Opinion by
Mr. Justice Green,The numerous assignments of error in this case have practically resolved themselves into two. The first of them raises *274the question of surcharging the accountant with the purchase money due upon the article of agreement for the sale of the twenty-acre lot to Patterson. As to this claim, which was allowed by the auditor but disallowed by the court, we are of opinion that the ruling of the court was correct. In the first place, it was the fact, no matter how resulting, that the mortgage of the life insurance company for $3,400 was a continuing lien upon the twenty acres, and therefore the executor could not have compelled payment of the purchase money if he had commenced legal proceedings to collect it, because he could never give a clear title to the purchaser. No release of the lien of the mortgage was ever given or tendered, and the purchaser could not take title except subject to that lien. In the next place, it is not shown by testimony that the purchaser could have paid the purchase money, but from the facts in evidence it is quite clear that he was financially unable to pajr it. A legal proceeding therefore upon the agreement, while it would probably have been unsuccessful in the collection of the money, would have occasioned a bill of costs for which the decedent’s estate would have been liable at least to some extent. In the third place, the accountant never received any of the purchase money in point of fact, and it not being shown that he could have collected it by means of legal proceedings, he ought not to be surcharged. In the fourth place, the title to the twenty acres still remains in the estate of the deceased, and therefore has become vested in the-present appellant who now holds it. It cannot therefore be said that he has suffered a loss by reason of the failure of the accountant to collect the purchase money under the agreement, and in these circumstances it seems to us that, when the court below directed the accountant to assign the contract to the appellant, this was in reality the proper and most equitable thing to do.
The second question raised by the assignments affects the right of J. B. Tenan to have any distribution of the fund on account of his ownership of the one half of the mortgage given by the decedent to the Mutual Life Insurance Company of New York. There is no question as to his ownership of this one-half interest, and there is also no question as to the fact that it has never been actually paid. The objection to any payment being allowed now is, that it has been technically paid by *275reason of the fact that a scire facias was sued out on the mortgage, and a judgment entered thereon for want of an affidavit of defense by the executor, a levari facias was issued thereon, and a sheriff’s sale was had at which J. B. Tenan was the purchaser, to whom a sheriff’s deed was delivered, and a lien creditor’s receipt for the purchase money was given to the sheriff for the deed. This, it is claimed with the greatest persistency, was actual payment so far as J. B. Tenan was concerned. The reply made to this claim by the court below was that subsequently on appeal to this Court the judgment in a scire facias proceeding was reversed on the ground that it was an absolutely void judgment and all proceedings under it were a nullity. The sheriff’s sale under the judgment was a void sale and the deed to the purchaser was a void deed. It not only conferred no title, it -was a legal nullity. In other words, the judgment and all the subsequent proceedings were the same as if they had never taken place; they had no existence in any manner which the law could or would recognize. This is a very different thing from the judicial sale and purchase of a worthless title. Had it been of that character only the purchaser would have lost his debt and that, without any regrets on the part of any court Laving to deal with the matter, because the proceeding was a trick supposed to be smart, in order to gel; the title to the property for a small part of its value. The scire facias was issued against the executor of the mortgagor and the terretenant, but was not served on the terre-tenant, and the executor was the brother of the use plaintiff, and doubtless in collusion with him to bring about the anticipated result. But the terretenant, the present appellant, got wind of it in time to take an appeal, and finding that he also had opportunity of availing himself of a technical defense took advantage of his opportunity and defeated the judgment and all its belongings. In this state of affairs the situation was, that the scire facias on the mortgage was still pending, shorn of its judgment with all its consequences. The plaintiff could then proceed to trial on his scire facias if he so chose. In the mean while the proceedings on the audit upon the executor’s account were going on. They had reached the point of a hearing before the court on exceptions to the auditor’s report. The holder of the mortgage had made no claim to any part of the fund, because he was proceed*276ing on his mortgage, and he could not do' that and assert a claim upon the fund which was the proceeds of a voluntary sale of the land by the executor to the appellant. The holder of the mortgage had a perfect legal right to do this if he chose, and having elected to adopt this course he properly abstained from any claim upon the fund for distribution. But the learned court below, perhaps somewhat wearied with the persistency of this constant and trifling litigation which had already knocked five times at the door of the Supreme Court, seeing a shorter and quite as desirable way of ending the interminable struggle, suggested to the respective counsel of the litigants that the claim of the holder of the mortgage might be disposed of in the present proceeding, and expressed a willingness to adopt that method by either sending the case back to the auditor or by the court passing upon its merits as the parties might desire. To this suggestion the counsel for the mortgage creditor replied that he did not want the case sent back to the auditor, and the counsel for the appellant, saying nothing about sending it back, insisted that the claim was already paid by the decree of distribution made at the time of the sheriff’s sale. The court thereupon proceeded to dispose of the claim. Just here it is proper that we should say that the discourteous remarks made by counsel for the appellant respecting the action of the court below on this subject were entirely uncalled for and altogether unjust. The orphans’ cburt is the sole repository of the whole power of the commonwealth for the settlement of dead men’s estates, and is not the servant of an auditor nor of counsel when exercising that function. It has very broad power and great discretion. Beyond all question it had, in tins instance, the power and the undoubted right to do just what it did do. The question before it was a question arising upon the distribution of the decedent’s estate. With the consent of the plaintiff in the scire facias it could entertain and decide upon the plaintiff’s claim. That consent was given and the claim was thereupon heard. The facts had already been reported by the auditor and the amount of the claim fixed. The only contention against the allowance was that it had been technically paid by the judgment and sale and subsequent proceedings in the scire facias on the mortgage. In our opinion that contention is altogether untenable for the very satisfactoiy reasons given by the court *277below, and which have been already stated. The judgment deed and receipt to the sheriff were all legal nullities and possessed no efficacy whatever. The amount of the plaintiff’s claim as part owner of the mortgage was ascertained, and, if he chose, he could abandon his proceeding on the scire facias and prefer it in the orphans’ court. He did this, and it was lawfully entertained and correctly disposed of. The assignments of error are all dismissed.
The decree of the court below is affirmed at the cost of the appellant, and record remitted.