69 Pa. 485 | Pa. | 1872
The opinion of the. court was delivered, January 9th 1872, by
It is clear that Hollen was entitled to be subrogated to the judgment of Sylvis as against Titterington for whom he was surety. And if his right of subrogation was merely a personal one, it passed to Clawson by the assignment, and the appellants were not entitled to be subrogated to the judgment as against him. But if they were entitled to subrogation as against Hollen, then they were entitled to subrogation as against Clawson, the appellee. The court below decided the question in favor of the appellee on the authority of The Harrisburg Bank v. German, 3
Hollen’s right to subrogation as against the appellants can be maintained only on the ground that it is a personal right which he may dispose of as he sees fit. But it is not a mere personal right, if his judgment-creditors are entitled to be subrogated to it, as ruled in Neff v. Miller. If it is a mere personal right, which he may waive or assign at will, then his judgment-creditors could only claim it by assignment or transfer. But the cases cited clearly show that they are entitled to it on principles of equity and good conscience. And if so, the right to subrogation attached the instant that the proceeds of the sale of IioIIen’s real estate were applied to the payment of the judgment against him as surety, and could not be defeated or set aside by his subsequent assignment. His equity was subordinate to the equity of the appellants, and therefore the assignment of his right of subrogation to the appellee was of no avail as against the superior equity of the appellants. It is evident that the court below would have so decided if the question had been regarded as an open one.
Decree reversed at the costs of the appellee, and record remitted, with instructions to enter decree in favor of the appellants.