#### Townsend *versus*Prowattain.

1. City taxes were assessed in 1860 on a lot iii Philadelphia and a lien was filed for the same. On a *scire facias*issued on the lien in 1865 judgment was obtained February, 1866. A similar lien for taxes of 1862 was filed; a *scire facias*issued on it, and judgment was obtained December 7th, 1867; the premises were sold by the sheriff' on this judgment, January 6th, 1868; this judgment was paid from the proceeds, and after payment of costs, etc., there was not enough to pay the .taxes of 1860; the premises were sold in 1870 on this judgment for those taxes. *Held,*that under the act of, March 11th, 1866, the lien for these taxes was not discharged by the sale of 1868, and that the purchaser under the sale of 1870 took a good title.

2. Although the proceeds of the sale of 1868 were sufficient to discharge the taxes of 1860, and might have been so applied as the first lien, they were not constructively paid nor their lien destroyed.

3. The money raised by an execution goes to the judgment on which it issues, except when superior liens or equities intervene

4. The taxes being against the same property, and due to the same creditor, *140superior liens or equities do not intervene; the statute does not give one precedence over the other.

' 5. Duffy ». Philadelphia, 6 Wright; 192; Philadelphia *v.*Meager, 17 P. P. Smith, 345, followed.

January 5th, 1874. —

Before Agnew, C. J., .Mercur and Gordon, JJ., Sharswood, J., at Nisi Prius.

Error to the District Court of Philadelphia, of January Term, 1872, No. 157.

This was an action of ejectment, brought April 30th, 1870, by Evan Prowattain, against Aquila Townsend, for a lot of ground on the north side of Mary Street, in the Second Ward of the city of Philadelphia.

The premises in question *had originally belonged*to Margaret V andervier. The city of Philadelphia entered a lien against her lot for taxes for the year 1860, amounting to $16.60. A *scire facias*on this lien was issued to the December Term, 1865, of the District Court, in which judgment was obtained, February 28th, 1866, for $20.31.

A similar lien was entered for taxes of 1862.

On this lien a *scire facias*was issued September 19th, 1867, and judgment taken by default, December 7th, 1867, and damages assessed at $22.03. A *levari facias*on this judgment was issued and the premises sold to the plaintiff, Prowattain, January 6th, 1868, for $100; and deeds made to him, February 1st, 1868. After paying the debt for taxes of 1862 recovered on the *scire*facias, costs, etc., there remained in the sheriff’s hands a balance of $13.59, less than enough to pay the judgment for the taxes of 1800.

To December Term, 1869, a *levari facias*was issued on the judgment obtained February 28th, 1866; for the taxes of. 1860; the premises were sold by the sheriff under this writ, January 3d, 1870, to J. P. B. Eddy, for $255, and deed made to him February 5th, 1870. After the payment of the judgment, costs, etc., and taxes which had accrued until 1870, there remained in the sheriff’s hands a balance of $54.05, which was paid to Margaret Vandervier, the owner. By divers conveyances this title was vested in James McGuigan, March 2d, 1870; the defendant, Townsend, was his lessee, u-nder lease dated April 14th, 1870.

The cause was tried September 29th, 1871, before Stroud, J., when the foregoing facts appeared in evidence, — the *levari facias*of 1867, sheriff’s sale under it and other matters, not important to notice, offered by plaintiff having been admitted under objection and exception by the defendant. No points' were submitted by either party, but the court instructed the jury to find for the plaintiff:'; they so found.

*141The defendant took a writ of error. He assigned a number of errors ; one was, that the court should have instructed the jury to find for the defendant:

“Because the sheriff’s sale under which he claimed was for the taxes earliest assessed, and the same had not been paid or reached out of the proceeds of the earlier sheriff’s sale, under which plaintiff claimed.”

*J. L. Floyd*and *J. C.*Longstreth, for plaintiff' in error.

Cited act of March 11th, 1846, section 6, Pamph. L., 115; 2 Br. Purd., 1089, pi. 29. A sheriff’s sale will not discharge taxes nnassessed, or unregistered, unless the proceeds are sufficient to pay them: Duffy *v.*Philadelphia, 6 Wright, 192.

*G. L. Crawford*and *T. It. Flcock,*for defendant in error.

Mr. Justice Gordon

delivered the opinion of the court, January 19th, 1874.

If the lien of the taxes of 1860 was exhausted or destroyed by the sale upon the claim for those of 1862, then the court below was right in its rulings, but not otherwise. It is a fact conceded, that the sale of 1868 for the taxes of 1862 did not raise money enough to satisfy the taxes and costs for that year and those of 1860, under which the sale of 1870 was made, and which is the foundation of the defendant’s title. Now, unless there was a legal application of the proceeds of the sale of 1868 to the taxes of 1860, as being the elder lien, that lien was not, under the act of March 11th, 1846, section 6, divested, and it follows that the sale under it was good. This act has received a direct judicial construction in the case of Philadelphia *v.*Meager, 17 P. F. S., 345, in which Williams, J., says, in speaking of this act: “ The language of the act is too plain to admit of any doubt as to its purport or meaning. It was clearly intended to prevent the lien of municipal claims from being discharged by judicial sales where the proceeds of sales are insufficient to pay them.” The case of Duffy *v.*The City of Philadelphia, 6 Wr., 192, is of like import; and this case also construes the expression “ such claims,” in the said act, to mean taxes registered and unregistered: See also Smith *v.*Simpson, 10 P. F. S., 168, where the same construction is incidentally recognized.

We are therefore left in .no doubt upon this branch of the case, and without more the learned judge of the District Court should have ruled with the defendant below.

But it is contended that there was a misapplication of the *142money arising from the sale of 1868. That instead of applying it upon the lien of 1862, upon which it was raised, it should have been, and therefore constructively was, applied to the lien of 1860, and consequently the taxes of 1860, being technically satisfied, would not support the sale of 1870.

But *prima fade*the money raised by an execution goes to satisfy the judgment upon which it is raised ; and this rule obtains uniformly except when superior liens or equities intervene to divert it from its natural channel. But here no such obstacles intervene. Both sets of taxes are against the same property, and in favor of the same creditor. The statute gives no precedence to the one over the other, but in express terms preserves the lien of both alike, and in effect declares that a sale upon the one shall not discharge the other, unless the money arising from such sale be sufficient to satisfy both.

What principle of equity would have been served, or what public or private good subserved by the application claimed by the plaintiff below ? It would still have left an arrearage of tax, which he was obliged to discharge if he would save his property from sale; so that he himself could have derived no substantial benefit from the application of his own theory.

The taxes themselves, without a claim filed, are a lien for five years after their assessment. As well might it be said, if the property-owner, upon demand by the collector, paid the taxes of 1862, there would thereby be a legal application of such payment to the taxes of 1860, because they were first in lien, as to say, for a like reason, that a collection by execution of the taxes of 1862 extinguished those of 1860.

Coming thus to the conclusion that the balance of the taxes of 1860, remaining unpaid after the sale of 1868,'was effective to support the sale of 1870, it follows that the court below erred in instructing the jury to find for the plaintiff.

Judgment reversed, and *venire facias de novo*awarded.