
    
      Jacob Burris vs. Henry Gooch. J. M. Richardson vs. Jacob Burris.
    
    Where, on proceedings for partition in the common pleas, the land, on the return of the commissioners, is ordered to be vested in one of the parties, on payment of a certain sum of money to the others, the title does not vest until the money is paid; and such order is a judgment on which sd. fa. may issue, on the return of which execution may be had, or an order that the land be sold to satisfy the judgment.
    Land sold for distribution under proceedings in partition is divested of the lien of judgments against the distributees.
    
      Before O’Neall, J. at Lancaster, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “ The first of these cases was an action of trespass for removing a house from a lot, in the village of Lancaster; the second was an action of trespass to try titles to the same lot. Gooch, the defendant in the first case, is the agent of Richardson, the plaintiff in the second. Both present the same questions of law and fact.
    “ To understand them, it is necessary to state that John Richardson was the owner of the lot, and died intestate, leaving a widow and several children; among the latter were Margaret, the wife of Joseph B. Klingle, J. M. Richardson, Jane Richardson and John Richardson.
    “ In the Court of Common Pleas for Lancaster district, proceedings in partition were instituted, and on the 23d April, 1834, the commissioners made a return recommending that the house and lot now in dispute be vested in Joseph B. Klingle, in right of his wife, on the payment of eight hundred and thirty dollars to J. M. Richardson, Jane Richardson and John Richardson; the two last were infants. The Court confirmed the return, and ordered-the house and lot to be vested in Joseph B. Klingle, in right of his wife, on paying the said sum of eight hundred and thirty dollars to J. M. Richardson, Jane Richardson and John Richardson, according to the sums respectively appropriated in their favor.
    “In 1842, J. M. Richardson was appointed guardian of Jane and John, in the Court of Equity, and gave sufficient bonds and security.
    “Before November, 1847, judgment was recovered by John M. Potts, assignee, vs. Joseph B. Klingle, for a considerable sum. This case, it seemed, belonged to Burris. Under an execution issued in it, the house and lot was levied on and sold as the property of Joseph B. Klingle, and purchased by Burris, to whom the sheriff made a title, on the 5th February, 1848.
    “ A sci. fa. was issued at the instance of J. M. Richardson, Jane Richardson and John Richardson, by his guardian, J. M. Richardson, on the judgment in partition, requiring Joseph B. Klingle to shew cause why they should not have execution for the sums respectively assessed in their favor; and, also, why the house and lot shall not be sold in satisfaction of the same. This sci. fa. was returnable to Spring Term, 1847, and was accepted by Joseph B. Klingle.
    “ At Fall Term, 16th November, 1847, an order was made by Withers, J. directing the sale of the house and lot, in satisfaction of the sum assessed in favor of J. M., Jane and John; and on the 6th of March, 1848, the sheriff sold the house and lot, which was purchased by J. M. Richardson, and titles made to him.
    
      “ It was contended, first, that this was not authorized by the Act of 1791; and that, therefore, J. M. Richardson had no title to the lot. I thought differently, and held that the Court, either by sci. fa. or rule, could enforce the conditional judgment of the Court by ordering a sale, if desired by parties in favor of whom the assessment was made.
    “ It was next contended, that Klingle had paid the assessment, and that this order of sale, and purchase by Richardson, was a mere collusion with Klingle to defeat his creditor, Burris. It seemed to me there was no sufficient proof to justify such a conclusion, and I said so to the jury. But still, the facts were all left to the jury, and they were told if they believed the assessments were paid, to find for the plaintiflj in the first case, and for the defendant, in the second. They found for the defendant, in the first case, and for the plaintiff in the second case.”
    Jacob Burris appealed, and now moved for a new trial in each case, on the grounds—
    1. Because his Honor ruled that the law court, upon rule or sci. fa. against Klingle, could order a sale of the lot vested in Klingle and his wife, upon partition, under the Act of 1791, for so much money as exceeded his wife’s distributive share in the real estate of her father.
    2. Because the Court ruled that a distributee might resort to a sale of the loc vested in Klingle, on the partition, in right of his wife, for the excess of the assessed value, notwithstanding the distributee, Jane Allen, had a Chancery guardian, under good bond, by rule of sci. fa. under the Act of 1791.
    
      3. Because his Honor charged that all the circumstances proved, shewing fraud in the sale to Richardson, were not sufficient to avoid the deed.
    
      Clinton, for the motion.
    
      Moore, contra.
   Curia, per Frost, J.

The Act of 1791, (5 Stat. 164) provides that, when the land cannot be fairly and equally divided, the commissioners shall make a special return to that effect; and if the Court shall be of opinion that it would be for the benefit of the parties that the same should be vested in one person, or more persons, entitled to a portion of the same, on the payment of a sum of money, they shall determine accordingly; and the said person or persons, on the payment of the consideration money, shall be* vested with the estate so adjudged to them, as fully and absolutely as the ancestor was vested. But if it shall appear to the Court to be more for the benefit of the parties that the same should be sold, they shall direct a sale, on such credit as they may deem right; and the property so sold, shall stand pledged for the payment of the purchase money. The Court is empowered to make such rules and orders as may be necessary for carrying into effect the provisions of the Act.

Pursuant to the return of the commissioners, in the proceedings for partition of the estate of John Richardson, it was adjudged that the house and lot in dispute should be vested in Joseph B. Klingle, in right of his wife, on the payment of eight hundred and thirty dollars to J. M. Richardson, Jane Richardson and John Richardson, of whom the two last were infants. This order was made in April, 1834.

Before 1847, but after the judgment in partition, Potts, for the use of Burris, recovered a judgment against Klingle. Under execution on this judgment, the house and lot were sold by the sheriff, the 5th February, 1848, and purchased by Burris.

On the case stated, and by the grounds of appeal, the first question that arises is, was the proceeding, by sci. fa. on the judgment m partition, and the order for a sale of the house and lot, regular?

By the judgment of the Court, the house and lot were to be vested in Klingle, “ on the payment of the consideration money.” The payment was a condition precedent to the vesting of the title. Klingle has no deed of conveyance. It is wholly under the judgment that he can claim any right or title in the house and lot. He did not comply with the condition of the sale. When sheriffs and other public officers, and even private persons, make a contract for the sale of property, and the terms of sale are not complied with, the seller may elect to rescind the contract and re-sell the property, or bring an action for the price. It is surely competent for the Court to enforce, in like manner, a compliance with the terms of a judicial sale. Before the Court-can proceed against the' defaulting purchaser, it is proper that he should have notice of the proceeding, that he may shew cause against any order that may affect his interests. This may be done by a rule, or by a scire facias. The latter mode, which was adopted in this case, is more formal and regular and most proper. On the return of the writ, the Court may order a resale of the land, or that execution issue on the judgment in partition, to enforce payment of the purchase money. No other proceeding is necessary: for the judgment in partition establishes the debt, in the same manner as any other judgment of the Court, — and by scire facias execution may, in like manner, be awarded.

, The next question is, whether Klingle acquired such .a title, to the house and lot, under the judgment in partition, as subjected it to the lien of Potts’s judgment against him.

The judgment in partition is the only act or instrument by which Klingle could claim a title to the house and lot. By the condition prescribed, no title was vested in Klingle, until the consideration money was paid. This condition is a necessary security for the payment of the money with which the house and lot were charged. It can operate no hardship or surprise on any person; for any enquiry for the title must disclose also the charge on the property. Until the consideration money was paid, Klingle had only an equitable title to the house and lot; 'which is not subject to the lien of a judgment.

But Burris claims a lien under Potts’s judgment, on the distributive share of Klingle’s wife, paramount to the sale for partition. It might be a sufficient answer to this claim, that the house and lot were partitioned before the judgment was recovered. It is, however, settled that while the distributee has a legal title to his distributive share of real property, which is subject to the lien of judgments against him, and may be sold under execution, yet the title is qualified and limited by the right of his co-distributees to have partition made of the property. If the land be sold under a judgment against the distributee, before any proceeding is had for partition, the purchaser acquires the title and stands in the place of the distributee. If the judgment is not enforced by a sale of the defendant’s distributive share, before partition, the lien is divested. The purchaser, or distributee in whom the land becomes vested, under a judgment for partition, takes it discharged of the lien of the judgment. The judgment creditor may, by timely application to the Court, have his lien protected by an order for the payment to him of the defendant’s distributive share of the price of the land. Rabb vs. Aiken, (2 McC. Ch. 119); Johnson vs. Payne, (1 Hill, 111); McQueen vs. Fletcher, (MS. Eq. cases, Decr. 1851).

The judgment of the Circuit Court is affirmed, on all the grounds of appeal; and the motion is dismissed.

O’Neall, Evans, Wardlaw, Withers and Whitner, JJ. concurred.

Motion dismissed.  