Davis's Estate

Citations

• 47 Pa. Super. 240
• 1911 Pa. Super. LEXIS 142

Syllabus

<p>Orphans’ court sale — Priority of liens — Distribution—Subrogation— Executors and administrators.</p> <p>1. Where a testator dies seized of real estate against- which are the liens of four judgments, the first and second of which are owned by his wife whom he appointed executrix, and the executrix sells under a decree of the orphans’ court a lot of land against which there is a mortgage junior only to her first judgment, and the proceeds are sufficient to pay the first judgment, the mortgage, the second judgment and a part of the third judgment, the widow may apply the proceeds to the payment of the mortgage, and the third judgment without losing her right, when she sells the remainder of the decedent’s real estate, to pay out of the proceeds thereof her two judgments which she had postponed, although such payment will exhaust the fund, and leave nothing for the fourth judgment.</p> <p>2. When there are several distinct parcels of land bound by the same incumbrance, even a judicial sale of one of them will not, necessarily, divest the incumbrance as to the others, unless there exist an equity calling imperatively on the creditor to look to the fund raised by the sale and he refuses to do so, after notice.</p> <p>3. Generally an incumbrancer who enjoys the security of two estates or funds, possesses both the legal and the equitable right to resort to either for payment; and he may, therefore, rightfully forbear to collect his debt from the proceeds of the estate or property first converted.</p> <p>4. A creditor whose judgment is the first lien upon two tracts of land, may permit the purchase money of one to be applied to the payment of junior lien creditors, unless the equitable rights of others are thereby prejudiced, and yet claim his whole debt out of the proceeds of a subsequent sale of the other tract.</p>