Kerr's Appeal

92 Pa. 236 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

This was a question of distribution. The appellant held a judgment of $12,000 against David Armstrong, whose real estate had been sold by the sheriff and the proceeds thereof paid into court. The judgment was entered February 11th 1875, and was given to indemnify the appellant for all endorsements, liabilities and obligations which W. O. Brackenridge, one of the obligors, had then assumed, or might thereafter assume, to the First National Bank of Mercer, Pennsylvania, on the same day a judgment was entered against said Armstrong in favor of John T. Bard for $1000. On the next day, February 22d, a judgment was entered against the same defendant in favor of the executors of Samuel Braham, deceased, for the sum of $2500.

The judgments of appellant and John T. Bard having been entered upon the same day, would, so far as their position on the record is concerned, be entitled to come in upon the fund pro rata. The auditor finds as a fact, however, that the parties when before him agreed, that the bank judgment should have priority. No agreement in writing to that effect was made and attached to the report, as it should have been, and the agreement itself is denied by the counsel for the appellant. The view which we take of the case dispenses with a discussion of this question.

The right of the appellant to come in upon the fund is resisted upon the ground that the notes of Brackenridge discounted by the bank upon which the appellant is liable, were made subsequent to the entry of the Braham judgment-, and were therefore not protected by the appellant’s cautionary judgment.

It is clear by the condition of the bond upon which said judgment was entered, that the endorsements of the appellant were voluntary. He was under ho duty or agreement to make future endoi’sements, and there was no stipulation in the bond that it should cover renewals.

The only note for which it was contended the appellant was entitled to claim under his judgment, was anote of W. O. Bracken-ridge, with the appellant as bail, dated October 3d 1876, for the sum of $1875.87 and discounted by the First National Bank of Mercer. As this note was dated long after the Braham judgment, it is manifest under all our authorities, it was not prima facie entitled to any part of the fund. It was claimed that the said note was but a renewal of former notes upon which the appellant was responsible; in other words, that said note was given for a debt existing at and prior to the entry of the Braham judgment. Upon this point the auditor has found, upon what we regard as sufficient evidence, that the note in controversy was intended to cover a note of $231.90, which originated March 7th 1876, and two drafts of Reems Brothers aggregating $1500. Tim claim for the $231.90 is out of the case, under the authority of the Bank of Montgomery’s Appeal, 12 Casey 170, in which it was held that “a mortgage given to secure the payment of notes, bills, &c., discounted, or thereafter to be discounted, for the mortgagors, and all their liabilities to the mortgagees of whatever kind that existed or might thereafter exist at any time, is a lien for future advances as against intervening encumbrances only from the date of such future advances and not from the date of the mortgage.” In regard to the drafts of Reems Brothers, the auditor finds the fact that they were fully paid. He says: “We feel compelled to say that when Braekenridge and Kerr gave to the bank their notes of December 6th 1875, and February 4th 1876, these were in payment of the debt they owed as endorsees. They made a new contract entire, which ivas subsequent to the entry of Brahain’s judgment and must take subsequent.” No exception was made in the court below, nor was error assigned here to this finding of the master. It was held in the Appeal of The Bank of Commerce, 8 Wright 423, that “ evidence of the intention of the parties at the time of the discounts to consider the new notes as renewals of former notes preceding them in the series, is not admissible; for the question was one of fact whether or not they were renewals, and not what the parties intended or considered.” The auditor here has found the question of fact against the appellant, and it is conclusive.

The decree is affirmed and the appeal dismissed at the cost of the appellant.