131 Pa. 86 | Pa. | 1890
Opinion,
The judgment of William Cunningham against the administrators of William Phillips, deceased, obtained September 8, 1874, was founded upon an indorsement made by the deceased upon a note of his nephew, William Phillips, Jr., a son of Robert B. Phillips. After judgment obtained against both the maker and the indorser, Robert B. Phillips became bail for stay of execution in the judgment against his son. At the expiration of the stay, Robert B. Phillips paid the debt, interest, and costs due on the judgment, and satisfaction was thereupon entered upon both judgments on September 8, 1875.
That the payment of the judgment against the principal debtor was an absolute extinguishment of every possible claim against the estate of William Phillips, the indorser, is too plain for argument. It was long ago decided that if, after judgments are obtained against a principal and surety, a third person interposes, and gives his note for the debt, to obtain a stay of execution for the principal, and the surety is afterwards obliged to pay the debt, he is entitled to have an assignment of the judgment on the note of the third person, to indemnify him for such payment: Pott v. Nathans, 1 W. & S. 155. That case simply followed Burns v. Huntingdon Bank, 1 P. & W. 395; and both of these decisions have been many times approved and followed by this court. In Boschert v. Brown, 72 Pa. 372, we held that the equities of a surety exist after the liability of both himself and principal is fixed, both before and after judgment ; that in Pennsylvania a judgment against principal and surety does not extinguish the relation between them; and, if creditors after judgment give time to the principal, the surety is discharged. In the case of Wallace’s Est., 59 Pa. 401, we said: “ It has accordingly been held that a mere volunteer, who.
It will be seen, then, that instead of Robert B. Phillips having any claim whatever against the estate of William Phillips to compel that estate to repay to him the money he paid for his son as bail for stay of execution, he not only had no claim at all, but that if the estate had been obliged to pay the debt, the money could certainly have been recovered of Robert B. Phillips. But Robert B. Phillips did pay the debt, which he was both legally and equitably bound to pay; and not only that, but satisfaction was entered on the judgment against William Phillips in September, 1875. This entry remained until in 1882, when a most amazing proceeding was had. A petition was presented to the court in which the judgment was entered, signed by the same Robert B. Phillips as an individual, alleging that the entry of satisfaction was made inadvertently, and without the consent of the petitioner or the plaintiff, and although it was understood and agreed by the plaintiff and the petitioner that upon payment of the judgment the same should be marked to the petitioner’s use. The petitioner prayed that the entry of satisfaction be stricken off, and the judgment marked to the petitioner’s use. In that proceeding the petitioner was a defendant in the judgment, as administrator of William Phillips, deceased. He was also seeking to be made use plaintiff in the same judgment, by having the entry of satisfaction stricken off after seven years of acquiescence in it on his part. He was thus seeking to be both plaintiff and defendant in the same judgment, but plaintiff in his personal and
It is only necessary to say, of such a proceeding as this, that, at the instance of any creditor of William Phillips who was injured by it, it was void for fraud. It is most manifest that the court had no right, even if the facts set out in the petition had been proven, to make the order striking off the entry of satisfaction. Even if the plaintiff and Robert B. Phillips had agreed that upon payment by him of the judgment, it should be marked to his use, such an agreement would not be obligatory upon William Phillips without his consent; and, as there was neither allegation nor proof of any such consent, as a matter of course there was no power in the court to make such an order. But the matter was many times worse than this, when it is considered that there never was a particle of proof that even an agreement was ever made between the plaintiff and the defendant for keeping the judgment open. It was an ex parte order, made without a scrap of proof. When the petition was presented, and the rule to show cause was obtained, the petition had served its only possible purpose. Of course, it
But, as if this were not enough, the application to strike off the entry of satisfaction was not made until long after the lien of the original judgment had expired, and until after the rights of another creditor had intervened. The Allegheny Yalley Railroad Co. had brought a suit against the estate of William Phillips, deceased, in December, 1875, within less than two years after his decease, for a very large sum of- money, which culminated in a judgment in January, 1888, for upwards of 1466,000, after a long and severely contested litigation- That company was in time to acquire a lien against William Phillips’s real estate. It was not until 1882 that the present scheme was matured, the result of which, if it was successful, would be to deprive this creditor of all recourse to the real estate of the decedent. The circumstances of the long delay after the entry of satisfaction was made, and the manner in Avhich the plan adopted was hurried through, without any notice to creditors, Avithout proof of any facts, and long after any claim of Robert B. Phillips had become barred by the statute of limitations, would be such strong and persuasive proof of a fraudulent intent in fact, that it is difficult to believe that any jury could resist them, if they had an opportunity to pass upon the case. As a matter of course, the right of subrogation is an equitable
In the case of Fink v. Mahaffy, 8 W. 384, one Hays obtained judgment against Quiggle, Fink, and Mahaffy, the two fórmelas principals, and the latter as surety; and in 1828 Mahaffy paid the judgment. In 1836 he made application to be substituted to the place of the plaintiff in the original judgment, so that he might recover the amount from Fink. The court below allowed the substitution, but this court reversed the order, and said: “ Moreover, his demand is barred by the statute of limitations; and if the doctrine of substitution is one of mere equity and benevolence, as it has been said to be, it will not be' enforced at the expense of a legal right. The substitution was therefore improvident. Order reversed, and assignment of the judgment stricken out.” This doctrine has been many times followed, and never questioned. In the case of Bank of Penna. v. Potius, 10 W. 148, we said, of a similar application: “ But
It is perfectly manifest, therefore, that, had the attention of the learned court below been drawn to the question as to the right of Robert B. Phillips to the subrogation which he asked, it must necessarily have been refused. But the present plaintiff was not a party to that proceeding, and had no day in court to interpose an objection. It certainly cannot, however, be deprived of its rights in consequence of that circumstance; and we so held in Douglass’s App., 48 Pa, 223. In that case a decree of subrogation was obtained by a surety within two years after he paid the debt, but not until one day after the sheriff’s sale of the land under a prior judgment. The money was claimed under the decree. We said: “It is insisted, however, that the decree of the court, ordering the subrogation of Wat
It is said in the present case that, after the order of subrogation was made, the judgment was assigned to Mr. C. C. Dickey, and it is assumed that ho had rights as an innocent assignee. It is scarcely necessary to say that this claim is not worth a mo-
Judgment reversed, and new venire awarded.