
    Foster and another against Foust.
    In.Error.
    ERROR tp the Common Pleas of Crawford county.
    
      Foúst brought an action óf covenant against S. B. Foster .and A. W. Foster for the recovery of damages in consequence of the lien of. a third person, on two tracts of land sold by the Fosters to Foust. Articles of agreement between the plaintiff and defendant were made for the sale of these lands on the 28th September, 1803. The purchase money was 4000 dollars : one-third whereof was to be paid in May, 1804; at which time the plaintiff was to receive a conveyance and possession. 70 Dollars were paid on' the day of the execution of the articles, and 1263 dollars 33 Cents, on' the 15th November, 1803 : all which were applied towards the discharge of liens existing at the date of the articles. Those liens were equal to the whole amount of the purchase money,, and something more. In May, 1804, the plaintiff entered into possession: and on the 2d June, 1804,. the Fosters gave him a deed of conveyance with warranty against liens' suffered by them or either pf them. .On the- 7th October, ,1808, S. B. Foster confessed a judgment to Alexander-Power, for 186 dollars and costs. A fi.fa. issued on this judgment to May Term, 1805', and an alias to March, 1808, by virtue of which a levy was made on the land purchased by the plaintiff as aforesaid, an¿ then in his possession. In March, 1809, a motion was made iji the Court of Common Pleas of Crawford county to set aside the execution, which was rejected by the court. A liberari issued to September, 1809: whereupon the plaintiff paid Power his debt and costs. It did not appear that the defendant received notice from the plaintiff of the proceedings on Power’s judgment.
    
      whether a judg£ ment against a vendor obtained subsequently to articles of agreement for the sale of land, is binding on <■ such land f
    
    If, however, by such articles, the whole purchase money is to be applied to the discharge of judgments prior to the articles, and is so applied, judgment subsequent to the articles not binding on the land.
    If the vendee pays such, judgment after execution without de- • fending himself against it or giving no* tice to the vendor to do so, he cannot recover back the amount in covenant on a warranty by the vendor, in his deed, against liens suffered by him.
    
      
      Campbell, for the plaintiff in error,
    argued, 1. That in Pennsylvania, after articles, the vendor is trustee for the vendee, and the vendee is not bound to look to subsequent judgments : nor are they a lien on the land. 2. At the time of Power’s judgment there were prior judgments to more than the amount of the purchase money. Power could be in no better situation than Foster, and Foster could not refuse a conveyance on payment of prior incumbrances to the amount of the purchase money. The plaintiff ought not to have paid the money, but should have called on Foster to defend him. against the execution. He could not have been turned out on the liber ari:. but should have stood an ejectment. He cited Hurst v. Hurst, Circuit Court of U. S.
      
      .
    
    Baldwin, contra,
    admitted that the purchaser is the equitable owner from the date of the articles : but contended, that a judgment against the vendor, before the money is paid, will bind the vendee who has received no conveyance. He cited Finch v. Earl of Winchester.
      
       Tourville v. Nash,
      
       1 Atk. 381. Wigg v. Wigg.
      Fitzgerald v. Burk.
      
       Hardingham v. Nichols,
      
       1 Smith’s Laws, Penn. 7. 59. 370. 3 Binn, 9. Sugd. 302. 4 Smith’s L. 477.
    
    
      
      
         3 Binn. 351 note,
      
    
    
      
      
         1 P. Wms. 277.
      
    
    
      
       3 P. Wms. 306, 7.
      
    
    
      
       1 Atk. 384.
    
    
      
       2 Atk. 397.
      
    
    
      
       3 Atk. 304.
    
   Tilghman C. J.

(After stating the case.) It does not appear that the defendants received notice from the plaintiff of the proceedings on Power’s judgment; consequently they are at liberty to shew, in this action, that the plaintiff might have defended himself against that judgment. The defendants have made two points; 1. that Power’s judgment, being subsequent to the articles of agreement for sale of the land to the plaintiff, was not a lien on that land. 2. That the plaintiff had a right-to apply the whole purchase money to the payment of the liens existing at the time of the articles, and the whole purchase money being thus applied, the land was discharged from all subsequent judgments. I shall give no opinion on the first point, because the second is sufficiently clear, and is decisive in favour of the defendants. If Power’s judgment had any lien on the'land púrchased by the plaintiff, it could only operate on the interest of the Fosters, such as it was at the time of the judgment. Now what was this interest ? It was no more, at most, than a right to retain the legal estate until the terms of the articles were complied with. It cannot be pretended that the judgment could defeat the articles., Its utmost effect would be to operate as notice to the plaintiff not to pay the purchase money to the vendor* but to the judgment creditor. But this judgment of Power’s must, at all events, be postponed to prior judgments. T.he plaintiff had a right, then, and it was his duty, to apply his payments to the discharge of the prior judgments which were known both to plaintiff and defendants} because it was the intention of both parties, when the articles were executed, that they should be so applied. And having applied the whole purchase money in this manner, neither the Fosters nor any persons who obtained judgment against them, subsequent td the articles, could withhold the legal estate from the plaintiff: although it would still remain bound by judgments entered prior to the articles. It appears clearly, then, that the plaintiff might have defended himself against the judgment of Power; and not having done so, nor called upon the. defendants to do it for him., the present action, for the recovery of damages sustained' by that judgment, is not maintainable. I desire it may be distinctly understood,'that no. opinion is intimated concerning the general effect of a judgment against the vendor, subsequent to articles of agreement for sales of land. It is a point.of very great importance, on which much property depends The present case is decided on its own circumstances. The judgment is to be reversed. .

Yates J., absent.

Brackenridge J. concurred.

Judgment reversed.  