The opinion of the court (Huston, J. being sick, and absent,) was delivered by
Tod, J.- Therecord presents the following case: — In Septem*63her, 1822, Lenox and Noiris obtained a judgment against Lyman Adams in Scire Facias, upon a mortgage, executed by Adams to them. This mortgage, though executed on the 22d' of December, 1815, was admitted not to have , been recorded until the 25th of June, 1819. In September, 1835, Lenox and Norris brought the present action of Scire Facias, to revive their said judgment, post annum el diem. After there had been judgment by default against Adams, in this second Scire Facias, Willard moved the court to open the judgment, and let him, Willard, into a defence, which was done. The two defendants then, pleaded separately, nul tiel' record, upon which issues were joined. Willard also pleaded a further plea, in which, and in the replication to it, all the facts of this case are contained.
[His Honour here read Willard’s plea, and the plaintiffs’ replication.]
To this replication, the defendant, Willard, demurred, generally, and the plaintiff joined in demurrer. The judgment of the court was in favour of the' plaintiff below, and the defendant took this-writ of error, and now assigns the following, errors:—
[His Honour here read the errors assigned.]
In the second writ of Scire Facias, there was a mistake in reciting the term of the original judgment; which the court, on the request of the plaintiff below, permitted him to amend. This amendment, and the decision of the court upon the plea of mol tiel record, produced a bill of exceptions from Willard’s counsel; but the first error assigned; has not been insisted, upon here in argument, and we dismiss the matter at once; being of opinion, that the eourt clearly had the power to permit the amendment of the Scire Felicias.
The judgment on the first Scire Facias was confessed by-the defendant, Lyman Adams, on the 17th of September, 1822. Th® amount of it was settled at three hundred and thirty-six dollars and sixty-three and a half cents. The mortgage produced was of th® date already mentioned, to secure payment of a bond of nine hundred and eighty-seven dollars and sixty-six cents, conditioned for the payment of four hundred and ninety-three dollars and eighty-three cents. On what day, or from what time interest was to be paid, does not appear. Thus it appears, that the judgment, upon which the land was sold by the sheriff, was subsequent to the recording of the mortgage of the plaintiff below; but the judgment, towards satisfaction of which, the money was applied by the sheriff, was prior to the mortgage. There was judgment entered on the mortgage long prior to the sale by the sheriff, and against that sheriff’s sale there was ho allegation of fraud. As to the distinction which has been made, depending upon the fact, that though the land was actually sold upon a later judgment, yet that the money raised by the sale was appropriated to a judgment entered prior to the recording of the mortgage, it was not much pressed in the ar*64gument, and we shall not rely upon it in the decision. Then, on this general demurrer, the question comes up directly, whether the title of a prior mortgagee, and the lien of his mortgage, are devested and extinguished by a sale of the land under a younger judgment. Perhaps it is a question which now comes for the first time before this court for a direct decision. Yet, I apprehend, that incidentally and indirectly, it has often arisen, and often been decided. I have endeavoured to make a collection of all the cases bearing upon the subject, from Yeates and Binney’s Reports, to Barnet v. Washebaugh, 16 Serg. & Rawle, 410. Most of these cases were cited in the argument.
In Petty v. Beauvarlet, 1 Binn. 97, decided in 1804, there was a rule on the sheriff -to bring money into court, to which he made return, “ that with the money he had paid off several judgments and mortgages upon the premises sold, which beingprior to the judgment in this case, were entitled to prior satisfaction; and, that he had charged a poundage upon the different sums so paid.”
Per Curiam. — “ The construction of that clause, (viz. of the fee bill,) has uniformly allowed to the sheriff poundage upon the payment of all prior judgments and mortgages. He must, therefore, take his costs.”
That this decision was accordant with the sense of,the community and of the bar, is strongly shown by the ease of Browne v. Browne, 1 Broione’s Rep. 97, where some contested items in a sheriff’s bill of costs were referred to two gentlemen among the most practical and experienced of the profession. The sheriff had sold land under the act of assembly of the 11th of Jlpril, 1799, after the execution of a writ of partition. Objection was made to an item of ten dollars and some cents, charged and paid by the sheriff for searches of judgments and mortgages. The, referees approved the charge, and gave these reasons: — '“It appears to us necessary, for the sheriff’s security, to make these searches, as he could not safely distribute the money arising from the sale among the parties without ascertaining what liens are upon the estate. We have no doubt, that the sheriff is entitled to a reasonable and proper allowance for the trouble, risk, and responsibility, in performing this duty; and we can perceive no difference in any of these respects, between such a sale as this, and a sale under judgment and execution. This opinion seems to be sanctioned by the case of Petty v. Beauvarlet, in the Supreme Court, wherein the court allowed poundage to the sheriff on the payment of the judgments and mortgages prior to the judgment and execution on which, the defendant’s land was sold, although the fee bill declares, that no poundage shall be paid for more than the real debt, and also declares it to be illegal for any officer to demand greater fees than are specified in the act of assembly, for any service to be done by him; but does not notice the poundage on payment of such judgments and mortgages prior to the plaintiff who sells.” This award was confirmed by the court, with the *65approbation of all, as far as appears. Eveni though this cáse should not be held as a precedent in law, yet it seems to me, nothing can more .clearly show how notorious is the rule, that in every judicial sale in Pennsylvania, the land goes to the purchaser clear of all liens- of judgments and mortgages, and that out of the purchase money, the sheriff, at his own risk, is to pay off all those liens, according to their priority, insomuch, though the act of assembly, about partition, makes no mention of liens, yet by mere analogy, drawn from the notorious usuage of the commonwealth, an allowance was adjudged, in this case, to the sheriff, for the fees paid for searches of judgments and mortgages, the owners of which might afterwards call upon him for their money. I refer also to Shoemaker v. Houtford, 1 Browne’s Rep. 251.
In the case of The Bank of N. America v. Fitzsimons, 3 Binn. 358, Tilghman, C. J. says, “ it has been a practice of .long standing in this state, where the sheriff sells-land by virtue of an execution to sell it for its full value, and apply the money to the discharge of tho.se liens.” The consequence was, that the sheriff retained the money in his hands till he could ascertain the amount of.old judgments. In Wall v. Lloyd’s Executors, 1 Serg. & Rawle, 320, Tilghman, C. J. says, “ I know, that by the practice of -this court,sheriffs have been allowed poundage out of the money they pay, not only for the satisfaction of the debt of the plaintiff in the execution, but also of other judgments by-which the land was bound.” And in the same case, Yeates, J.’says, “Thiscourt has determined, Petry v. Beauvarlet, 1 Binn. 97, that the construction of the act of assembly of the 25th oí April, 1795, uniformly has been, to allow the sheriff poundage upon all prior judgments and mortgages. And I take it, that the uniform practice for fifty" years past, has been, that the sheriff has been allowed poundage for all debts which he has paid on sales.” The case of Nichols v. Postlethwaite, 3 Dall. 131, would, I apprehend, if any question were yet remaining as to the usage of Pennsylvania, requiring all liens to be paid on sheriffs’ sales, end the doubt. There it was expressly decided, that legacies charged by will, on lands sold by the sheriff on a subsequent judgment, should be paid out of the purchase money, which goes far beyond any payment of a prior mortgage. It is argued, that this is but a Nisi Prius decision, and that the same case is not at all mentioned in Yeates’s Reports. As to authority, the judges appear tó have been Bradford and Shippen; and Judge Yeates reported no decision, made at a circuit where he did not attend. Besides, the decision in Nichols v. Postlethwaite, is cited with express approbation by Duncan, J. in. Gause v. Wiley, 4 Serg. & Rawle, 535, by Tilghman, C. J. in The Commonmealth v. Alexander, 14 Serg. & Rawle, 263, and by the whole court in Barnet v. Washebaugh, 16 Serg. & Rawle, 413, in which the very same point was decided. It appears difficult' to state any reason why prior legacies shall be paid out ,of monies raised by a sheriff’s sale of the land on which *66they are charged, and yet, that prior judgments, or prior mortgages, shall not be paid.
I am not aware of any decision of this court, contradicting, the usage which has been mentioned, and which, I think, there is reason to believe, has existed in this state, beyond the memory of man. The incidental dicta of the judges, however, have varied very much indeed. Judge Yeates seems to have taken the lead in support of what he deemed the ancient usage; and his reasons, which may be found in the case of Keen v. Swaine et al. 3 Yeates, 561, cannot, in my opinion, be easily and satisfactorily answered. Judge Brackenridge was foremost on the other side. On every occasion he seems to have declared his mind unequivocally, that by a sheriff's sale of lands, all prior liens, whether judgments or mortgages, are left wholly untouched.; and be gives his reasons most fully in his Miscellanies, page 258; and from some of the dicta in the books from, the judges incidentally,, it seems probable, that one or more of them were of the same opinion with-Brackenridge, J. But this, it appears to me, could-,not have lasted long.. In the case of Patterson v. Sample, 4 Yeates, 308, there was a mortgage, and the land having been sold under a subsequent judgment, there was an. application by the mortgagee to receive his money from the sheriff. The case was héard before Smith, J., and the only..g.round'upon which that judge seems to have placed the case was, the recording ©f the mortgage deed within six months. The later cases on the subject are still more conclusive. In The Commonwealth v. Alexander, 14 Serg. & Rawle, 257, it was decided, Tilghman, C. J., pronouncing the opinion of the court, not only that a prior judgment was to be paid out of the purchase money accruing from a sheriff’s-sale, but that a judgment still older, and against another person, who-had been-the preceding owner of the land, should also be paid. Then, as to mortgages;’in M'Call v. Lenox, 9 Serg. & Rawle, 302, the land was sold on a judgment. Without ¿ny question, as far as-appears, the money was applied by the sheriff to the satisfaction, of a mortgage, and the residue as far as it would go,, to a second mortgage, both mortgages being prior to the judgment. The last two cases are full of other matter, leading, .as it seems to me, to the same conclusion. That a mortgage is but a record evidence of a, debt, and entitled on this question to no prerogative whatever above a judgment, independent of the express authorities cited, 1 refer to Wentz and Wife v. De Haven, 1 Serg. Rawle, 312, and Porter’s Executor v. Neff, 11 Serg. & Rawle, 223. Other cases'might be cited to the same purport, but it seems to be unnecessary.
Judgment reversed, and judgment for the plaintiffs in error on the demurrer.. /