property, including the premises in question, to certain trustees for the benefit of the holders of the certificates, conditioned for the payment of the principal and interest thereon. Most of these certificates afterwards came to the hands of Henry Chester, the residue being held by certain other parties. In 1844 Chester recovered judgment against the corporation for the interest due on the certificates held by him, and under an execution issued thereon, a part of the mortgaged premises was sold, the proceeds constituting the fund now in controversy. After the execution of the mortgage, and before the recovery of Chester's judgment, certain other judgments constituting liens upon the premises were recovered by the West Branch Bank against the Williamsport etc. R. R. Co., and the bank now claimed the fund by virtue of those judgments, insisting that the sale was merely of the equity of redemption, that the mortgage remained a lien upon the land and was not transferred to the proceeds, and that the judgments in favor of the bank are prior liens to Chester's judgment. On the other hand, Chester and the other holders of the loan certificates claimed the money under the mortgage, insisting that the lien thereof was transferred, by the execution sale, from the land to the proceeds. The fund was not sufficient to pay any of the claims in full. Woodward, P., in the court below, delivered an elaborate opinion, maintaining the following propositions: 1. That, after considerable discus. sion, the law is settled in Pennsylvania that a sheriff's sale of mortgaged premises upon a judgment constituting a junior lien to the mortgage transferred, not merely the equity of redemption, but the whole estate to the purchaser, and divested the lien of the mortgage from the land and cast it upon the proceeds: Willard v. Norris, 2 Rawle, 56; Presbyterian Corporation v. Wallace, 3 Id. 194. 2. That notwithstanding the act of April 6, 1830, declaring that a mortgage which is prior to all other liens upon the property shall not be "destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas," such prior mortgage lien is nevertheless diverted by a sale on venditioni exponas for the same debt: Pierce v. Potter, 7 Watts, 477; Berger v. Hiester, 6 Whart. 214; McCall v. Lennox, 9 Serg. & R. 303; and that, notwithstanding the dictum of Mr. Justice Duncan in the latter case, an execution sale for a single installment of the mortgage debt will have the same effect: Donley v. Hays, 17 Id. 400; Cronister v. Weise, 8 Watts, 215. 3. That the interest of a mortgage debt, especially where there is an express stipulation for interest, as in

this case, is a part of the substance of the mortgage debt, and belongs to it, not by tacking, nor as an incident, but is pro tanto the debt itself, citing Coote on Mort. 518, and Gladwin v. Hitchman, 2 Vern. 135, as to the right to foreclose for a default in the payment of an installment of interest. 4. That, though the judgment for the interest in this case was another security for part of the mortgage debt, and was a lien only from the time of its entry, and could not be tacked to the mortgage to the prejudice of intervening liens, yet the judgment and the sale thereunder did not impair the lien of the mortgage or affect it in any way except to transfer it from the land to the proceeds; that the judgment and sale brought the money into court, but the mortgage lien attended it, and though Chester could not claim the money under his judgment as against the prior judgments, yet by virtue of the mortgage lien, which was anterior to all the other incumbrances, he and the other holders of the loan certificates were entitled to the fund. Decree accordingly, and the bank appealed.

Armstrong, for the appellant.

Maynard and Watson, for the appellees.

By Court, BELL, J. Although the question is presented in an aspect somewhat new, its solution depends upon principles more than once recognized and enforced by this court. These are so broadly stated and applied in the opinion of Mr. President Woodward, that but little more is called for, than to refer to Berger v. Hiester, 6 Whart. 214, as a pregnant instance, in which a judicial sale under a judgment recovered upon one of several bonds secured by mortgage, was held to divest its lien, though some of the bonds were not then due. This case proves that a mortgage may be swept away, not only by a sale for part of the debt secured, the whole being due, but even when a portion of it is not then payable. It therefore very closely resembles the present case, the only distinction being, that there the sum recovered was part of the principal, here it is the interest. But it is very clearly shown, by the reasoning of the judge below, that, under the terms of the mortgage in question, this distinction ought to work no difference in the result.

It may be added, as of some weight in the argument, that were the certificate holders excluded from this remedy, they would probably be without one for the recovery of interest, as the mere equity of redemption may be valueless. This consequence ought not to be hazarded in view of the many contracts

of this nature, produced within a few years past, by which the payment of interest is as solemnly guaranteed as the discharge of the principal, and without which, it may fairly be concluded, loans could not have been effected.

It is objected that the interests of certificate holders, other than those who sue, may all be jeoparded by the proceedings. The answer is, that they stand in no worse position than do the different assignees of bonds in the ordinary case of a mortgage, made to secure the payment of several obligations. As to the sale of the mortgaged premises, each is bound to take care of himself; and the court, in distributing the proceeds, will see that all entitled to the fund are brought in. In practice it can very seldom happen that notice of the proceeding will not reach all having an interest.

Judgment affirmed.

JUDICIAL SALE DIVESTS MORTGAGE LIENS, and other liens, in Pennsylvania, and transfers the same to the proceeds, when: See McLanahan v. Wyant, 21 Am. Dec. 363; Luce v. Snively, 28 Id. 725; Roberts v. Williams, 34 Id. 549; Mohler's Appeal, 47 Id. 413, and cases cited in the notes to those decisions. See also Commercial Bank v. Yazoo Co., 38 Id. 447; Andrews v. Doe, Id. 450, and notes. Under the act of 1830, a sale on a junior judgment divests a mortgage lien only when the mortgage is not prior to all other liens, or where the judgment is for part of the mortgage debt: Walker's Appeal, 1 Grant, Cas. 436. But where the sale is made on a judgment for a part or all of the mortgage debt, or for interest thereon, the mortgage lien is divested, notwithstanding that statute: Commonwealth v. Wilson, 34 Id. 67. A sale for interest on the mortgage debt, before the principal is due, is substantially a sale on the mort. gage: Mendenhall v. West Chester etc. R. R. Co., reported in a note to Bradley v. Chester Valley etc. R. R. Co., 36 Id. 149; all citing the principal case. That a mortgagee can not extinguish the equity of redemption in the mortgaged lands by a sale under a judgment for the mortgage debt is held in Powell v. Williams, 48 Am. Dec. 105; and see the note to that case.

THAT WHERE SEVERAL MORTGAGES ARE MADE AT SAME TIME FOR PARTS OF SAME DEBT, and are assigned at different times to different persons, and the premises are afterwards sold on execution, the assignees share pro rata in the proceeds, is a point upon which the principal case is cited, as recognizing Donley v. Hays, 17 Serg. & R. 400, in Perry's Appeal, 22 Pa. St. 45. See Parker v. Mercer, 38 Am. Dec. 438, and Cage v. Iler, 43 Id. 521, and notes.

INTEREST IS A SUBSTANTIVE Part of the Debt, when it is comprehended in the express terms of the contract: Hummel v. Brown, 24 Pa. St. 313, citing the principal case. As to when a judgment lien extends to and covers interest as well as principal, and when not, see Sims v. Campbell, 16 Am. Dec. 597; Mower v. Kip, 29 Id. 748, and cases cited in note.

ROBB V. MANN.

[11 PENNSYLVANIA STATE, 300.]

PURCHASER AT ADMINISTRATOR'S SALE IS DEEMED OWNER OF PREMISES BEFORE CONFIRMATION and delivery of possession, in equity, and must bear any loss that may happen to the premises.

REMOVAL OF FIXTURES FROM LAND PURCHASED AT ADMINISTRATOR'S SALE BEFORE CONFIRMATION and delivery of possession, by a stranger under claim of right, is no defense to an action for the purchase money, and the purchaser's remedy is by an action on the case against the person com. mitting the injury.

ADMINISTRATOR Making SALE OF LAND IS MERE OFFICER OF COURT, and has no possession, actual or legal, of the premises, which is in the heirs. CAVEAT EMPTOR IS THE RULE OF ADMINISTRATION SALES as well as other judicial sales.

ADMINISTRATOR FAILING TO EXECUTE DEED ON DAY SPECIFIED in the conditions of an administration sale, owing to objections interposed by creditors, affords the purchaser no ground of rescission, for time is not of the essence of the contract.

PROMISE BY ADMINISTRATOR TO PURCHASER TO HAVE FIXTURES RETURNED which have been removed by a stranger from land purchased at an administration sale, after the sale and before conveyance, does not bind the estate, nor does it bind the administrator, where the only consideration for it is a payment of part of the purchase money.

ASSUMPSIT. The principal facts, as well as the material rulings of the court below, are stated in the opinion. Under the instructions given, the defendant had a verdict and judgment, and the plaintiff brought error.

Johnson and Armstrong, for the plaintiff in error.

Bancroft, contra.

By Court, ROGERS, J. This is an action of assumpsit to recover the amount due on the first installment of the purchase money of a farm, sold by the plaintiff as an administrator, pursuant to an order of the orphans' court, and purchased by the defendant. It is not disputed that the sale was made and confirmed by the court, and that possession was taken of the premises on the third of April, 1846, two days after the time when the possession was to have been delivered. It appears that possession was not delivered because Jacob Hill, a former owner, who was entitled to retain it, did so until that time, and because objections were made to the sale by some of the creditors, which were afterwards withdrawn. It is in evidence that between the time of the sale, viz., the thirty-first of January, 1846, and the time when the plaintiff was to deliver possession to the defendant, viz., the first of April, 1846, certain

machinery and apparatus, part of a distillery on the premises, were taken away by John F. Manville, as the agent of Jacok Hill, former owner, on the claim of right to the same. And this raises the principal point in the cause. The defendant insists, and so the court rule, this is a defense to the payment of the purchase money to the extent of the value of the property taken away. The point assumes that, by the sale, the property considered for this part of the case in the light of a fixture and part of the realty, passed to the purchaser in the same manner, and to the same extent as the farm itself, to which it was appurtenant. The first question, which solves the whole difficulty, is, to whom the property belonged in the intermediate time between the sale and its confirmation by the orphans' court, or, in other words, was it the property of the administrator or heirs, or the property of the purchaser? For the loss; of whatever kind, and by whom caused, must be borne by the owner. Had there been a private sale, it would hardly be considered as an open question; for if there be any point settled it is that when a contract is made for the sale of lands, equity considers the vendee as the purchaser of the estate sold, and the purchaser as a trustee to the vendor for the purchase money. So much is the vendee considered in contemplation of equity, as actually seised of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance; and he will be entitled to any benefit which may accrue to it in the interval. And the reason assigned is, that by the contract he is the owner of the premises to every intent and purpose in equity: Richter v. Selin, 8 Serg. & R. 440; Sugd. on Vend., c. 4, pp. 131, 132, Am. ed. This principle, which is indisputable, would seem decisive of the question, unless a distinction can be taken between a private and a judicial sale.

But no such distinction has been recognized; rather the reverse has been ruled. Thus in Stoever v. Rice, 3 Whart. 25 [31 Am. Dec. 495], a sale by a sheriff is said to be attended with the ordinary incidents of a sale by an individual. And in Bashore v. Whisler, 3 Watts, 494, it is said, that a sale by an administrator under an order of the orphans' court for payment of debts, is a judicial sale, and that the principles which govern the one are applicable to the other. Now, a purchaser at a sheriff's sale, as is ruled in Morrison v. Wurtz, 7 Id. 437, before his deed has been acknowledged, has an inceptive interest in the land by the contract, which may be bound by a judgment, and which, when perfected by payment, and a conveyance, gives the