Ackerman's Appeal

106 Pa. 1 | Pa. | 1884

Mr. Justice PAXSON

delivered the opinion of the court

The single question here is whether the appellant is entitled to subrogation on the judgment No. 216, April T., 1874. This judgment was given by appellant and W. F. Moser, the decedent, for a portion of unpaid purchase money for certain real estate purchased by the obligors jointly, and for which each was to pay one half. The balance due on this judgment at the time of the audit, was $1000 with interest from April 1, 1879. The balance the appellant, Ackerman, had been compelled to pay upon an execution issued against him. He took an assignment from Utt, the holder of the balance due on the judgment, and now claims to be subrogated to the rights of the plaintiff, and to be paid out of the proceeds of the real estate of his co-debtors upon which real estate the said judgment was a first lien at the time of the sale.

The learned judge refused the subrogation upon the ground that Ackerman and Moser were both principal debtors. This was so as between them and the plaintiff in the judgment. But as between themselves, Ackerman was surety for Moser, and paid his share of the joint liability. This clearly appears from the testimony of Ackerman and Dr. Buzzard. It is true the court say's of Ackerman’s testimony, that he was an incompetent witness, and that Buzzard’s testimony was “too vague to be of any value.” But Ackerman was examined not only without objection, but with the consent of appellee’s counsel, and in our view Dr. Buzzard’s testimony is as explicit as language can make it. He said: “I wras present and assisted in the transfer of judgment No. 216, April T., 1874, from the estate of John G. Miller to J. J. Utt, and heard William F. Moser say that the entire balance due on said judgment was for him (Moser) to pay; I also heard Moser say the same the year previous, when I). H. Ackerman paid the balance of his part of said judgment.”

The learned judge was evidently misled by a dictum in Mehaffy v. Share, 2 P. & W., 861, and felt constrained to adopt the view he did by reason of the absence of authority the other way. In McCormick v. Irwin, 11 Casey, 111, it was said by Justice Strong : “The doctrine (subrogation) docs not depend upon privity, nor is it confined to cases of strict suretyship;” and in Cottrell’s Appeal, 11 Harris, 294, by Justice Woodward: “Subrogation is founded on principles of equity and benevolence, and may be decreed when no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, ho is entitled to all the remedies which the creditor possesses against the debtor.” And in Mosier’s Appeal, 6 P. F. S., 76, where a junior judgment creditor, believing the land would be sacrificed, after the execution plaintiffs had refused to assign their judgment to him on payment, paid the executions to the sheriff, and satisfaction was entered; no other liens having intervened, he was subrogated to the rights of the execution plaintiffs, and the satisfaction cancelled.

While the ruling of these cases is perhaps broad enough to control the present one, we are not obliged to say so, as we have direct authority upon the point. In Gearhart v. Jordan, 1 Jones, 325, it was held that “ the rule embraces purchasers in common, of an estate bound by a joint lien; as between themselves, the purpart of each is liable to contribute only its proportion of the common burden, and beyond this, is to be regarded simply the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the other; and if the purpart of one is called upon to pay more than its due proportion, the tenant, or his lien creditors, upon the principle settled in Fleming v. Beaver, 2 R., 128; Croft v. Moore, 9 Watts, 451, and Neff v. Miller, 8 Barr., 347, is entitled to stand in the place of the satisfied creditor, to the extent of the excess which ought to have been paid out of the other shares.” Gearhart v. Jordan was recognized in the late case of Watson’s Appeal, 9 Norris, 426, where it was said by Mercur, J.: “as between two mortgagors of land held by them as tenants in common, and third persons, each mortgagor is liable for the whole sum secured by the mortgage; but as between themselves each is liable for one half only. As to the other half each is surety for the other.”

Such is the case here. As between Ackerman and Moser, Ackerman was security for Moser’s share, and having been compelled to pay it, is entitled to the benefit of the judgment to that extent.

The decree is reversed at the costs of the appellee, and it is ordered that distribution be made as reported by the auditor.