257 Pa. 349 | Pa. | 1917
Opinion by
This is a question of distribution in an insolvent estate. On April 28,1913, receivers were appointed for the Fibre Specialty Company, a corporation. Prior thereto, on. July 23, 1912, the company for value gave George W. Taft a demand note for $5,000. J. W. Brainard was official treasurer of the company; and in 1903 gave a bond in $5,000, with Taft and James W. Worrall (now deceased) as sureties, conditioned for the faithful performance of his duties as such treasurer. June 26, 1913, Mr.
After the award of the dividend to Chalfant on the Taft note, the claim against Brainard and his sureties on the bond having been brought to the attention of the court below, it was there ordered that the dividend be retained by the receivers until the final determination of the action on the bond, which was done. The receivers in a subsequent final account charged themselves with the $2,157.15 dividend, which the auditor thereafter awarded appellants by way of contribution from Taft as their cosurety. The learned court below sustained exceptions to the auditor’s report, and by final decree ordered the dividend paid to Chalfant on the Taft note. And from that decree this appeal was taken. The $5,000 note was a matter entirely separate and apart from the treasurer’s bond and had no connection with Mr. Brainard or Ms account with the company. Appellant’s right to contribution or subrogation arose when they paid the judgment. Then they were equitably entitled to an assignment of the judgment, and also of any collateral or other property held by the receivers to secure the payment of the bond. But they were not entitled to the divi
^ It is not easy to see how appellants can secure preference over other creditors whose claims were in existence at the time of the assignment; for as a general rule the rights of creditors are fixed as of that date: Sweatman’s App., 150 Pa. 369; Jamison & Co.’s Assigned Est., 163 Pa. 143; Potter v. Gilbert, 177 Pa. 159; Chestnut Street Trust & Saving Fund Co.’s Assigned Estate, 217 Pa. 151. Except as to rights,and property connected with the transaction, the claim of a cosurety for contribution is no higher than that of any other claim, and subrogation, which is fotinded upon equity and benevolence, will never be granted to the prejudice of other rights of equal or higher rank: Fritch v. Citizens’ Bank, 191 Pa. 283; Knouf’s App., 91 Pa. 78; Grand Council of Penna. Royal Arcanum v. Cornelius, 198 Pa. 46; Shimp’s Assigned Est., 197 Pa. 128. Claims against an insolvent estate which were in existence at date of the assignment, would seem at least to have as strong an equity as one thereafter arising, even though the obligation out of which it arose antedated the. assignment. “It is not a liability to pay, but actual ■ payment to the creditor, which raises the equitable right to be subrogated to his remedies”: Kyner v. Kyner, 6 Watts 221; Hoover v. Epler, 52 Pa. 522; Forest Oil Company’s Appeals, 118 Pa. 138. Subrogation will never be enforced to defeat a superior or even an equal equity: Robeson’s App., 117 Pa. 633. A case quite similar to this in principle is that of Farmers & Drovers’ Bank v. Sherley et al., 75 Ky. 304,
Where the lower court makes a general decree sustaining exceptions to an auditor’s report, and the controlling exceptions are well taken, and the right decree is entered, an appellate court will not reverse because such general decree seemingly sustains some minor exceptions that were not well founded; nor because of minor inaccuracies in the opinion filed with the decree. However, the opinion in this case indicates a correct understanding of the facts and legal principles applicable thereto'.
The decree is affirmed at the costs of appellants.