11 Pa. 325 | Pa. | 1849
The opinion of this court was delivered by
This case is identical in principle with Neff v. Miller, 8 Barr, 347. That determination, and the authorities upon which it is based, settle that subrogation is admissible wherever a joint creditor of two funds, belonging to different debtors, appropriates one of them in payment of his debts, in disappointment of another creditor of that fund; provided the untouched fund is that from which, in fairness and honesty, payment of the joint debt ought first to have been drawn. In the ordinary case of a creditor with right of recourse to two funds belonging to the same debtor, and another creditor, who can look to but one of these funds as the source of satisfaction, a chancellor will, of course, interfere for the protection of the several creditors, for here there is no risk of doing injustice to third persons. But the administration of this equity is, by no means, confined to these instances, as would seem to have been at one time thought, and perhaps intimated in Kyner v. Kyner, 6 W. 225, and Harrisburg Bank v. German, 3 Barr, 303. Yet, when the funds or subjects of lien belong to different persons, the inquiry is whether the debt, which is a lien on both of them, or any part of it, ought, in justice, to be paid by one of them in relief of the other. If so, chancery will aid the interest of a creditor of the latter fund, against an appropriation of it in lieu of the fund primarily liable. Thus, if a judgment be recovered against A. and B., the latter being merely the surety of the former, for satisfaction of which B.’s land is sold, and his separate lien-creditors thus deprived of the means of payment, they are entitled to be subrogated to the place of the joint judgment-creditor, so as to be let in on the land of the principal debtor, even against subsequent encumbrances. So, also, if the judgment-debtors be partners, and on a settlement of accounts between them, it turns out one ought to pay the full amount of the judgment in discharge of the other’s estate: Dorr v. Shaw, 4 Johns. Ch. Rep. 17; Ex parte Kendell, 17 Ves. 520. Eor the same reason, 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 toward the discharge of the common burden, and beyond this, is to be regarded simply as the surety of the remaining purparts. In this
There is nothing in the suggestion, that the agreement shows the claims against Gearhart and Brown were to be paid with part of the purchase-money of the property, and, therefore, not Gear-hart’s funds, to raise a balancing equity in the latter. The answer is twofold: first, no partnership was shown; and, second, if this were otherwise, the consent of Brown to pay these claims, in part consideration of his purchase, shows — if it shows anything ger
It follows that, as the case stood, the court below was right in assuming to itself, as matter of law, the decision of the controversy. There was, in truth, no disputed fact upon which the jury could be called to pass.
Considered in connexion with this fact, the first error assigned sinks into insignificance. There was undoubtedly a mistake committed in permitting the challenge of a juror after he was sworn, for a cause existing when he was called to the book. The authorities cited for the plaintiff above, abundantly establish this. The proper course, on a persistence in the objection, would have been, to direct a juror to be withdrawn, and then to call a fresh jury into the box. But, as it turned out, there was nothing for a jury to decide; and, consequently, the error committed inflicted no injury on the defendant below. We have often said, we will not reverse a judgment for such a mistake.
Judgment aflirmed.