In re Morris's Estate

4 Pa. 162 | Pa. | 1846

Coulter, J.

The question presented for decision in this case is, whether a judgment obtained on a sheriff’s bond against him and his sureties takes preference over a previous judgment obtained against the sheriff alone. By the terms of the act of Assembly of the 15th April, 1834, all the real estate of the sheriff and his sureties, in the same county, shall be bound by a recognisance taken in-the manner prescribed by the act, as effectually as by a judgment in any coprt of record in the same Gountyi.^ \nd for the purpose of -giving Artice to purchasers, it i^^equir^&lhat the recorder shall certify'%e recognisance to the ji^thpn®^^ of the same county, who shall enter the names of the parties th'ireto upon his docket in like manner as judgments are by law directed to be entered. Judgments obtained, therefore, in suits on the recognisance, relate back to and take precedence from the date of the recognisance, in the saipe manner that the lien of i mortgage covers a judgment obtained on a bon'd secured by such .mortgage. !

But the bond given by the sheriff and sureties is an independent security, without relation to or legal connection with the recognisance. It is not essential that the sureties in the bond should be the same as those in the recognisance; whether they were so or not in this case is not exhibited on the .paper-books furnished the court. The act of Assembly does not make the bond a lien, as it does the recognisance, nor do the terms of the recognisance cover the bond as a mortgage does the writing, the payment of which it is intended to secure. I can see, therefore, no legal grounds upon which the judgment on the bond can be held to relate-back to the date of the recognisance, and be covered and embraced by its lien. The judgment on the bond stands unconnected and' takes effect as a lien, like all other judgments, from its date. As auxiliary to this view of the case, I cite Smith v. Miller, 13 Serg. & Rawle, 340.

The decree of the court is reversed, and the judgment in favour of Abraham Franks, endorsee of the German Bank of Wooster v. William Morris, endorser of Richard Brown, No. 37, September, 1834, is directed to.be first paid out . of the fund in court. Next to that,.the judgments on the recognisance are entitled to preference, and then all other judgments, according to'their priority.. • • ■ '• .