27 Pa. 42 | Pa. | 1856
The opinion of the court was delivered by
The appellant was appointed assignee of D. De B. Keim for the benefit of creditors, in 1834. His account was filed and auditors appointed to adjust it in 1840. Auditors made made report in 1845. Report confirmed in 1854. In 1855 the appellant petitioned the court to take off the confirmation, which was refused, and he appealed in 1856.
The statute (see Purd. Big. 805) requires an appeal in such a case as this to be taken in one year from the date of the decree. The decree confirming the auditor’s report was much more than a year old at the time of this appeal, and could not therefore be reached by it, even if the appellant had intended or desired to do so. But the appeal is directly and distinctly declared on the record to be from the refusal of the court to grant the prayer of a petition presented subsequently to the confirmation; and that is the whole substance of the only error assigned.
Is the dismissal of a petition praying the Court of Common Pleas to take off the confirmation from a report of auditors, a definitive decree from which an appeal to this court will lie ? If the petition were in form or substance a bill of review — if the right to a rehearing had been demanded on the ground of facts which were afterwards discovered, or which the appellant had no opportunity of presenting at first — the case might be different. But we have no reason to doubt that the whole matter set forth in this petition was considered and passed upon by the auditors. The appellant himself has taken care to tell us that it was brought
But notwithstanding this, we have heard an argument and considered the merits of the case as if it were regularly before us. We think the confirmation of the auditor’s report was right. The balance due from the appellant was ascertained to be $>22,566.39. He does not assert that he was charged with too much, or that he was entitled to any credits which he did not get. The debts amounted in all to $>31,917.29, of which the assets were sufficient to pay 70tu per cent., and they were distributed among them pro rata. Among other creditors was the administrator of Ley, whose dividend amounted to $3265.85. That debt was a lien on land in Schuylkill county, out of which the creditor had realized $3681.51, a sum greater than the dividend awarded to him, but not equal to the whole debt. The appellant thinks that the amount thus obtained out of the land ought to be credited on the dividend as if he had himself paid it out of the fund in his bands. This would be manifestly wrong in any ordinary case, for it would enable the assignee to put the money into his own pocket. The circumstance which is supposed to make the present case differ from an ordinary one is that the assignee overpaid some of the creditors, and if he gets a credit for Ley’s dividend, without paying it, he will not he more than even. But this circumstance does not, in our opinion, strengthen his claim in law, though it does undoubtedly redeem it from all imputation of dishonesty. He cannot make reprisals upon one creditor to indemnify himself for paying too much to another.
The lands in Schuylkill were sold by Christian Ley to D. De B. Keim, the assignor, but the purchase-money was unpaid, and the legal title remained in Ley. This was the condition of things when Keim made his assignment to the appellant, and so it remained until both Keim and Ley were dead. Then (in 1843) an Act of Assembly was passed, with the object, we presume, of simplifying the title, so that purchasers need have no fears. In pursuance of that act, and under its authority, the administrator of Ley made a deed to the administrator of Keim, and the administrator of Keim secured the purchase-money by giving a mortgage on the same lands to the administrator of Ley. The representative of Ley got no advantage by this, nor did the assignee of Keim lose anything by it. The purchase-money was as well secured upon the land before the Act of Assembly as it was after-wards. It was also the personal duty of Keim to pay for the
Of course Ley’s administrator has no right to receive from the assignee more than will pay the balance of the debt, and we do not understand that more is claimed. The amount made from the land will be credited on the whole debt, and execution go for the balance only. The appellant will therefore not be obliged to pay the whole sum that was awarded as the dividend of Ley’s debt. The money which he will thus retain should be applied pro rata to all the debts, and those which he has paid in full will get their share with the others.
The appellant cannot claim to be subrogated to the rights of Ley’s estate against the land. His payment of debts which he had no assets to pay, did not give him a better position than the original creditors would have had if they had got no more than their share. They could not have claimed a subrogation properly speaking.' They might insist — and the appellant standing in their shoes may also insist — that Ley shall not be twice paid; that if he is satisfied out of one fund, he shall leave the other to the rest of the creditors. By paying off the balance of this debt, the appellant clears the lands in Schuylkill of the mortgage, and leaves what can be made out of them to be divided among the other creditors.
Appeal quashed.
