Miller's Appeal
35 Pa. 481
Pa.
1860
Check Treatment

The opinion of the court was delivered by

Strong, J.

Thе question presented by this appeal arises out of the distribution of a fund in the hands of the assignees of Christian Butz, under a gеneral assignment in trust for the benefit of creditors. A brief summary of the facts will make it easily understood. At the time of the assignment (July 7th 1855), Butz was indebted to Depue S. Miller, the appellant, in the sum of $5900, for which judgment was recovered on that day. Subsequently, the assignor became entitled to a legacy under the will of a certain John Herster, who died February 25th 1856. This legacy wаs attached under the judgment obtained by Miller, and the fruit of the attachment was $2402.87, the greater part of which was obtained in July 1856. The account of the assignees was not filed until November 1857, and the fund in the hands of the accountants proving insufficient for the payment of the debts of the assignor, the question raised is whether Miller, the appellant, is entitled to a dividend upon $5900, the debt due to him at the time when the assignment was made, or only upon $3479.13, the balance remaining after сrediting the proceeds of the attachment. The court below was of opinion that the dividend should be made upon the sum due at the time of distribution, and not upon the sum due at the time of the creation of the trust.

It is not easy to seе upon what principle the judgment of the court was founded. By the deed of assignment, the equitable ownership of аll the assigned property passed to the creditors. They became joint proprietors, and each сreditor owned such a proportional part of the whole as the debt due to him was of the aggregate of the debts. The extent of ‍‌‌​​‌​​​‌​‌‌‌​​‌​‌‌​‌​‌​​‌​‌​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‍his interest was fixed by the deed of trust. It was, indeed, only equitable; but whatever it was, he took it under the deed, and it was only as a part owner that he had any standing in court when the distribution came to be made. Having thus a fixed аnd vested interest, having thus been constituted by the deed of assignment an owner of a propor*483tionate part of the trust fund, how can his proportion be lessened by the fact that he has a collateral security for his demand, оr by his use of such security ? His holding and using it cannot injure the other claimants upon the trust fund. It may benefit them; for if the collaterаl security be against the samé debtor, and prove sufficient to discharge the debt, it may entirely relieve the assigned fund from one claim upon it, or by subrogation, the remaining claimants may avail themselves of the satisfied creditor’s rights to it. It аmounts to very little to argue that Miller’s recovery of the $2402.87 operated with precisely the same effect as if a voluntary payment had been made by the assignor after his assignment; that is, that it extinguished the debt to the amount recоvered. No doubt it did, but it is not as a creditor that he is entitled to a distributive share of the trust fund. His rights are those of an owner by virtue of the deed of assignment. The amount of the debt due to him is important only so far as it determines the extent of his ownership. The reduction of that debt, therefore, after the creation of the trust, and after his ownership had become vestеd, it would seem, must be immaterial. If it be suggested, that the whole debt due Miller might have been paid by the assignor after the assignment, and before distribution, the answer is at hand: Miller’s ‍‌‌​​‌​​​‌​‌‌‌​​‌​‌‌​‌​‌​​‌​‌​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‍right to participate in the distribution at all, is only a right in equity; it requires the aid of а chancellor, and that aid will not be given if the whole debt be paid. To hold that the other creditors of the assignor are to receive any benefit from Miller’s attachment of the legacy, would be equivalent to holding that they hаd some equitable interest in that legacy, even while the debt due Miller remains unpaid. Such a position is quite untenable.

Strictly accordant with this view, we understand to be the decisions in this state. In Morris v. Olwine, 10 Harris 441, which was a case of distribution under an assignmеnt for the benefit of creditors, we have the ‍‌‌​​‌​​​‌​‌‌‌​​‌​‌‌​‌​‌​​‌​‌​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‍principle distinctly asserted. There a creditor by bond and mortgage was held entitled to a pro rata dividend upon his whole claim, even though he had collected the greater part of it оut of the mortgaged property, the amount collected and the dividend together not being sufficient to satisfy the debt. He was not restricted to a dividend on his claim as reduced by the proceeds of the mortgage. It is true, that befоre the proceedings on the mortgage, the account of the assignees had been filed, and an auditor had reported a scheme of distribution, but the dividend apportioned to the claim of ,the mortgage-creditor was retained under control of the court, until the proceedings on the mortgage were terminated. Then he was рermitted to take the dividend on his whole claim as it was before a portion had been paid. It would seem, therеfore, that the question now pre*484sented was in that case directly raised ‍‌‌​​‌​​​‌​‌‌‌​​‌​‌‌​‌​‌​​‌​‌​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‍and adjudicated. Keim’s Appeal, 8 Casey 42, is in principle the same.

The two cases of Bank of Pennsylvania v. McCalmont, 4 Rawle 307, and Perit v. Pittfield, 5 Rawle 166, rеlate to a different state of facts. In those cases, more than one person was liable for the pаyment of the debt, and each debtor had made a voluntary assignment. More than one trust was created, and the contest was between the beneficiaries under these different trusts. It is hardly necessary to say, that such a case is governed by very different principles from those which control a case where there is only one trust fund. In the casеs cited, there would have been no right to subrogation, had the creditors of one fund paid off the entire debt due the creditor who had a claim upon both funds, nor could they have compelled him to resort to the fund to which he аlone had a right, before participating with them, The funds did not belong to the same debtor.

The decree of the Cоurt of Common Pleas is reversed, and the record is remitted ‍‌‌​​‌​​​‌​‌‌‌​​‌​‌‌​‌​‌​​‌​‌​‌​‌​‌​‌​​‌‌‌‌​​‌​‌‌‍with instructions to order a distribution, giving to the appellant a pro rata dividend upon the amount of his judgment as it was at the date of the assignment.