1 Pa. 512 | Pa. | 1845
The opinion of the court was delivered by
■ Appeal from the District Court- of Alleghany county by Sylvanus Lathrop, a judgment and execution creditor of the Petersons and Kincaid ; and also by Thomas F. Dale, who claims to be subrogated to the rights of William Taylor in those judgments obtained by him, the first on the 27th of December, 1841, and the second and third on the 3d of January, 1842, each for the sum of $274 84, in the District Court of Alleghany county, against Lewis Peterson, Peter Peterson, and James T. Kincaid, on the ground that he (Dale) had become bail for the defendants, in those judgments, for the purpose of giving to them the stay of execution allowed by the act of Assembly in such cases; and had, as such, paid the amount of the judgments, but not until after the judgments, for which a preference is claimed, were obtained.
The Bank of Pittsburgh had the first judgment and lien against Lewis Peterson, Peter Peterson, and James T. Kincaid, upon which they sued out an execution, took the separate real estate of Lewis Peterson, and by a sherifPs sale thereof made the amount of their judgments. The next judgment and lien, in the order of time, was had on the 23d of November,1840, in favour of the Monongahela Navigation Company for $562 50, against Lewis and Peter Peterson, the plaintiffs, in which they claim to be subrogated to the rights of the Pittsburgh Bank under their satisfied judgment. Croker & Brothers appear to have the second judgment, in point of time, entered the 19th of March, 1841, for $93 35, against Lewis Peterson, Peter Peterson, and James T. Kincaid. And again, a third judgment was entered on the 1st of June, 1841, for $1497 93, in favour of William Speer, against Peter and Lewis Peterson. There were other judgments obtained against Lewis Peterson, Peter Peterson, and James T. Kincaid, of later date, in favour of different persons; and the judg
Two questions seem to arise in this case. First, Will a subrogation of the Monongahela Navigation Company and William Speer, respectively, to the rights of the Pittsburgh Bank, entitle them to receive the money in court ? That is, the Monongahela Navigation Company to receive first as much of it as will satisfy their judgment, and William Speer next the residue of it, towmrds satisfying his judgment, pro tanto ? Secondly, Can Thomas F. Dale be subrogated to the rights of William Taylor, and thus become entitled to receive said money, or any portion thereof? The decree of subrogation is opposed, and sought to be reversed, on the ground that the Bank of Pittsburgh, having sued out execution on their judgment, and made the amount thereof, by a seizure and sale of the property of one of the defendants in it, have no right or claim under or by virtue of it, to which any
We come now to what has been said and decided in our own courts on the question under consideration. In Fleming v. Beaver, 2 Rawle, 128, where H. and M. were sureties for P., and M. paid half the debt, and joined H. in confessing a judgment to a creditor of P.’s for the other half, it being agreed H. should pay this judgment; part of it, however, was paid by a levy on the personal property of M., and the residue he paid in cash. H.’s land being sold by an execution upon a judgment of later date, at the suit of another person against him, it was held, that M. had a right to receive the money in the sheriff’s hands arising from the sale, in preference to the subsequent judgment creditor of H. This case was decided in 1828, and the Chief Justice, in delivering the opinion of the court, says, “ actual payment discharges a judgment at law, but not in equity, if justice require the parties in interest to be restrained from alleging it, or insisting on their legal rights.” In Burns v. The Huntingdon Bank, 1 Penna. Rep. 395, which was decided by this court in 1830, an endorser, against whom a judgment had been obtained by the bank for the amount of the note endorsed by him, where a separate judgment also had been obtained against the drawer, after being compelled to pay one-half the amount of the debt, the residue thereof having been paid by the bail of the drawer, who became bound for the payment of it, to procure a stay of execution after the entry of the judgment against him, was held entitled to be subrogated to the rights of the bank against the drawer, and also of the judgment against his bail, which had been obtained by the
From the foregoing cases it would appear, that we have adopted the general rule, that á surety by paying the debt of his principal becomes entitled to be subrogated to all the rights of the creditor, so as to have the benefit of all the securities which the creditor had for the payment of the debt, without any exception, as well those which became extinct, at law at-least, by the act of the surety’s paying the debt, as all collateral securities which the creditor held for the payment of it, which have not been considered as directly extinguished by the surety’s paying the debt. Fleming v. Beaver was clearly a case where the surety had the benefit of a judgment against himself and the principal, which had been actually paid, and thus extinguished by him at law, for the purpose of recovering by means thereof, as if it had been a judgment still unpaid and in full force, the moneys which he had paid in discharge of it. Burns v. The Huntingdon Bank was not altogether the same, though approaching pretty near to it. The endorser there of a note, against whom the bank had obtained a judgment, being
In regard to the second question, whether Thomas F. Dale can be substituted, and permitted to claim the money in court, under the judgments in favour of William Taylor, it seems to be well settled that he cannot, by several decisions of this court, in the cases of Burns v. the Huntingdon Bank, 1 Penna. Rep. 395; Patt v. Nathans, 1 Watts & Serg. 155, and Armstrong's Appeal, 5 Watts & Serg. 352. In this last case, the very point was decided, that one who becomes surety of a defendant in a judgment, to entitle him to a stay of execution, and by reason of such liability afterwards pays the judgment, is not entitled to be substituted as plaintiff, and have priority to subsequent judgment creditors. The judgment, therefore, in favour of Sylvanus Lathrop, if there were no others here, being for $4000, would be sufficient to bar all pretension of claim to the money in court on the part of Mr. Dale.
The decree of the court is therefore affirmed.