81 Pa. 460 | Pa. | 1876
delivered the opinion of the court,
Conceding all that can be asked, that the advances by Taylor to Schuon constituted one debt, for which two several mortgages were taken as securities, and that the sum of $656.44, the differ.ence between the amount of these two mortgages and the sum actually advanced, was usurious, it is not easy to comprehend upon what principle of law or equity the usury is to be apportioned between these two mortgages. The opinion of the learned judge below does not enlighten us. A creditor who has several securities for the same debt, has a right to avail himself of any one' of them, until he has realized his whole legal claim, principal and interest. If Taylor had sued out the $10,000 mortgage, he would have been entitled to a judgment for the whole amount, principal and interest, for after receiving it, there would still have been a balance due him, for which he must look to his other security. That other security he may never realize or not in full. If both mortgages had been turned into money, and it was thus legally ascertained that there was more than enough to pay Taylor his debt in full with legal interest, there might then have arisen a question of marshalling the assets, there-being two separate funds. Here there -was but one fund in court, upon which the $10,000 mortgage stood as an undoubted lien, and the Eagan mortgage not a lien. It seems to us that there was error in the decree of the court below.
Decree reversed, and now record remitted that distribution may be decreed according to the report of the commissioner.
