Kindt's Appeal, 102 Pa. 441

Kindt's Appeal

102 Pa. 441 | Pa. | 1883

Mr. Justice Green

delivered the opinion of the court, March 19th 1883.

When Haak’s judgment was l’evived against Miller and Bechtel in 1876, it was done by an amicable writ of scire facias and agreement to which Bechtel, the surety, was necessarily a party. He knew therefore that the judgment Was not being revived against Mrs. Miller, his sister, terre-tenant then of the land which was bound by the judgment on the day it was entered. Moreover he had himself received a conveyance of the land from Miller and wife on the same day the judgment was entered and immediately after re-conveyed it to the wdfe, who continued to hold it thereafter. Bechtel therefore knew perfectly well when the judgment was revived, that his sister, the terre-tenant, was not included in the revival, and that as to her the land was discharged of the lien of the judgment thenceforth. If he desired that the lien of the judgment should remain, it was his plain duty to notify the creditor to that effect both for the creditor’s protection and his own. He did not see proper to do so. Haak, the judgment creditor, might well be *443satisfied to revive his judgment in the same manner as it was originally taken. If he was content with the liability of Charles H. Miller and Bechtel he was perfectly at liberty to rest upon that, and might wait as long as he chose without putting in peril his right to collect the money from Bechtel. Mere supineness would not prejudice his right to resort to the surety, unless the latter notified him to proceed, of which there is no pretence. It would be strange indeed if in such circumstances, an omission to revive against a subsequent alienee of the land, should deprive the creditor of his right of recovery against the surety. It has been repeatedly held that even when the judgment creditor failed entirely to revive his judgment against the debtor and thereby lost its lien altogether against the land of the debtor, such omission was no defence to the surety. Thus in United States v. Simpson, 3 Penna. 437, it was held that where the judgment creditor suffered the lien of the judgment to expire, without revival, the surety was not discharged. Gibson, C. J., said, “ the rule is well settled that mere forbearance however prejudicial to the surety will not discharge him. It is his peculiar business to judge of the danger to be apprehended from delay, and to quicken the creditor, where the occasion requires it, in the way known to the law; in default of which the loss incurred is necessarily to be attributed to his own supineness.” In Mundorff v. Singer, 5 W. 172, it was held, that if an obligee in a bond obtain a judgment against the principal and suffer it to remain without revi val until tlie lien on his lands be lost, and afterwards sue the surety on the same bond, the latcer cannot avail himself of the negligence of the plaintiff as a defence. This principle has been followed in many cases, among which the latest is that of Winton v. Little, 13 Norr. 64, in which Mr. Justice Trunkey, on p. 73, says, “Mere forbearance, however prejudicial to the surety, will not discharge him. This rule applies where a creditor suffers a judgment to lose its lien for want of revival against the principal debtor, and thereby subsequent creditors are enabled to take the land.” The foregoing authorities and the principle which they declare and enforce, were entirely overlooked by the auditor and court, below and hence there was error in the conclusion at which they arrived. There was nothing but delay on the part of the judgment creditor. lie made no contract by which he disabled himself from proceeding at any time. He revived his judgment against both the original defendants, and merely failed to revive it against the terretenant who was a stranger to the original judgment. The surety gave no notice to the creditor to proceed, and it would be contrary to the well established law to hold that in such circumstances he was released from his liability. His obligation was *444kept continuously alive and of course liis estate must discharge it.

The decree of the court below is reversed, and it is ordered that the record be remitted to the Orphans’ Court with directions to make distribution of the fund in accordance with this opinion, the costs of this appeal to be paid by the appellees.