Budd v. Olver, Appeal, No. 46

Appeal, No. 46 | Pa. | Mar 28, 1892

Per Curiam,

The order of subrogation, made by the court below, provided that the right of Matthew Clemo, executor of Joseph Wherry, deceased, to receive upon his judgment, against George D. -Olver, entered to No. 376, May T., 1888, the proceeds of the sale made by the sheriff, Nov. 28, 1890, of the land of George D. Olver, should not be affected by the decree. We think this limitation of the order was entirely right. Subrogation is a matter of grace, not of right, and is a creature of pure equity. It will never be decreed where it works injustice. In this case we have an equity of a surety, but it was a secret equity, unknown to the executor of Joseph Wherry. There was nothing upon the record to show that William A. Olver was a surety. In the absence of knowledge or notice of this-fact, Cierno had the right to rely upon the record as it stood at-the time of the sheriff’s sale.

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