The opinion of the court was delivered by
Kennedy, J.
From the facts of the case, as admitted by the parties and reported by the auditor, it appeal’s that John W. Jenkins, from the sale of whose -eal estate the money in the court below was raised, and in regard to he appropriation of which the contest has arisen, became entitled, by descent on the 9th of January, a. d. 1839, on the death of his father, Benjamin Jenkins, to one undivided tenth part of a tract of land, situate in Luzerne county, of which the father died seised and intestate, leaving ten children, to whom it descended equally as tenants in common, under our act of Assembly. On the 22d of July, 1841, John W. Jenkins purchased of Henry Stark, who purchased the same previously at sheriff’s sale, the life-estate of Piulan Wilson, the liusband of his sister Elvina, in another undivided equal tenth part of the said tract of land; and on the 14th of August, a.d. 1841, he purchased the fee-simple estate in the one-half of this latter undivided equal tenth part of tire said tract. And again, on the 5th of October, 1841, he purchased the fee-simple in a third equal undivided tenth part of the said tract of land, from Mahlon Labar, and Adah his wife, another daughter of the said intestate, in whom the same became invested by descent. He had no other interest in the tract than what was thus acquired. On the 11th of March, 1841, Osterhart and Jackson, who assigned to Eckel, Spangler & Koignal, obtained a judgment in the Court of Common Pleas of Luzerne county against John W. Jenkins, which was regularly revived afterwards on the 13th of November, 1843, when the debt and interest due thereon amounted to $245 28. At the time of the sale, the debt, interest, and costs amounted in all to $292 89. On the 22d day of July, 1841, Henry Stark obtained a judgment against John W. Jenkins for $350, besides costs of suit, which was given to secure the payment of the consideration money, which was to be paid for the life-estate. And again on the 18th of November, 1841, Mahlon Labar obtained a judgment in the same court against the same, for $500, besides costs of suit. In 1844, all the interest which John W. Jenkins had in the said tract of land was seized in execution, and sold by virtue of judicial process, sued out on the judgment of Osterhart and Jackson, against him, for $785. This money was brought into the court below by the sheriff for appro[205] priátioh; and for that purpose the court appointed an auditor.' ■ The auditor applied $292 11 of the money, first, to the discharge of the debt,, interest, and costs, in full, due upon the judgment in favour of' Osterhart and Jackson, it being the earliest lien upon that interest in the land, which the debtor derived immediately by descent from his father, the intestate. And the money arising from the sale of it, when apportioned among the several interests vested in the debtor, liable to be sold under execution, being more than sufficient to satisfy it, and leaving a surplus of $21 89 to be applied to the judgment of Henry Stark, which is the next lien in the order of time. To this latter judgment the auditor applied not only these $21 89, but the further sum of $157, being that proportion of the purchase money which was to be regarded as arising from the sale of the fee-simple interest, in the one-half of the equal undivided tenth part of the land vested in the debtor, after deducting therefrom $5 for his charge of auditing. The residue of the purchase money being $309, after deducting therefrom $10 as a further charge by the auditor, he appropriated to the judgment in favour of Mahlon Labar, which was -the third in point of time. The appropriation thus made and reported by the auditor to the court below, the court approved and confirmed, notwithstanding it was excepted to by Charles Dennison, to whom Mahlon Labar had assigned his judgment. It was excepted to, because the whole of the $157 which was considered as arising from the sale of the fee-simple, in the one-half of the equal undivided tenth part of the land, which originally' belonged to Elvina, the sister of the said John W. Jenkins, after deducting therefrom a due proportion of the auditor’s fees, was not appropriated towards the payment of the Labar judgment. Because the $157 was not so appropriated, Dennison has appealed from the decree of the court below.
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The opinion of the court was delivered by
Kennedy, J.
From the facts of the case, as admitted by the parties and reported by the auditor, it appeal’s that John W. Jenkins, from the sale of whose -eal estate the money in the court below was raised, and in regard to he appropriation of which the contest has arisen, became entitled, by descent on the 9th of January, a. d. 1839, on the death of his father, Benjamin Jenkins, to one undivided tenth part of a tract of land, situate in Luzerne county, of which the father died seised and intestate, leaving ten children, to whom it descended equally as tenants in common, under our act of Assembly. On the 22d of July, 1841, John W. Jenkins purchased of Henry Stark, who purchased the same previously at sheriff’s sale, the life-estate of Piulan Wilson, the liusband of his sister Elvina, in another undivided equal tenth part of the said tract of land; and on the 14th of August, a.d. 1841, he purchased the fee-simple estate in the one-half of this latter undivided equal tenth part of tire said tract. And again, on the 5th of October, 1841, he purchased the fee-simple in a third equal undivided tenth part of the said tract of land, from Mahlon Labar, and Adah his wife, another daughter of the said intestate, in whom the same became invested by descent. He had no other interest in the tract than what was thus acquired. On the 11th of March, 1841, Osterhart and Jackson, who assigned to Eckel, Spangler & Koignal, obtained a judgment in the Court of Common Pleas of Luzerne county against John W. Jenkins, which was regularly revived afterwards on the 13th of November, 1843, when the debt and interest due thereon amounted to $245 28. At the time of the sale, the debt, interest, and costs amounted in all to $292 89. On the 22d day of July, 1841, Henry Stark obtained a judgment against John W. Jenkins for $350, besides costs of suit, which was given to secure the payment of the consideration money, which was to be paid for the life-estate. And again on the 18th of November, 1841, Mahlon Labar obtained a judgment in the same court against the same, for $500, besides costs of suit. In 1844, all the interest which John W. Jenkins had in the said tract of land was seized in execution, and sold by virtue of judicial process, sued out on the judgment of Osterhart and Jackson, against him, for $785. This money was brought into the court below by the sheriff for appro[205] priátioh; and for that purpose the court appointed an auditor.' ■ The auditor applied $292 11 of the money, first, to the discharge of the debt,, interest, and costs, in full, due upon the judgment in favour of' Osterhart and Jackson, it being the earliest lien upon that interest in the land, which the debtor derived immediately by descent from his father, the intestate. And the money arising from the sale of it, when apportioned among the several interests vested in the debtor, liable to be sold under execution, being more than sufficient to satisfy it, and leaving a surplus of $21 89 to be applied to the judgment of Henry Stark, which is the next lien in the order of time. To this latter judgment the auditor applied not only these $21 89, but the further sum of $157, being that proportion of the purchase money which was to be regarded as arising from the sale of the fee-simple interest, in the one-half of the equal undivided tenth part of the land vested in the debtor, after deducting therefrom $5 for his charge of auditing. The residue of the purchase money being $309, after deducting therefrom $10 as a further charge by the auditor, he appropriated to the judgment in favour of Mahlon Labar, which was -the third in point of time. The appropriation thus made and reported by the auditor to the court below, the court approved and confirmed, notwithstanding it was excepted to by Charles Dennison, to whom Mahlon Labar had assigned his judgment. It was excepted to, because the whole of the $157 which was considered as arising from the sale of the fee-simple, in the one-half of the equal undivided tenth part of the land, which originally' belonged to Elvina, the sister of the said John W. Jenkins, after deducting therefrom a due proportion of the auditor’s fees, was not appropriated towards the payment of the Labar judgment. Because the $157 was not so appropriated, Dennison has appealed from the decree of the court below.
It was considered by the auditor, and so by the court below, that the half of the equal undivided tenth part of the land in which the debtor had only acquired a life-estate was not sold by the sheriff, and indeed could not be, according to the provisions of the 6th, 7th, and 8th sections of the act of the 13th of October, 1840, entitled “An act relating to Orphans’ Courts, and for other purposes,” and in this we think the auditor and the court were right. But the auditor and the court took up the notion, that although John W. Jenkins had only a life-estate in the undivided tenth, which he purchased of Henry Stark, at the time Stark obtained his judgment, yet upon his purchasing the1 fee in the half of it afterwards, the judgment opened or expanded in regard to its lien, in such a way as to embrace and cover, eo instanti the purchase was made, the fee-simple in which the life interest was [206] merged. As regarded the purchaser, the life-estate may be considered as merged in the fee-simple, which is the greater, but as regards the interests of lien creditors, there is no reason why it should be so; and it would be contrary to the principle which governs and prevails in Pennsylvania in this respect. The rule is, that the judgment only-binds the lands in which the defendant has a freehold interest, either of a legal or equitable character, at the time the judgment is obtained, but does not extend to or embrace subsequent independent interests as they are acquired. This is perfectly manifest, and will be admitted by all, I apprehend, where the subsequent interest is acquired in lands different from that in which the defendant had an interest or life-estate, as in this case, at tire date of the judgment; but in principle, as regards the rights of lien creditors, it can make no material difference whether the estate or interest subsequently acquired, having no connection with the estate, held by the defendant at the time the judgment was obtained, which was perfect and complete according to its nature, be acquired in the same or different lands. It bears no resemblance to the case of a defendant who has an interest in land at the time tire judgment is obtained, under a contract with the owner thereof for the purchase of the fee-simple estate therein. In such case it is clear and incontestably settled, that the judgment will not only bind the interest which the defendant has in the land at the time, but will operate so as to embrace by its lien any future interest or estate which the defendant shall become entitled to, or acquire in pursuance and in fulfilment of the same contract. But it is perfectly clear in the case before us, that Jenkins did not acquire or become entitled afterwards, under the same contract, to the fee in the one-half of the undivided tenth of the land, in which he purchased the life-estate from Henry Stark. He became the owner of it by a subsequent, separate, independent contract, made with a different person altogether. The whole of this doctrine is laid down and fully recognised in the cases of Carkhuff v. Anderson, 3 Bin. 589; Ely v. Beaumont, 5 Serg. & Rawle, 124; Richter v. Selin, 440, 441. See also Colhoun v. Snider, 6 Bin. 147; Lynch v. Dearth, 2 Penna. Rep. 101, and Love v. Jones, 4 Watts, 465. We, therefore, think that the court erred in deciding that the judgment in favour of Henry Stark attached upon the fee-simple, in the half of the undivided tenth purchased afterwards by the defendant in the judgment, so as to entitle him to a receipt of the money arising therefrom upon the sheriff’s sale, in preference to Dennison, the assignee of the judgment entered in favour of Mahlon Labar, after Jenkins had become the purchaser of the fee therein. The money arising from the sale of the fee-simple estate, in the one-half of this undivided tenth part of the land, [207] being, when properly apportioned, $157, ought, after deducting therefrom a due proportion of the expenses of the audit, to have been apportioned between Stark’s judgment- and Labar’s judgment, according to the respective interests or estates covered by the liens of those judgments respectively. Stark’s judgment, covered the life-estate merely, and being prior in time to that of Labar’s, is entitled to have applied towards the payment of it, such proportion of the $157 as is equivalent to the value of the life in this half of the undivided tenth. The rule generally adopted in England, by which this question is determined, is to estimate the life-estate at one-third of the price or value of the fee-simple estate, including the life-estate. We see no objection to adopting this rule in the present case, which would give $52 33, after .deducting a proper proportion of the auditor’s charge therefrom, to the judgment in favour of Henry Stark, and the residue thereof to the judgment in favour of Mahlon Labar. This residue is the most that Dennison can claim upon Labar’s judgment. There is no ground whatever for his claiming, as his counsel has contended, the whole $157, after deducting the auditor’s charge. This would be more unreasonable, if possible, than to give the whole to Stark upon his judgment, because Stark is prior, in point of time, in having acquired a lien for the payment of his debt'upon the life-estate of the debtor, and it would be strange as well as most unjust to deprive him of that right by any subsequent act of the debtor, or subsequent agreement of the debtor with as|hird person.
The decree of the court below must, therefore, be altered and modified so as to comport with the rule laid down above, and direction given. 157 5 3)152 $50 67 21 89 , $72 56 to be applied to Stark’s judgment, after satisfying Osterhaxt and Jackson’s judgment. The residue of the purchase money to be applied to judgment-in favour of Labar.