9 Pa. 498 | Pa. | 1848
By his covenants to pay the amount of the mortgage, and the interest accruing thereon, as part of the purchase-money of the premises conveyed by McIntyre and Rogers, Barrington made the debt his own, as between himself and his vendors: Campbell v. Shrum, 3 W. 60; Blank v. German, 5 W. & S. 36. But as they still stood bound for it to Parker, the relationship of principal and surety was established, as between them and Barrington, immediately on the execution of the conveyance, though each continued liable to Parker as principal debtors. In this particular, their relative positions are very similar to those occupied by the parties in Fleming v. Beaver, 2 R. 128, and may
But, contrary to what would seem to be the English doctrine upon the subject, it is now definitively settled in Pennsylvania, that, though actual payment discharges a judgment or other encumbrance at law, it does not in equity, where justice requires it should be kept afoot for the 'safety of the paying surety. And this is always the case where the amount of the debt is advanced to procure the control of the security, and not with the intent to extinguish it: Croft v. Moore, 9 W. 455; for there is no principle of equity which requires a surety to pay the debt in ease of his principal, or for the benefit of the posterior encumbrancers. On the argument it was accordingly admitted that, with respect to the principal sum due under the mortgage, the District Court was right in awarding the money to Mr. Oakford, as the representative of the mortgagors, inasmuch as the circumstances attending payment to the mortgagee, precluded the notion of an intent to discharge the lien. It was thought, however, that a difference exists as to the sums paid for interest. TEese, it is said, must be taken as paid absolutely and in unqualified discharge of the interest, as it does not appear there was, at the time of payment, an intent to preserve it as a continuing claim against the purchaser. But, as is intimated in Croft v. Moore, it is ordinarily difficult to conceive a mere surety’s intention to be extinguishment, and not advancement. Primá facie, the latter is to be taken as the object. Where, therefore, there are no special circumstances evidencing an intent to discharge
A similar doctrine was announced in the late cases of Neff’s Appeal, decided at Harrisburg, and O’Neil v. McClure, at Pittsburgh. Indeed, I think the present is ruled by those cases and Fleming v. Beaver.
The view which has been taken makes immaterial the objection that Sharp was not permitted to take defence to the scire facias.
Decree affirmed.