Appeal, No. 179, July T., 1893, by • Abraham Albert, executor and trustee of the estate of Malin'■da Albert, from order of C. P. Lebanon Co., June T., 1893, No. 346, making absolute rule for judgment for want of sufficient ■affidavit of defence, in favor of plaintiff, Mary Gernert.

' Rule for judgment for want of sufficient affidavit of defence on sei. fa. sur mortgage.

From the record it appeared that Malinda Albert, wife of Abraham Albert, died in 1879, seized of real estate and leaving to survive her, her husband and a number of children. By her will she gave all of her real estate to her husband, Abraham Albert, in trust for her children after his death. Testatrix also gave the executor “ authority to sell and dispose of the said real estate at such price or prices as he may deem best to the advantages of my (her) said children and to reinvest said proceeds in other real estate.” The trustee sold the land of which testatrix died seized, for $4,750, and purchased the tract of plaintiff for the sum of $8^210, subject to a widow’s dower of $890. He paid $2,210 in cash, and gave a purchase money mortgage for balance of $1,000, being the mortgage in suit. The deed was executed on April 2, 1884, and the mortgage on April 10, 1884. Both were recorded on April 10,1884.

Defendant filed an affidavit of defence in which he averred that, under the will of his wife, he had no authority to execute the mortgage, and that it was irregular, inoperative and void as against the trust estate.

The court entered judgment for want of a sufficient affidavit of defence, in the following opinion by McPherson, J.:

“ This is a scire facias upon a purchase money mortgage, and the defence is that the.mortgage is not a lien upon the land because the land was bought with trust funds and therefore became trust property the very instant the deed was delivered, passing at once beyond the power of the trustee to incumber it, even for the purchase money.

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