Roddy's Appeal

72 Pa. 98 | Pa. | 1872

The opinion of the court was delivered, by

Agnew, J.

— From the tenor of the arguments and the entire absence of a reference in the paper-books to the 9th section of the Act of 22d April 1856, Br. Purd. 578, pi. 40, it would seem that act was not brought to the attention of the learned court below. The act confers upon the courts a valuable power, to control and direct executions so as to subserve the rights and equities of defendants as well as plaintiffs. Being statutory, the power is legal, and extends not only to cases of subrogation, in which the court has before exercised equitable powers, but to all cases where the estates of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute. The court may, therefore, order the properties liable to the common encumbrance to be sold in the proportion, or in the succession, in which the properties of the several owners shall in law or equity be liable to contribute towards its discharge, or compel the plaintiff on payment to assign his judgment. It may also direct to what uses the judgment shall be assigned, and when assigned direct all executions thereupon, so as to subserve the rights and equities of all parties, whose real estate is liable thereto. These powers are so clearly remedial and adapted to cases in which the court had not before been accustomed to grant relief, by compelling the plaintiff to proceed in his execution so as to do no injustice ; they should be exercised in the very spirit of the act itself. In this case the defendants held the “ Hoyman” and “ Sturtz” tracts severally, but subject to a common encumbrance, to wit, a joint mortgage, on which judgment had been obtained, which was ripe for execution. Roddy had paid a considerable part of the mortgage-money, but Findley had paid none, and was insolvent. Roddy offered to pay the residue of the proportion of the money to which his several tract was equitably subject. It was therefore just that the two tracts should be so sold as to prevent injury to Roddy by selling his tract for the debt and throwing him upon action against Findley for contribution. This could be easily done without the slightest injury to the plaintiff in the levari facias, by an order that the sheriff sell the “ Hoyman” tract owned by Findley first, and if the price was sufficient to pay the liens, to return the “ Sturtz” tract owned by Roddy unsold; but if the (l‘ Hoyman” tract did not bring a sufficient sum to pay the debt and costs,- then to sell the “ Sturtz” tract, unless the defendant, Roddy, paid to him the residue not made by the sale of the “ Hoyman” tract. By such an order the plaintiff would not be delayed and justice would be done between the defendants in the writ. As the court below declined to exercise their power at all, and to make any order in the ease, their order discharging the rule must be reversed. But as it is alleged that Findley was not made a party to the rule, and had no notice, and yet might be able to show a reason, either not to make the order we have indicated, or to modify it, we forbear making any further decree, and direct the record to be remitted to the court below to hear the rule afresh with notice to Findley; and to make such order in the case as equity and justice shall require.

Order of the court below discharging the rule to show cause reversed, and record is directed to be remitted to the court below to proceed in accordance herewith.