
    Cooley’s Appeal.
    November 27, 1856.
    1. Where a party purchases at sheriff’s sale, an estate encumbered by a prior mortgage, and pays it off and takes an assignment of it to himself, he is not entitled to be paid the amount of the mortgages out of the assigned estate of the mortgagor.
    Appeal from the decree of the Court of Common Pleas of Allegheny county.
    
    In 1853, Seaife, Atkinson & Okely, made a general assignment for the benefit of creditors. November 11, 1854, the assignee filed his account, which was confirmed and referred to an auditor, to make distribution of the fund amongst creditors.
    Long before the assignment, the assignors had purchased real estate from Jane Sample and J. W. Biddle, giving separate mortgages to each, to secure portions- of the purchase-money. Afterwards, and before the assignment, they gave a mortgage on the same property to J. & D. E. Park. After the assignment, the Messrs. Park issued a scire facias upon their mortgage, obtained judgment, issued execution, sold the premises, and became the purchasers at the sheriff’s sale. Subsequently, they (being at the time owners of the land, subject to the payment of the encumbrances held by Sample and Biddle,) paid their several claims, took .assignments, and brought forward these mortgages as claims against the assets in the hands of the assignee. The auditor allowed-the claim, and the court confirmed the report of which appellants complain.
    
      Shinn, appellant:
    Referred to Act of 1785, “An Act taking lands in execution for the payment of debts.” Act of 6th April, 1830, P. L. 293.
    
      D. W. and A. S. Bell, for appellee:
    Referred to 4 Kent’s Com. 420; Shenk’s Appeal, 2 B. 304.
   The opinion was delivered

Per Curiam.

— The principle decided in the case of Mansell v. Lutz, 8 Harris, 284, requires a reversal of the decree, so far as to exclude the claim of J. & D. E. Park, for the mortgages of Sample and Biddle, paid by them, amounting to $541.11. The Parks bought subject to the prior mortgages, and when they paid them they did nothing more than their duty; and taking an assignment of the claims to themselves was entirely fruitless.

But very improperly we are not furnished with the whole case in our paper-books, and therefore we cannot make the final decree in the case, and are compelled to refer it back to the Common Pleas for correction.

Decree. — November 27,1856. This case came on to be heard at the present term, and was argued by counsel; and, on consideration thereof, it is ordered and decreed, that there is error in the decree of the Court of Common Pleas, in allowing the claim of J. & D. E. Park for the mortgages of Jane Sample and J. W. Biddle, paid by them, and amounting to five hundred and forty-one dollars and eleven cents; and therefore the said decree is reversed, so far as it concerns the said sum, and the cause is referred back to the said court for correction.  