Opinion,
Mr. Justice Clark :The judgment of Ida Schickendantz against her husband, Henry Schickendantz, was entered August 16,1883, for $3,332. Jacob Sansenbacher’s judgment for $626.83, upon which the defendant’s real estate was sold, was entered September 3,1883. The property was purchased by Ida Schickendantz for $1,105, which was insufficient to pay her own judgment. She receipted the sheriff for the amount of the bid less the legal costs of sale, and the sheriff made a special return under the first and second sections of the act of April 20, 1846, P. L. 411. On the reading of the writ in open court Sansenbacher filed exceptions, disputing the right of the purchaser to apply the bid to her judgment, and an auditor was thereupon appointed to distribute the proceeds of the sale, as directed by the above-recited act. The auditor sustained the validity of Mrs. Schiekendantz’s judgment, and dismissed the exceptions, but he found that circumstances attending the various transactions were such that Sansenbacher had probable cause to object to the return, and upon that ground allowed the costs of the audit to be paid out of the fund. The Common Pleas confirmed the report of the auditor, and the error assigned is the allowance of the costs out of the fund.
In Larimer’s App., 22 Pa. 41, it was held that when a sheriff makes a special return in favor of the lien of a purchaser at his sale, in pursuance of the act of April 20, 1846, and exceptions are taken to it by a creditor, which on reference to an auditor are ascertained to be unfounded, the party excepting ought to pay the costs of the audit unless he satisfies the court that he had probable cause to object to the return. “We put the decision,” says this court in the case cited, “ upon the general rule that in such a contest the losing party ought to pay the costs, unless he can show clearly that there were special circum*424stances to create probable cause for disputing his adversary’s claim.”
That such circumstances existed in this case is clear: the auditor states them fully in his report, and it is nob necessary that we should discuss them at length here. Sansenbacher was a judgment creditor, and was interested in the distribution of the money. He had a right in good faith and for a proper purpose to ask for the appointment of an auditor. The first lien creditor was the defendant’s wife : her judgment was entered only a few days before the sale; it was entered by confession Upon a judgment note of very recent date; and, although the parties were in very moderate circumstances, the judgment was for a very large amount, an amount much exceeding the value of the property. The loan from Sansenbacher was made with the knowledge if not at the request of Mrs. Schickendantz, and there was no intimation given of, nor had Sansenbacher any reason to suspect the existence of this large debt. When Sansenbacher left his claim with Mr. Reed for collection, and Mr. Reed notified Shickendantz of the fact, the latter promptly confessed a judgment to his son Henry for $1,700, which judgment was satisfied when that of the mother was entered.
Under these circumstances, certainly Sansenbacher had a right to be present at the audit, to exhibit his claim and to ascertain, if he could, in a legal manner, the merits of Mrs. Schickendantz’s claim ; to inquire whether it was a judgment confessed in good faith, and what payments if any had been made ; and he might, if he chose, call witnesses to that end. This was the purpose of the audit: all judgment or lien creditors were invited to attend, and present their claims; and, acting in good faith and upon probable cause, they had a right to be heard at the expense of the fund.
But if Sansenbacher, by affidavit setting forth specifically material facts in dispute, as provided by the act of 1846, had put himself formally upon the record as a responsible party to a feigned issue to determine those facts, the costs, under the rulings in Black’s App., 106 Pa. 344, would of course follow the verdict. When such an issue of fact is made up, it is like any other issue presented by the pleadings in an action at law, and subject to the same rules of practice as to trial, judgment, and all the incidents thereof. The piro visions of the act of *425April 10, 1848, P. L. 448, known as the sheriff’s interpleader act, providing that the costs of all such proceedings shall be in the discretion of the coart, as remarked by our Brother Stbrrett, who delivered the opinion in Black’s Appeal, have no application whatever to other feigned issues directed by the court for the purpose of determining questions of fact according to the course of the common law. -
Hamnett’s App., 72 Pa. 337, was a ease which arose in the District Court of Allegheny county, upon the distribution of the proceeds of a sheriff’s sale of the real estate of John C. Smith and Adaline Smith, his wife, upon a mortgage. The sheriff made a special return. Hamnett & Sons, who were creditors of the husband, filed exceptions, and an auditor was appointed. At the hearing, the exceptants attempted to show that, although the written title was in the wife’s name, the husband had an equitable interest in the land. The auditor reported against the exceptants, but, upon the ground that they had proceeded upon probable cause, he allowed the costs out of the fund. The exceptants, however, had the report referred back to the auditor, but they gave no further evidence, and the auditor thereupon charged them with the costs of the second audit. The District Court, upon due consideration, decreed that Hamnett & Sons should pay all the costs of the audit, and this court, upon appeal, affirmed the decree. Mr. Justice Sharswood, in the opinion filed, said: “It may be that the costs of the first audit, if the matter had rested there, ought not to have been put upon the appellants, but they renewed their claim with full knowledge of the facts, upon the second audit. It was agreed that the testimony taken upon the first audit should bo received and used on the second. 'Under these circumstances, we think that the order by the court below, that the appellants should pay the costs of the audit, was right.”
This case recognizes the general doctrine set forth in Larimer’s Appeal, supra, and we think that is the true rule.
The decree of the Common Pleas is affirmed, and the appeal dismissed at the cost of the appellant.