
    BRENNER’S APPEAL.
    The owner of land, at the time it is taken by a railroad company, is the party entitled to damages, subject to the rights of lien creditors.
    But where the owner of the legal estate purchased the equitable estate after the damages had accrued, his lien upon the damages for unpaid purchase money was not thereby destroyed.
    Appeal from the Common Pleas of Lycoming County, No. 13, Jan. Term, 1884.
    This was an appeal from the decree of the Court awarding damages for land taken by the Catawissa Railroad Co. to Job P. Kirby. The facts are set forth in the opinion of the Court, which was delivered on the 9th Aug., 1833, per
    Bucher, P. J.
    The essential facts are:
    1. On the 21st Eeb., 1868, Elias S. Lowe, John S. Mundy and L. Mundy owned the thirteen acre tract of land (with steam saw mills, &c., thereon erected) on which the Catawissa Railroad Co. entered in 1871, resulting in an assessment of damages to the amount of $4,935.00.
    2. The property was encumbered by Lowe and the Mundys for their purchase money to Fleming by a mortgage of $6,000, but this was paid or extinguished as a lien, and is out of the case.
    3. On the 21st Eeb., 1868, Lowe and the Mundys, by articles of agreement, sold to J. C. Brenner, John Trucks and Joseph E. Parker, the undivided half of the said 13 acres for $25,000, to he paid as set out in their agreement.
    4. On the 15th of May, 1868, the above parties, Lowe and the .Mundys, Brenner, Trucks and Parker, formed a partnership to he called the Lycoming Mill and Lumber Company of Williams-/port, Penna.
    5. On the 27th August, 1869, the interest of Lowe and the Mundys was sold at Sheriff’s sale and purchased by Job P. Kirby; and Brenner, Trucks and Parker remained in possession u.nd used up the stock of logs, valued at $6,000, and the affairs >of said partnership were never settled.
    6. In 1871, when the railroad company took possession of the strip of land,- (part of the 13 acres), both Brenner, Trucks and Parker, in one petition, and Job P. Kirby in his own petition, applied for viewers to assess damages against the railroad company, and the .Court consolidated the two -petitions, and viewers were appointed.
    7. In 1874, the interest of Brenner, Trucks and Parker in the land (13- acres) was sold at Sheriff’s sale, and purchased by Job P. Kirby. '
    . 8. As early as 1870, Job P. Kirby filed his bill in equity to compel Brenner, Trucks and Parker to carry out their agreement of the 21st of February, 1868, with Lowe and the Mundys, whose interest Kirby had purchased at the Sheriff’s sale on the 27th August, 1860, and this bill has neverheen disposed of.
    9. The interest which Brenner had in the damages, he assigned on----, 187 — , to W. P. Keynolds, and the interest of Trucks and Parker was on the 15th November, 1875, assigned to "Weed, Brown & Co. and H.E. Taylor & Co.
    • The question is, who is entitled to the fund (damages paid by railroad company) into Court ?
    It is conceded that Job P. Kirby, as purchaser of Lowe and Mundys’ interest, is entitled to one-half of the fund, and Brenner, Trucks and Parker, by their assignees, claim the other one-half. ;
    It will be observed that it is well settled by authority that the owner of land at the time it is taken is the party entitled to damages, subject to the rights of mortgagees and other lien creditors; Keller’s Appeal, ante 32.
    Then the right of Kirby, as owner of the unpaid purchase money due from Brenner, Trucks and Parker to Lowe and the Mundys, under their agreement of 21stPeb., 1868, (Kirby having bought that right at Sheriff’s sale on 27th August, 1869,) to insist on having the damages applied to the unpaid purchase money cannot be denied. Now the auditor finds, upon very clear evidence, (and the exceptants, by not pressing the 1st and 2d exceptions to his report, confess that he is right,) that at the time the land was taken by the -railroad company, Brenner, Trucks and Parker owed more purchase tuoney under their contract with Lowe and the Mundys than twice the damages ' assessed ; and is would be the duty of the Court to so apply their share of the damages to this unpaid purchase money owned by Kirby.
    The argument against awarding Kirby the damages due to Brenner, Trucks and Parker, is, that in 1874, he became the purchaser of Brenner, Trucks and Parker’s interest at Sheriff’s sale, and thus owning both the land and the purchase money, could not collect the latter; Brown vs. Simpson, 2 Watts, 244; Bradley vs. O’Donnell, 8 Casey, 279, Purviance vs. Lemmon, 16 S. & It., 292. But the right to the damages having accrued in 1871, before he purchased, and the land reduced in value by "the amount of the damages, the principle involved does not apply. It looks to us, that it would be contrary to all equity to .award the fund to the claimants, who confessedly have not paid the purchase money for the land. If they have done so, they could have demanded the fund with “some show of reason.”
    We are of the opinion that the report of the auditor should he confirmed, and will so decree.
    ! And now, August 9th, A. D. 1888, the exceptions are dismissed .and the report of the auditor is confirmed absolutely; and it is •ordered that the Prothonotary pay out the fund in accordance with the report of the auditor, unless an appeal be taken in .twenty days.
    The assignees of J C. Brenner, John Trucks and Jos. E. Parker then appealed, assigning for error the decision of the ■Court in holding, that the purchase money had not been paid in full by Brenner, Trucks and Parker to Lowe and Mundys ; and in not allowing the saw bill of E. Andrews and the two notes .and check paid by Brenner, Trucks & Co., as credits on account of said purchase money ; and in refusing to allow the balances ■due Brenner, Trucks and Parker on the books of the Lycoming Mill and Lumber Co. as a credit on account of said purchase money ; and in deciding that the equitable owner is not entitled to damages, awarded for land taken by the Kailroad Co., unless the purchase money has been paid in full; and in awarding the whole fund to Job P. Kirby.
    
      Messrs. J. A. Beeber and J. C. Hills, Esqs. for appellants
    argued ; that damages for land taken, by a Railroad Co., are awarded to the owner, at the time the land is taken; McFadden vs. Johnson, 72 Penna., 335; Tenbrooke vs. Jahke, 77 Penna., 392. The holder of the legal title would, in no case, be entitled to damages for land taken, by a Railroad Co., as an owner, but the Court might protect him, to the extent of the unpaid purchase money due him.
    When Job P. Kirby purchased the interest of the appellants at Sheriff’s sale, if already possessed of the legal title to the same land, he purchased the same, subject to his claim for balance of purchase money. The equitable title, being thus merged in the legal title, his claim for purchase money, was thereby satisfied, and since then there has been no purchase money due from Brenner, Trucks and Parker, to Job Kirby; Purviance vs. Lemmon, 16 S. & R., 292; Brown vs. Simpson, 2 W., 244; Bradley vs. O’Donnell, 32 Penna., 279.
    
      Samuel Linn, Esq., Contra.
    
    By his purchase in ’74 at Sheriff’s sale, Kirby did not acquire the entire fee simple to the undivided | sold to Brenner, Trucks and Parker, but only so much of the property as remained after the Railroad Co. had exercised their right of appropriation. The right to damages was. substituted for the land taken, upon which Kirby had a lien for the balance of his purchase money, and he could not be deprived of his right to have the value of this land appropriated to his claim.
   The Supreme Coúrt affirmed the decree of the Common Pleas on the 3rd March, 1884, in the following opinion;

Per Curiam.

While the appellee held the legal title, and assignees of the appellant had an equitable interest in the land under articles of agreement with their purchase money unpaid, the Railroad Company entered upon the land and constructed a railroad thereon, by virtue of the right of eminent domain. The damages sustained were assessed jointly. Before they were paid, the equitable interest of .the assignors was sold at Sheriff’s sale and purchased by the appellee. Both legal and equitable titles were thus united in him. The purchase money due him at the. time the damages were assessed was more than the pro rata share of the sum jointly applicable to the.damages.due to the equitable estate. It is conceded, that if the Sheriff’s sale had not been made, the appellee would be entitled to the whole fund to be distributed. It is urged however that the union of both titles in the appellee destroyed his right to claim the money to which he would otherwise have been entitled. In this view we cannot concur. The Sheriff’s sale did not pass to the purchaser the whole of the equitable estate, which the assignors had once owned; but that only which remained after the railroad company had acquired its right of way. This, and this only, did the appellee acquire by his purchase at Sheriff’s sale. It follows that his previously existing right to claim the whole fund, and to apply it on the purchase money due him from the assignors, was in no wise barred or affected by his purchase of their remaining estate.

Decree affirmed and appeal dismissed at the costs of the appellants.

Note. — The owner at the time the entry is made is the party entitled to the damages ; Lawrence’s Appeal, 78 Pa. 365; Beale vs. Penna. R. R. Co., 86 Pa. 509; Davis vs. Railway Co., 114 Pa. 308; Keller’s Appeal, ante, 32; McFadden vs. Johnson, 72 Pa. 335; Tenbrooke vs. Jahke, 77 Pa. 392; Warrell’s Appeal, 25 W. N. C. 196.  