21 A.2d 31 | Pa. | 1941
Blanche C. Stofflett, appellant, owner of a judgment which is a lien upon two parcels of real estate held by Joseph Kress and Anna Kress, his wife, as tenants by entireties, as well as upon property owned by Joseph Kress individually, and which was originally given to one George Krick to secure payment of the purchase price of one of the parcels held by the entireties, issued execution against the individually owned property of *334 Joseph Kress alone. Alexander Maranuk, by his father and next friend, George Maranuk, and George Maranuk in his own right, appellees, as junior lien creditors of Joseph Kress, individually, by virtue of judgments recovered in an action for injuries sustained by the minor appellee as the result of being bitten by a dog belonging to Kress, filed a petition, under the Act of July 9, 1897, P. L. 237, attacking the validity of appellant's judgment and asking that the execution be vacated and set aside, on the ground that its purpose was not solely to collect the amount due on the judgment, but to defeat the rights of appellees in the property owned by Kress individually and to immunize such property from the lien of their judgments. The court below found appellant's judgment and lien to be valid but, nevertheless, by its final decree, vacated the execution and restrained appellant "until further order of the court" from proceeding against the separate property of Joseph Kress, stating: "On the whole, justice, equity and fair dealing, as well as the usual practice and procedure, require [appellant] to proceed against the properties held by [Joseph Kress and Anna Kress] by entireties which are subject to her judgment and which are more than ample in value to satisfy the same. If she cannot make her money out of these properties, it will then be time enough to proceed against the separate property held by either Joseph Kress or Anna Kress". From the decree so entered, appellant has taken this appeal.
The decree was final and subject to appeal. As stated inPontius v. Nesbit,
41; Feagley v. Norbeck,
It is well settled, as stated in Crystal A. Co. v. Potter T. T. Co.,
Whether, to the extent they may be prejudiced by execution against Kress' individual property, appellees would, upon proper application, be entitled to subrogation to appellant's rights against the property held by the entireties, as the properties in equity primarily liable for the indebtedness appellant's judgment was given to secure (Gearhart v. Jordan,
Decree reversed at appellees' cost. *337