Keim v. Muhlenberg
7 Watts 79
Pa.
1838
Check Treatment

*81The opinion of the Court was delivered by

Kennedy, J.

Henry A: Muhlenberg, claiming as the assignee of Daniel Fichthorn, who claimed as the assignee of Daniel Fichthorn and John Fichthorn, two of the children and legatees of Andrew Fitchthorn deceased, their respective legacies bequeathed to them by their fatherj and assigned the same to Muhlenberg, cannot be considered as in any better situation, or having a right to recover any thing by virtue of the assignment to him, which his immediate assignor would not be entitled to, had he not made the assignment under which Muhlenberg claims. The claim of the latter is liable to all the objections which might be fairly made against bis assignor had he retained it, and were now the party here asserting a right to recover the same. It would be against every principle of equity, as well as the common sense of justice among mankind, to permit Daniel Fichthorn, the immediate assignor of Mr Muhlenberg, to draw money from the estate of Andrew Fichthorn to the prejudice of the other legatees, who still retain their rights under the will, while he owes to the estate or fund out of which the legacies are to be paid, a sum of money equal in amount to all he would be entitled to receive, were he to pay all owing by him. From the case stated, it appears that when he held the claims against the estate of the testator, under the assignments made to him, he was, and still continues, indebted to the estate. The amount of his indebtedness was after-wards ascertained, by a judicial determination thereof, on the 24th of September, to be 2556 dollars and 21 cents. This sum he was bound, and ought to have paid : had he done so, each legatee would have been entitled, and would have received an equal proportion of it under the will of the testator. In this respect, it is evident, his delinquency has been an injury to those legatees who had not assigned their legacies to him. Then to permit him or his assignee to draw from the legacy fund, as long as he is indebted to it, would be inequitable and unjust, and a continuation of the injury arising from his delinquency to the other legatees. But it is contended that this debt has been paid by George Boyer, the co-covenantor of Daniel Fichthorn, the assignee of John and Daniel. It is true that from a judicial sale of Boyer’s estate, which was bound for the payment of it, an amount, about equal to it, has been raised and remains in the court below for distribution; but it would be neither equitable nor just to appropriate the money made out of the sale of Boyer’s estate, in the first place, to the discharge of the debt or money which Daniel Ficlithorn derived an equal benefit from, with Boyer himself, and was therefore equally bound in equity as well as law, to pay to the estate of the testator. Boyer was bound, himself alone, to pay a certain sum of money, over and above that for which he was equally bound with Daniel Fichthorn. He was bound to pay, in all, 3425 dollars and 36 cents, with interest thereon from August 1837, of which Daniel Fichthorn was only bound to pay 2556 dollars and 21 cents, with interest thereon from the 24th of September 1834. The *82amount of money in court, raised from the sale of Boyer’s properiy, is 2997 dollars and 12 cents, a sum about equal to, or perhaps a little more, than the 2556 dollars and 21 cents with its interest, for which judgment was had against Daniel Fichthorn; but the difference between this last sum and the 3425 dollars and 36 cents with its interest, which Boyer was condemned t.o pay, must be paid first out of the money arising from the sale of his estate; because it is money which he alone was liable for, and. is bound to pay. The justice of this prior appropriation is so perfectly obvious, as respects all concerned, that it cannot possibly be denied; for the residue of the money in court, being more than sufficient to meet the payment of one half of the amount of the judgment against Daniel Fichthorn, it is clear that that is the utmost farthing which he has any right to claim that Boyer shall pay of it, and hence it is clear that he cannot object to this prior appropriation: and as regards the legatees, who still retain their claims under the will, it would be doing injustice to them, not to make this prior appropriation of so much of the money raised from the sale of Boyer’s property, as will satisfy the difference between the amounts of the respective judgments obtained against him and Daniel Fichthorn : and it being fair to make it, as well in respect to these legatees as to Daniel Fichthorn himself, it cannot be otherwise than just as it affects Boyer and his rights, who ought not to be compelled to pay beyond what is sufficient to satisfy his legal obligation in an equitable point of view. It is then only after satisfying the difference between the two judgments against Daniel Fichthorn and Boyer respectively, that any of the money arising from the sale of the property of the latter, can be appropriated to pay any portion of the judgment against Daniel Fichthorn. Daniel Fichthorn and Boyer, however, having participated equally in the benefit derived from the original consideration of this judgment, as must be presumed from the case before us, are as between themselves bound each to pay one half of it: and under this aspect of the case, it appears to me, that only one ha If of it ought to be paid out of the money raised from the sale of Boyer’s property, after paying the difference in amount between the two judgments: unless it be that paying only one half of it would not be sufficient to satisfy the claims of the oLher legatees in full, after deducting the amount of the two assigned to Daniel Fichthorn, from the whole aggregate of the legacy fund, in the same manner as if the 3425 dollars and 36 cents, recovered against Boyer, were fully paid. This all appears to be self evident; for it is impossible to avoid discovering, at the first glance, that it would be unjust and inequitable to permit Daniel Fichthorn to recover money from the legacy fund, when he is indebted to it in a sum equal to or greater than that which he claims to recover; and that he should not be allowed to require Boyer to pay money to the legacy fund, while, as between them, he ought in equity to pay it himself, merely that he .may get hold of and use it, and turn Boyer round to his suit at law to recover *83it back as he can, is, as would seem, equally self evident. This doctrine is not only in accordance with the principles of equity and natural justice, but with the policy of the common law, which is opposed to whatever would unnecessarily lead to circuity of action. Mr Muhlenberg being the assignee of Daniel Fichthorn, and claiming through him, cannot be considered as standing upon a better footing than his assignor. He took the assignment from Daniel Fichthorn subject to every objection, whether equitable or legal, that might have been interposed to the latter’s claiming the legacies in question, at the time. The latter then being indebted to the estate of the testator, or the legacy fund, 2556 dollars and 21 cents, when he first purchased and obtained from John and Daniel Fichthorn their rights respectively t.o the legacies bequeathed to them by their father in his will, cottld not object to the other legatees claiming to be paid the whole amount of their legacies, exclusively out of the moneys on hand belonging to the legacy fund, so as to leave Daniel Fichthorn, the assignee, lobe paid, or to take the legacies coming to him under the assignments, out of the debt which he owed to the estate or legacy fund. As long as he actually failed or neglected to pay the debt, owing by him, in money, they undoubtedly had a right to insist upon setting the one off against the other, so as to produce a mutual liquidation thereof.

We are therefore of opinion that Daniel Fichthorn, the assignee of the shares or legacies of Daniel and John Fichthorn, must be postponed until the other seven legatees shall have first received their respective and full portions of the 3425 dollars and 36 cents, the amount of the recovery against George Boyer.

The judgment of the court below is reversed, and judgment rendered by this court in favour of the plaintiffs in error, who were the defendants below, according to the provision contained in the close of the case stated.

Judgment reversed.