “ The law of the land entered into and became part of the contract, hence it may be said that the vendee is living up to his contract, when ho insists that it is extinguished by the acts of the vendor.” Bowser has by his own act put it entirely out of his power to comply with his part of the agreement. His right together with Dick’s passed to the purchaser at the sheriff’s sale. He has no longer any right to demand a deed from Honk, how then is he to make one to Dick as he agreed to do? Or is Dick to pay his purchase money and get nothing for it? Not so. The rule of law as well as the dictates of justice forbid such a solution of the question. But why, if,.as is said to be the fact, this property sold for enough to pay off the entire amount of the purchase-money, does Bowser yet claim the Butler county judgment? I find no answer to this question in the paper book. Perhaps the plaintiff thought that his only lien was that of his Indiana county judgment, hence, claimed only that much of the proceeds of the sheriff’s sale. But if so, ho made a serious mistake, for notwithstanding the judgments, his lien as vendor continued and was, first of all, entitled to the proceeds arising from the sheriff’s sale.
If, however, he did make such a mistake, it was his own, not Dick’s, and he must abide by it and bear the loss.
The judgment is affirmed.