
    Henry C. Bouton v. Lord & Hathaway et al.
    .A town-lot of K., which had been previously mortgaged to H., was levied upon under execution issued on a joint judgment against K. and B. in favor of . H., after the expiration of one year from the rendition of said joint judgment. Previous to this levy, the same lot had been levied upon under execution issued on a subsequent j udgment in favor of L. & H. against K. individually, within its year. After these levies, B. purchased said lot at delinquent tax sale, and procured an auditor’s deed therefor. The lot was subsequently levied upon and sold under another fieri facias issued on said joint judgment, and a decretal order, in a suit brought by H., against ■ K., upon the mortgage. Held, on distribution of proceeds among the creditors upon judgment and decree—
    
      1. That B., by Ms purchase at tax sale, did not acquire any exclusive right to said lot, as against the judgment creditors who had levied thereon, nor as against the prior mortgagee, and could not require that the proceeds of the sale should *be appropriated to the joint judgment against himself and K., to the prejudice of the previous judgment and mortgage liens.
    '2. That, by said purchase, B. became trustee of the tax title, for all said creditors and mortgagee, in the order of their respective 1'icns, and could only require of them a reimbursement of the principal and interest of the money so advanced by him.
    .3. That after the levy of execution upon said lot, the taking out a fieri facias, instead of a vend. exp. by the judgment creditor, under which the same lot was levied upon and sold, is not a waiver of the previous levy.
    4. That out of the proceeds of the sale of the lot, the amount of the principal and interest of all moneys paid by B. on said tax sale and for subsequent taxes on said lot, should be appropriated to the joint judgment against K. and B., and the residue of said proceeds be distributed, first to the mortgage lien of H., and the balance to the judgment of L. & H. against K.
    -5. Where a final order is reversed in part, and in part affirmed, the costs in. error must be equally divided between plaintiff and defendants.
    Error, to the court of common pleas of Defiance county!
    This is a petition in error filed to review and reverse a decision •of the court of common pleas of Defiance county, made in disposing of a motion for the distribution of the moneys arising from a judicial sale of lot number sixty, in the town of Defiance.
    . The record shows the facts of the case to be as follows:
    January 21, 1848, John H. Kiser and wife executed a mortgage upon lot number sixty, in the town of Defiance, to Isaac Hull, who assigned the same to John Hough, Jun.
    At the November term, 1850, of the court of common pleas of Defiance county, John Hough, Jun., recovered a judgment against .John H. Kiser and. Henry 0. Bouton for $2,138.65, and costs of suit.
    At the September term, 1851, of the same court, Lord & Hathaway obtained a judgment against John H. Kiser for $645.48, and •costs of suit.
    January 20, 1852, a ft. fa. issued upon the judgment in favor of Hough against Kiser and Bouton, and was levied upon lot number •sixty-six, in the town of Defiance, and returned by order of the at • torney of the plaintiff in execution. and also on other real property. This execution was returned by order of the attorney of the plaintiffs in execution.
    
      ♦February 17,1852, a ft. fa. issued on the judgment in favor of Lord & Hathaway against Kiser, and was levied, February 19.1852, on lot No. 60, in the town of Defiance, appraised at $1,800,
    
      December 17, 1852, a vendi issued on the Lord & Hathaway judgment against Kiser, for the sale of said lot sixty levied on February 19,1852, as above stated. The lot was offered for sale,, but not sold for want of bidders.
    February 15, 1853, and alias fi. fa. issued against Kiser and Doulon, on the judgment against them, in favor of Hough, and on the next day was levied on said lot No. 60. The lot was appraised' at $1,800, and was offered for sale, but not sold for want of bidders.
    At the April term, 1853, of said court, the levy of the execution, on the judgment in favor of Hough against Kiser and Bouton, and the appraisement theretofore made, was set aside, and a new levy and appraisement ordered.
    May 23, 1853, a pluries- fi. fa. issued on the judgment in favor of Hough against Kiser and Bouton; and on the same day an aliasfi. fa. issued on the Lord & Hathaway judgment against Kiser. Ujton each of these two writs the sheriff made return that, on May 26, 1853, he levied them upon said lot No. 60; that it was appraised at $1,600, advertised and sold to David Taylor, October 22, 1853, for $1,066.67. With the writ in favor of Hough, the-sheriff returned a receipt of said Taylor, as Hough’s attorney, for $794.01 of the jmrehase money; and with the writ in favor pf' Lord & Hathaway, the receipt of Sheffield & Taylor, as their attorneys, for $223.20 of the purchase money.
    January 9,1854, Bouton purchased said lot No. 60, at delinquent, tax sale; and on the 17th of January, 1856, received the county auditor’s deed therefor.
    At the April term, 1854, of said common pleas, in the case of' Hough against Kiser and Bouton, “ on motion of *plaintiff’s attorney, leave to amend sheriff’s return of sale on execution is-granted.” What amendment was made, does not appear.
    At the November term, 1855, of said court, Hough, in an action against Kiser and wife on the mortgage of January 21, 1848, obtained a judgment and order for the sale of said lot No. 60, to pay the mortgage lien of $206.62.
    January 29, 1856, an order of sale to satisfy the mortgage lien, issued; as also did another fi. fa. on the judgment in favor of Hough against Kiser and Bouton. This execution was levied on said, lot No. 60, January 30,1856. and the lot was appraised at $1,500,, and advertised and sold for §1,000 to said Hough, March 12, 1856, on both the order of sale and thisji. fa., as appears from the sheriff’s returns thereon.
    March 12, 1856, an alias vendi issued on the Lord & Hathaway judgment against Kiser, reciting the levy upon, and appraisement . and sale of said lot No. 60 -to Taylor, and commanding the sheriff to again offer the property for sale. This writ was returned by order of the attorney of the plaintiffs in execution.
    At the April term, 1857, of said court, in the case of Lord & Hathaway against Kiser, the receipt of Sheffield & Taylor, as attorneys for the plaintiffs, for §223 20, returned with the writ of May 23, 1853, was vacated and set aside, as having been given when no money was in fact received.
    At the October term, 1857, of said court, Hough moved the court to apply the money arising from the sale of said lot No. 60, or so much thereof as was necessary, to the payment of his mortgage lien, being the amount of his judgment, interest, and costs against Kiser and wife.
    Bouton moved the court to apply said money on the judgment in favor of Hough against Kiser and Bouton.
    Lord & Hathaway moved the court to apply so much of said money as might remain after satisfying Hough’s ^mortgage lien, to the payment of their said judgment against Kiser.
    The court directed the money to be applied, first, to the satisfaction of the mortgage lien in favor of Hough against Kiser and wife, and the balance on the judgment in favor of Lord & Hathaway against Kiser.
    To this ruling and decision Bouton excepted, and to reverse the same filed his petition in error in this court.
    In addition to the facts hereinbefore stated, it appears from the bill of exceptions taken by Bouton, that, on the hearing of the motion for distribution, in the common pleas, he, “ further to maintain the issue on his part, established title in himself to the property so-sold,” under his said tax purchase and deed.
    It is claimed on behalf of Bouton that the common pleas erred;
    1. In refusing to order said money to be applied to the payment of the jugdment in favor of Hough against Kiser and Bouton.
    2. In ordering any portion of said money to be applied to discharge the mortgage lien in the case of Hough against Kiser and wife.
    
      3. In ordering any portion of said money to be applied to the ¡satisfaction of the judgment in favor of Lord & Hathaway against Kiser.
    
      James Murray, for plaintiff in error.
    
      Wm. Sheffield, for defendants in error.
   By the Court.

Meld: That Bouton, by his purchase at a tax

•sale did not acquire any exclusive right to said lots as against the judgment creditors who had levied thereon, nor ás against the prior •mortgagee, and could not require that the proceeds of the sale should be appropriated to the joint judgment ^against himself and Kiser to the prejudice of the previous judgment and mortgage liens.

That by said purchase, Bouton became a trustee of the tas title for all said creditors and mortgagee, in the order of their respective liens, and could only require of them a reimbursement of .the principal and interest of the money so advanced by him.

That after the levy of execution upon said lot, the taking out a .•a fieri facias instead of a vend. exp. by the judgment creditor, under which the said lot was levied upon and sold, was not a waiver of ■the previous levy.

That the order of distribution made by the common pleas, appropriating the proceeds of said sale, first to the mortgage lien of Hough, and the residue to the judgment in favor of Lord & Hathaway, should be so far modified as to appropriate, in the first instance, •out of said proceeds, to the joint judgment against Kiser and Bouton, the amount of the principal and interest of all moneys paid by Bouton on said tax sale, and for subsequent taxes on said lot; .and that the residue of said proceeds be distributed in pursuance •of said order made by the court of common pleas.

The order being reversed in part, and in part affirmed, the •costs in error must be equally divided betwen plaintiff and defend.ants.

Cause remanded for final entry in accordance with these principles.  