
    JACKSON vs. FISHER.
    Where a lien of city or school taxes is entered prior to the re* cording of a mortgage, a sale upon a judgment entered subsequent to the mortgage discharges the lien of said mortgage.
    Error to Common Pleas of Berks County, No. 306 January Term, 1883.
    Daniel B. Fisher was the owner of certain real estate in the* city of Reading. On the 29th day of May, 1877, the city filed a lien for city taxes, upon said property, to No. 151 May Term, 1877, City Lien Docket, for $40.19. On the same day a lien was also filed by the Reading School District, for school tax,, to No. 112 May Term, 1877, for $20.19. Three days later, 1st June, 1877, Daniel B. Fisher gave a mortgage for $2,000 to. Thomas J ackson, covering the same real estate. The mort-. gage was entered for record June 9, 1877. On the 3rd day of November, 1879, David B. Fisher, the brother of Daniel B., entered a judgment note against “D. B. Fisher,” dated two days earlier, to No. 132 October Term, 1879, and on the same 3rd of November issued a fieri facias, which was, however, dated 3rd October. On venditioni exponas subsequently issued, the premises covered by the mortgage were sold for $40 to David B. Fisher. The $40 were appropriated towards the payment of the city tax lien.
    The executors of Thomas Jackson brought scire facias on their mortgage. David B. Fisher, the terre-tenant, made defense that by the proceedings on his judgment the land was discharged of the lien of the mortgage. His evidence consisting of said proceedings and the records of the several liens above mentioned, offered at the trial, was not admitted by the Court; but the Supreme Court reversed the judgment of the lower Court, and held that the prior liens for taxes had the effect of divesting the mortgage upon a sale of the premises on the David B. Fisher judgment.
    At the second trial of the cause the plaintiffs objected to the evidence of the tax lien and the proceedings on the judgment. The admission of this evidence is one of the errors, -and it is proposed to ask the Court here to reconsider the question of the construction of the Act of 23, March; 1867. The record of the proceedings on the judgment of the terre-tenant, David B. Fisher, was also objected to, because said judgment was fraudulent and the proceedings void. The terre-tenant next offered the sheriff’s deed of the premises covered by the mortgage. To this it was objected that the fi. fa. antedated the judgment; that the judgment and proceedings were against “D. B. Fisher,” while the mortgage was against Daniel B. Fisher, and the sheriff’s deed purports to sell only the interest of “D. B. Fisher,” and that the levy and sale was made of three distinct houses and lots, separately numbered, as one property. The admission of this evidence is the second assignment. In rebuttal, the plaintiffs offered to show that the judgment confessed by D. B. Fisher to David B. Fisher was without consideration, and fraudulent; that it was fraudulently used as a means of selling the property on which the plaintiffs’ mortgage existed, and was purchased by the fraudulent judgment creditor for $40, while the actual value of the property was $5,000. Also to prove that said purchase was made in the interest of ■said judgment debtor in pursuance of an agreement had previous to the sale. The rejection of this evidence constitutes the third assignment of error. We next offered to prove that there was a well-lcnown business man at Leesport. in the county of Berks, named Daniel B. Fisher, who invariably writes himself “D. B. Fisher,” and that said Fisher at the time of the entry of David B. Fisher’s judgment, and for a time prior and subsequent to said date, had a great number of liens entered against him. This we offered for the purpose of showing that the entry of a j udgment against D. B. Fisher, and a levy on property and a judicial sale of it, differently described from that of our mortgage, as the property of D. B. Fisher, was no notice to us that a judicial sale was being had of the mortgaged premises. The rejection of this offer is the fourth assignment.
    The charge of the Court was as follows, per
    Sassaman, J.
    This is a scire facias on a mortgage, the statutory method for collecting moneys due on mortgages. Daniel B. Fisher makes no defense. David B. Fisher the terre-tenant, does make defense to the collection of this mortgage from the lands described in it. The defense by him is that on a judgment against the land subsequent to the mortgage he sold the land and became the purchaser of it. He contends that prior to this mortgage there were tax liens binding this land, and that the mortgage by reason thereof was not protected as a prior mortgage, but became divested by the judicial sale held by the sheriff. The Supreme Court have heretofore held that this tax lien was prior in date to the mortgage. This is obligatory •on us, and we must hence hold that as to the plaintiffs there can be no recovery on this mortgage against David ,B. Fisher, the terre-tenant, The sale at which he purchased discharged the mortgage from these lands, and in a proceeding in rem to recover from these lands the plaintiffs cannot succeed.
    
      G. F. Baer and Jefferson Snyder, Esq., for plaintiff in error,
    cited Rhein Building Association vs. Lea, 11 W. N. C., 517; Fisher vs. Connard, 11 W. N. C., 521; Harrisburg vs. Orth, 6 W. N. C., 121; Perry vs. Brinton, 13 Pa., 202. Where the purchaser is guilty of fraud, no title passes to him; Martin vs. Gernandt, 19 Pa., 124; Gilbert vs. Hoffman, 2 W., 66; Foulk vs. McFarlane, 1 W. & S., 297; Fetterman vs. Murphy, 4 Watts, 424; Schoening vs. Speck, 8 W. N. C., 44; Hays vs. Heidelberg, 9 Pa., 203; Jackson vs. Summerville, 14 Pa., 359 Thompson’s Appeal, 57 Pa., 175; Daugherty’s Estate, 8 W. & S., 196; Sheets vs. Hanbest, 81 Pa., 102; Good vs. Schoener, 10 Leg. Int., 151.
    
      B. Y. Shearer and F. R. Schell, Esqs., contra.
    
   The Supreme Court affirmed the judgment of Common. Pleas on March 12th, 1883, in the following opinion:

Per Curiam.

When this case was here before, it received a full and careful consideration. Notwithstanding the able argament now made, it has not changed the conclusion at which we then arrived. We adhere to that opinion, therefore.

Judgment affirmed.  