
    Christian N. Seidle v. John Holmes, Appellant.
    ' Vendor and vendee — Marketable title — Mortgage—Dower—Partition.
    Two brothers, II. and W., wore tenants in common of real estate inherited from their father subject to their mother’s dower interest. W. conveyed all of his interest to H. Subsequently in partition proceedings between H. and the widow, for the purpose of fixing the widow’s dower, the whole of the estate was awarded to II., subject to a certain fixed dower. Prior to the partition proceedings H. had executed a mortgage on the whole premises, and after the partition proceedings he executed a second mortgage on the whole premises. Subsequently he executed a third mortgage to W., the consideration specified being exactly one half of the amount fixed as dower in the partition proceedings. After the death of the widow, a scire facias was issued upon the first mortgage, and at the sale the prop- „ erty was bought by the holder of the second mortgage. Held, that the purchaser took a good marketable title free from any possible claim of W.
    Argued April 20,1898.
    Appeal, No. 132, Jan. T., 1898, by defendant, from order of C. P. Centre County, April T., 1898, No. 190, on case stated.
    Before Sterrett, C. J., Green, McCollum, Dean and Fell, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    The facts appear by the opinion of Love, P. J., which was as follows:
    From the case stated it appears that John Snavely died May 29, 1876, intestate, seized of a tract of land in Walker township, Centre county, containing one hundred and seventy-three acres, more or less, particularly described in' the case stated, leaving to survive him a widow, Rachael Snavely, and two sons, Henry C. Snavely and William Snavely. November 15, 1877, William Snavely and Nancy Ellen, his wife, conveyed all their right, title and interest in and to said premises to Henry C. Snavely, which deed was duly recorded November 16,1877. His interest was the undivided interest inherited from his father. November 15, 1877, Henry C. Snavely executed a mortgage upon the whole of said premises to Andrew Martin to secure a debt of $5,000, which was duly recorded November 16, 1877. On January 29, 1879, amicable proceedings were had in the orphans’ court of Centre county upon the petition of Rachael Snavely and H. C. Snavely for the purpose of fixing the widow’s dower. The dower was fixed at the sum of $4,470, and H. C. Snavely formally accepted the premises at the appraised value thereof, which was decreed by said court to him, his heirs and assigns forever, and entered into a recognizance to pay the widow the annual interest thereon, and at her death to pay the principal of said sum to the person or persons legally entitled thereto. On May 21,1880, H. C. Snavely executed a mortgage to J. H. Lick upon said premises to secure the payment of the sum of $6,000, which was duly recorded the same day. On September 9, 1882, H. C. Snavely executed a third mortgage upon said premises to William Snavely to secure the payment of $2,235, which was duly recorded September 13, 1882.
    Mrs. Rachael Snavely died on August 15, 1895. Then a scire facias was duly issued upon the first of the foregoing mortgages, and judgment duly obtained thereon in favor of Andrew Martin’s executor, who was duly substituted as plaintiff upon the record, viz: John S. Martin, for the sum of $6,665.24, January 7, 1890. Execution process was issued thereon and said premises were duly and regularly sold by the sheriff of Centre county, April 28,1890, to John H. Lick for the price or sum of $6,800, and the sheriff executed and duly acknowledged and delivered his deed to said purchaser for the same. J. H. Lick, said purchaser, has since died, and his title to said premises became duly vested in Christian N. Seidle, the plaintiff. Christian N. Seidle, the plaintiff, February 1, 1898, entered into articles of agreement with John Holmes for the sale of said premises to Holmes for the consideration therein named, and has executed and duly acknowledged a deed therefor, with covenant of general warranty of said premises, and has tendered the same to said Holmes, the defendant. The said defendant declined to receive the same on the ground that the title may not be clear of liens, especially of the lien of the mortgage of September 9, 1882, executed by H. C. Snavely to William Snavely, upon said premises.
    William Snavely and wife, having conveyed all their right and title to the premises to H. C. Snavely by deed duly executed and recorded November 15,1877, had no further interest therein as against a subsequent mortgagee of H. C. Snavely, who, by said conveyance, became the owner of the whole of said premises, as lieir of John Snavely and grantee of William Snavely, subject to life interest of Rachael Snavely to the one third interest therein. And Henry C. Snavely, having executed a mortgage upon the whole of said premises, November 15,1877, to Andrew Martin, which was prior to any other lien upon said premises, and the property being sold upon said first mortgage, after the decease of the widow, the purchaser at said sheriff’s sale, in our opinion, took a good title, free from all incumbrances, and the plaintiff being duly invested with the title possessed, by said sheriff’s sale, has a good and sufficient title to said land, free from incumbrances. We are, therefore, of opinion on the case stated that the judgment should be entered in favor of the plaintiff thereon for costs.
    And now, March 25,1898, judgment is directed to be entered in favor of the plaintiff on the case stated for costs, — to which defendant excepts.
    
      Error assigned was entering judgment for plaintiff.
    
      Harry Keller, for appellant.
    The decision of the court below overlooks the fact that William Snavely’s deed to his brother Henry and the latter’s mortgage to Martin were executed simultaneously, and that Martin, under the circumstances, very probably knew that William had deeded, or intended to deed, only the undivided one third of said premises to his brother; as well as the fact that the purchaser at said sheriff’s sale was John H. Lick, the owner of the second mortgage, which was given after partition proceedings had indicated the real state of affairs, and that he, too, was therefore cognizant of William’s rights and equities, and that the recognizance given to secure his interest in the principal of the widow’s dower had never been paid or satisfied. This being so, then his vendee, the plaintiff in the case stated, was affected by like notice. Plaintiff has no fee: Holt’s App., 98 Pa. 258; Swayne v. Lyon, 67 Pa. 436; Mitchell v. Steinmetz, 97 Pa. 251; Doebler’s App., 64 Pa. 9; Kostenbader v. Spotts, 80 Pa. 430; List v. Rodney, 83 Pa. 483; Jeffries v. Jeffries, 117 Mass. 184; Roberts v. Basseet, 105 Mass. 409; Sibley v. Spring, 28 Am. Dec. 191; Maupin on Marketable Title, sec. 284; Freetly v. Barnhart, 51 Pa. 279.
    
      George B. Woomer and A. 0. Burst, for appellee, were not heard.
    April 20, 1898:
   Per Curiam,

Judgment affirmed at bar.  