6 Watts 221 | Pa. | 1837
The opinion of the Court was delivered by
We are clearly of opinion, that the court below were right in deciding, that Jacob Kyner, for whose use the scire facias was sued out, was not entitled to be substituted either qualifiedly or absolutely in place of the executors of James Laurie, plaintiffs in the judgment against the executors of Conrad Kyner, And though we approve of the decision, yet I cannot say that we are fully prepared to sanction every thing that is laid down and advanced by the court in support of it. When the court say that “ the power of substitution arises out of the control of the court over their process, aud the right depends upon privity and not upon contract,” it would seem as if they thought that the right of substitution could not be maintained in any case, without the existence of some sort of privity. The privity here spoken of by the court, must be understood to be, as I apprehend, a privity existing either between the party wishing to be substituted and the party whose right or security he wishes to be permitted to use, or between him and some judicial proceeding in the case, by his being a party thereto. For the court, in explanation of their position, that the right depends upon privity, say “ no new right can be created by substitution. It is used as a mere instrument to effect equity. Substitution cannot be adopted as a new and substantive remedy between strangers, but they are left to their action.” And again, the court say, “ Jacob Kyner is a stranger to any judicial proceeding in the case. He is no party to any process or proceeding on which he can demand the summary interposition of the court. And he stands in no privity in blood, in estate, or in law, with any one who is a party to any process or proceeding in court. In legal contemplation he is a stranger.”'
- That there need be no such privity, as the court below seem to think was necessary to enable a party to claim the right of substi
In order, however, to show still further that there is no sort of privity connected with the right of substitution, we may take the case put by Mr Justice Story in sect. 633, already referred to, where, if A has a mortgage upon two estates for the same debt, and B has a mortgage upon one only of the estates for another debt, equal in amount to the value of the latter estate, while the other estate is amply sufficient to satisfy A’s debt; B has a right to throw A, in the first instance, for satisfaction upon the estate which B cannot touch; because it can make no difference to A, out of which of the two funds he shall receive satisfaction; and by compelling him, under such circumstances, to resort for it, to the one on which B has no claim, no injustice is done either to A or the debtor; and B, at the same time, is thereby made secure in the payment of his claim, in the only way that it was practicable for him to receive it. Thus A is only made to act in conformity to the principles of equity and natural justice; and to exercise his right according to the common civil maxim, sic utere tuo, uí alienum non Isedas; or agreeably to a precept, which, from its authority, ought certainly not to be less binding, “ Do unto others, as you would they should do unto you.” Now it is perfectly clear here, that there is no privity of any kind between A and B, or connection either direct or indirect, except that of their being creditors of the same debtor; which is, perhaps, necessary in most, if not in all cases, to authorize substitution. Dorr v. Shaw, 4 Johns. Ch. Rep. 17, 20; Ex parte Kendall, 17 Ves. 520; Sterling v Brightbill, 5 Watts 229; 1 Story’s Eq. 525, sect. 642, 643. It is also equally clear, that B need not be a party to any process or proceeding commenced in the court, where A has commenced his proceeding, with a view to enforce the payment of his claim. So upon the same principle of equity a purchaser for a valuable consideration,. of one of the estates previously mortgaged for the same debt, not exceeding in
In regard to judgment creditors, however, though the same principle is applicable, yet the mode of bringing it into operation and giving effect to it, may be different from that which it might be proper for the court to direct in the case of mortgage creditors in Pennsylvania. Because a creditor having acquired, by his judgment, a lien upon two tracts of land, it may be very material to him, whether he shall proceed by execution against the one or the other, in order to collect his debt; notwithstanding, either may be of sufficient value to satisfy it; for if the rents, issues, and profits beyond all reprizes of the one be sufficient, within the space of seven years, to satisfy his debt, he cannot have it paid at once by a sale of the land, but must wait and take it out of the rents, issues, and profits, which may prolong the payment thereof, for the space of seven years; but by proceeding against the other tract, which may bring as much money, on a sale thereof being made as the first, but being wild and unimproved land, will yield no annual profit, and must, therefore, be sold, he is thus enabled to receive the whole of his claim in the course of seven or eight months at farthest. In such case, therefore, it is not likely that the court would interfere on behalf of the younger judgment creditor, who had a lien only on the unimproved tract, though not of more value than sufficient to satisfy his claim, and compel the elder judgment creditor to proceed against the improved tract to make his claim out of it; because, under such circumstances, it would be doing great injustice to him, by hindering and delaying him in the collection of his debt, which he, in justice, had aright to receive as early as he could possibly obtain it from that portion of the debtor’s estate within his reach, and most likely to produce it.
If, however, the junior creditor were, in such case, to pay the elder creditor the amount of his judgment; or if it should happen that the latter refused to receive it, and the former were then to bring and make a deposit of it in court, the court upon this being done, would subrogate the junior creditor to all the rights of the elder creditor, so that he might have it in his power to proceed on the elder judgment, as well as his own, to collect the amount of both as he pleased. And if the junior creditor should not be able, or find it convenient, to pay the elder the amount of his claim beforehand, the court, after the latter had collected it by a sale of the unimproved land, upon which alone the junior creditor had a lien for his demand, would still possibly permit the latter to use the elder judgment, so as to collect the amount of his own judgment by means of it.
This right of substitution then, being grounded entirely upon principles of equity, is not, and indeed from the very nature of the foundation of the right, cannot be restricted to this case of two or
This being the case, it shows that substitution may be decreed, where no contract of any kind was ever entered into, to connect with each other any of the parties concerned; and where no sort of privity has ever existed, saving that of each plaintiff being a party to his judgment with-the same defendant therein; which we have seen above is not always the case; as for instance, in the cáse of mortgage creditors, where it is not necessary that the party, applying to be substituted, should have any judgment at all nor yet be a party to one; and likewise in the case of a subsequent vendee of one of the tracts who has bought with a covenant on the part of the vendor that it was free from incumbrances.
The court below, however, were perfectly correct, we think, in deciding that substitution cannot be made as long as the debt of the party, whose rights are claimed to be used, for the purpose of protecting or securing junior claims of the applicant for substitution, remains unsatisfied, though it be in part only; for until he shall be wholly satisfied, there ought and can be no interference with his rights or his securities, which might, even by bare possibility, prejudice or embarrass him in any way in the collection of the residue of his claim. Now it is obvious, that such interference cannot be avoided or guarded against with certainty, except it be by the court’s refusing t.o substitute upon any terms whatever, as long as any part of the elder creditor’s claim remains unpaid. For this reason then, even if there were no other, we think that the plaintiff in error here had no right to substitution.
But it is also worthy of remark, that in this case, the plaintiffs in the judgment, that is, the executors of James Laurie, to whose rights, under the judgment, Jacob Kyner, the plaintiff in error, wishes to be subrogated, never- had any notice of his application for such purpose; and -for ought that appears to the contrary, remain ignorant of the proceeding herein down to the present day. •This of itself would have been an insuperable objection to the .court’s undertaking to deal with the rights of the plaintiffs in the judgment, and to transfer or give the benefit of it, either in part or in whole, qualifiedly or absolutely, to Jacob Kyner, the plaintiff in error, who must be regarded as á stranger to it. It would have
Judgment affirmed.