Opinion by

The loss which must fall on one or the other of these parties is not due to any actual fault of either, but to the existence of a secret lien on the property sold as to which neither had any knowledge. If there is any implication-of legal negligence it *479is rather on the plaintiff than on the defendant. The latter certainly was under no obligation to search for unknown and unexpected obstacles in his way to the receipt of his money, while the former, as sheriff, was legally bound to pay the money to the right person. Where a lien creditor becomes the purchaser at the sale, and offers his receipt instead of money, the act of 1846 prescribes a special return and mode of procedure, and if the sheriff departs from that mode and distributes the money himself he does so at his own risk. Mark v. Osmer, 138 Pa. 1. The present is practically such a case, as the lien creditor was the purchaser though the bid was transferred and the deed made to another. The purchaser who gives a receipt upon his lien, and the purchaser who pays down his money stand upon the same basis: Mann’s Ap., 1 Pa. 24, 29.

But it is not necessary, nor do we rest the case upon the fact that plaintiff was the sheriff, for it comes clearly within the established principle that money which is due and has been received without fraud may be retained, though it could not have been recovered by law. The money was due to defendant, though, as afterwards appeared, it was not payable out of this fund, being posterior in rank to the -claim of the city for paving. But this claim being unknown, the defendant received the money in good faith, supposing it to be his due, and without having done anything to produce the mistake under which it was paid to him. In good conscience he is entitled to retain it. Had the plaintiff not paid it over, he on his part could have retained it, for his right is equal, but when he seeks to recover it back from defendant the onus is on him to show a better title. An equal right is not enough, for in cequali jure melior est conditio possidentis.

This principle is settled in a long line of cases from Morris v. Tarin, 1 Dall. 147, to Miller v. Hulme, 126 Pa. 277, and in some of them it has been applied where it was much less 'clear than here. See Taylor v. Commissioners, 3 P. & W. 112; Espy v. Allison, 9 Watts, 462; and Edgar v. Shields, 1 Grant, 361.

On the facts set out in the affidavit of defence the defendant would be entitled to a verdict.

Judgment reversed and procedendo awarded.