ROBERT DATESMAN’S APPEAL.

Opinion,

The first question we have to consider is whether the life estate of Robert Datesman passed by the sheriff’s sale on the writ of levari facias No. 13 May Term 1888. Prior to the sale the title was vested in the said Robert Datesman as tenant for life, with remainder to his two sons, Edgar P. Datesman and Harris M. Datesman. While the title stood in this position, the life-tenant and the two remaindermen united in a mortgage to Hiram Dunkel for $4,181.70. Upon this mortgage a scire facias xvas issued, and upon the judgment recovered thereon a writ of levari facias was issued, No. 13 May Term 1888, and the mortgaged premises sold for $14,000. It is upon the distribution of this fund that the questions in this case arise.

It Avas a conceded fact that the sale by the sheriff was without notice to tlxe life-tenant or leave of court, as required by *358the act of 1849. It was contended on behalf of the appellant that under said act a life estate can only be sold upon a writ of venditioni exponas after ten days’ notice to the life-tenant, and by leave of court, and a number of cases were cited in support of this proposition. Pentland v. Kelly, 6 W. & S. 483, was the case of a writ of levari facias issued upon a mechanics’ lien. Parget v. Stambaugh, 2 Pa. 485 ; Snavely v. Wagner, 3 Pa. 275 ; Eyrick v. Hetrick, 13 Pa. 488 ; Commonwealth v. Allen, 30 Pa. 49; Kintz v. Long, 30 Pa. 501 ; and Snyder v. Christ, 39 Pa. 499, were all sales upon a writ of fieri facias or venditioni exponas. There is no question as to the law of these cases. Whether they apply to a sale under a mortgage is a different matter. Upon this point the industry of counsel has not furnished us with any decided case in tins state, and I do not think it has been expressly ruled. I see no difficulty, however, in disposing of it upon principle. A sale of a life estate upon a mechanics lien, or an execution issued upon an ordinary judgment, is an adversary proceeding. A life-estate is an uncertain thing, and an adverse sale thereof can rarely take place without a serious sacrifice. The law, therefore, wisely lays its hand upon such a proceeding and prohibits a sale except upon certain conditions. But a sale upon mortgage is a different matter. No one doubts that a life-tenant may convey his estate by deed. A mortgage is but a conveyance with a clause of defeasance. It is something more than a lien; it is the grant of an estate as specific security for the money loaned. The mortgagee is not bound to proceed by scire facias, but may bring his ejectment. Moreover, a mortgage contains an express stipulation that if default be made in the payment of the money secured, the mortgagee may at once proceed to collect the same, and may issue a writ of scire facias thereon, “ any law, usage, or custom, or anything herein contained, to the contrary notwithstanding.” We are entirely clear that the act of 1849 has no application to the sale of a life-estate upon a mortgage given by a life-tenant, and that such sale passes his entire interest.

The remaining questions refer to the distribution. The auditor has found, and upon sufficient evidence, that the mortgage under which the property was sold was given for the benefit of the life-tenant alone, the two remaindermen having *359joined in it to perfect the security, but without receiving any part of the proceeds. Under such circumstances the mortgage must be paid out of the interest of the life-tenant, as also the expenses and costs of audit, as they were rendered necessary by his default. There were two modes of disposing of the fund, either of which would have been allowable. One was to invest the fund until with its accumulated interest it would amount to $14,000, tlie sum which the property brought at tlie sheriff’s sale, after which the life-tenant would have been entitled to the interest on the fund for life; the other was to value the life interest, give the tenant thereof his share in cash, and divide the rest between the two remaindermen. The court adopted the latter principle, and followed the old common law rule in force in England, and recognized in this state in Dennison’s App., 1 Pa. 201, and in Shippen’s App., 80 Pa. 391, that one third of the capital sum is the measure of the life interest. The court therefore awarded $67.66, which was all there was left of his interest, to the life-tenant, and the balance was equally divided between the two remaindermen. We see no error in this. The life-estate in the land was destroyed by the act and default of the life-tenant; the fund realized by the sale represented the entire title to the property; the interest of the life-tenant therein had been exhausted within a few dollars, and no good reason is apparent why the remaindermen should not have their money.

What has been said covers all of the assignments of error except the fourth, in which complaint is made that the court below erred in not allowing to Robert Datesman, the life-tenant, the amount expended by him for permanent improvements, as found by the auditor. I do not see that the appellant made any such claim before the auditor; certainly no such exception was made to his report. There was some evidence before him tending to show that the life-tenant had made some trifling improvements and repairs, but it was so unimportant as not to be included in his findings of fact. There was nothing to show that the improvements were made with the consent of the remaindermen, and it is settled law that the life-tenant cannot of his own motion improve the remaindermen out of their estate. Where the latter consent to improvements for the mutual benefit of the joint estate, and the property is afterwards sold *360to promote the interests of both, equity would perhaps allow the life-tenant a reasonable compensation for the value of the improvements. This assignment is not sustained.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

APPEAL OE EDGAIi P. DATESMAN ET AL.

Opinion, Mr. Chiee Justice Paxson :

This appeal was from the same decree as Robert Datesman’s Appeal just decided, and presents no question that was not considered and decided in that case. We need not repeat what was there said.

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