The opinion of the court was delivered by
Gibson, C. J.A son who accepts his father5s land at a valuation in the Orphans’ Court, takes it subject to interest on a third of the valuation, where there is a widow, and to payment of the other children’s shares of the principal at her death. In respect of his oWn share, he has nothing to pay or to receive. Being in his own hands, it is paid presently by operation of law, and having no debt due from the land or lien on it, he can have no colour of title to *344any part of the purchase money, or advantage to be derived from a sale on a judgment against himself. Admitting this as an abstract principle, it is said that as the sheriff sold expressly subject to payment of the whole third of the valuation at the widow’s death, the defendant will get the land for less by the value of a child’s share, than he engaged to pay, unless he be liable in this action. But what of that, if he did not engage to pay to the plaintiff? It would be little to the purpose, to shew that the defendant is not entitled to retain, unless it were shewn that the plaintiff is entitled to receive. But he can have no title to receive, unless as a party to the contract supposed to result from the conditions of the sher-r lif’s sale. The sheriff, however, being bound to sell the debtor’s whole interest in the land, can lawfully reserve nothing for him, either in the land, or what is substantially the same, in the price of it; for to sell subject to the payment of money to him, when nothing is, or can be due, would be a fraud on the lien creditors. No one will pretend, that the sheriff can charge the land in the hands of the purchaser, ,in favor of the debtor, and thus in effect abstract so much from the proceeds of the sale. We have then the case of a plaintiff who sues,on an alleged contract, which, by his own shewing, is positively illegal. It is wide of the marl?, to say the acceptance of the deed, estops the defendant from denying the contract. Even had the deed contained that precise affirmation of the fact, which is necessary to every estoppel, the illegality of the contract, would be'an impassible barrier to the action. But the object, as well as the office of the conditions of sale, .was not to fix the extent pf the incumbrance, but to give notice of its existence. Possibly the conditions were thought necessary to signify that the sheriff would sell subject to this incumbrance under a mistaken belief that he had power to sell clear of it. But nothing more than the naked fact could have been intended to be signified; for no one can suspect a design to reserve more than should be found actually charged on the land by the law. ’ How then can the plaintiff recover against the true intent of the parties, what was not meant to be reserved for him? Having notice of the existence of the incum-brance, the purchaser was bound to judge from the record, of its extent, the sheriff being neither competent to determine that matter, nor responsible for the truth of his information.. The purchaser certainly could not have compelled him to refund the difference, had the amount of the incumbrance proved to be greater than it was represented to be. But even to give notice of incum-brances, which appear of record, is no part of the sheriff’s business; and as to the office of conditions to indicate that the sale was to be subject to this particular charge, that matter was fixed by the law, instead of being dependent on the will of any one. It *345seems to me, therefore, it would be fraught with mischief to suffer the officer to vary the rights or theresponsibilities of the parties, by an officious act.
It has been suggested that the plaintiff may recover, if not for his own benefit, at least for that of the creditors. But the purchaser did not contract with him for the benefit of any one,"and beside, the process of collecting the proceeds in the name of any one else than the sheriff, is certainly an unusual one. • And it seems to me that even the creditors have no title to the money, either legal or equitable. The interest sought to be recovered, was not bound by judgment, because it had no existence as a part of the lands, having been created, if at all, by the conditions óf a sale which worked an extinguishment of the liens. Neither is it part of the purchase money; for that, by the exigence of the writ, is to be brought into court, and it consequently consists of the sum for which the premises have been sold subject to, or free-of, incumbrances. The purchaser having taken on himself the risk of the incumbrances which are not to be extinguished by the purchase money, is not to be affected by them in relation to the other lien creditors, let the event turn out as it may. But, it is said, he has no conscionable right to retain, inasmuch as more would have been produced by the sale had the incumbrance been truly represented. Although the fact may be so, it cannot be affirmed with certainty. Every man is presumed to know the law, and the bidders may have ascertained the sheriff’s mistake previous to the sale. Even that counsel was employed to inspect the record’, is far from improbable. But were the fact clearly otherwise, it would be without weight.- It will not be pretended that a judicial sale, subject to a mortgage which had in fact been extinguished, would give the mortgagee a right to recover the money over again, or áuthorize the sheriff to charge the difference as purchase money; and, in principle, what is the case before us but just that? Such a charge would be inconsistent with the express terms of the-sale. • On the other hand, were the sheriff to represent an incumbrance to be less than the sum actually due, no one will pretend that the creditors would be bound to make up the difference; and the plainest principles of justice require that the chances of loss or gain, in this respect, should be equal. In its very essence the contract has respect to that contingency; and the only remedy for a misrepresentation not fraudulent, but affecting the rights of either party, is an application to set aside the sale. In the case at bar, the creditors having suffered the contract to be consummated by acknowledgment of the deed, are concluded by its terms. '
Judgment of the Common Pleas reversed, and judgment for the defendant below.