70 Pa. 373 | Pa. | 1872
The opinion of the court was delivered, January 29th 1872, by
Primarily the decision of this case rests on the question whether the sale of the property of Edward Devlin in Philadelphia, under the judgment of James Kitchenman, was a satisfaction of the judgment of Claghorn, Herring & Co. Benner v. Phillips, 9 W. & S. 20, is cited by the appellants as an authority that a sale of land by the sheriff “ is a payment of the amount for which it is sold; whether it ever reached the pocket of the creditor or not. He must look to the application of the purchase-money.” This is certainly true as to the debtor, and that is the sense in which the language is to be understood. When the property of the defendant in the judgment, real or personal, is sold under execution, and the proceeds paid into the hands of the sheriff, it is a discharge of the debtor’s estate to that amount; but what creditor’s debt it will extinguish is a question to be settled only by the final distribution and appropriation. It is that alone which determines what creditor shall be thrown upon the fund, or shall suffer the loss if he passes it by. Universal practice and numerous authorities prove that the sale and receipt of the money by the sheriff'are not per se a satisfaction of any particular encumbrance, though the lien of it may be extinguished. Hence it has been held over and over again that a creditor having two funds subject to his encumbrance, may pass the first by and come in upon the second for payment; a thing he could not do were the fund first brought into 'distribution a satisfaction of his debt. Whether he will be permitted to do this, or, having done it, whether a junior encumbrance will be permitted to stand in his place by subrogation, will depend upon the equities among the lien-creditors which ought to prevail. The following cases abundantly support these positions : Bank of Pennsylvania v. Winger, 1 Rawle 295; Addams v. Hefferman, 9 Watts 529; Hastings’s Case, 10 Id. 303; Ziegler v. Long, 2 Id. 205; Konigmaker v. Brown, 2 Harris 269; City of Philadelphia v. Cooke, 6 Casey 56; Del. & Hud. Canal Co.’s Appeal, 2 Wright 512; Cummins’s Appeal, 9 W. & S. 73.
This brings us, therefore, to the question, what the equities of the parties are, and on this secondary consideration the decision must rest. As it regards the fund for distribution, it is conceded that the judgment of Claghorn, Herring & Co. is the first lien. It is also the first lien on the funds in Philadelphia county. The case stands thus : The judgment of Claghorn, Herring & Co. was entered first in Philadelphia on the 21st of September 1868, and
But when McGinnis went into Franklin county, and there asked his Cumberland county judgment to be subrogated to McLanahan’s in Franklin county, he was met by the declaration that the court would not undertake to settle claims not within their jurisdiction, and his application failed. Whether this was a good reason it is unnecessary to say, or whether the doctrine of equity is correctly stated in the opinion is unimportant, as the case differs from this in the material fact mentioned. Here Carson & Co. go into Chester county with an actual assignment of Claghorn, Herring & Co.’s judgment, and their equity, as we have seen, is superior to that of either of the appellants.
The record of the judgment of Claghorn, Herring & Co. in Philadelphia affords no evidence of satisfaction there, and the equity of Carson & Co. as prior encumbrancers entitled them to call upon Claghorn, Herring & Co. to take their payment out of the Chester county fund.
Upon the whole case, finding no error in the distribution made by the Court of Common Pleas of Chester county, the decree is affirmed with costs to be paid by the appellants, and the record is ordered to be remitted to the court below for distribution according to the decree.