86 Pa. 409 | Pa. | 1878
delivered the opinion of the court,
On the 30th of October 1874, Philip Banker obtained a judg
Banker had no part in the arrangement between Baur and Adams. His judgment had been obtained for a single purpose. It was to protect himself as the endorser of the note that was running in the bank. If that had been paid at maturity, all the uses of the judgment would have been served. So far as Banker was concerned, why was the note not paid when it was cancelled by the renewal ? The judgment was a personal indemnity to him. It was not a collateral or cumulative security to the bank. It had no connection with the debt Adams owed, except that it had grown out of it as an independent contract. When the note of the 9th of December was accepted, the discharge of Banker from all obligation as an endorser was absolute, and with that discharge why were not his rights under the judgment at the same time extinguished ? It has been urged that the debt survived. It is true that Adams remained the bank’s debtor for $700, but he was bound by a new contract in a new form, with which Banker had no concern. And with the hazard that he might be called upon for payment of the note removed, the vitality of his judgment was destroyed. His assignment could not galvanize it into fresh life, for on the 4th of February 187.5, he had no interest to assign. If the rights of Adams and Baur were alone involved, there would be no objection to their agreement that it should retain or regain its original efficacy. But nothing which they could do, even in conjunction with Banker, could affect the rights of intervening creditors, which became vested when, by the discharge of Banker, as endorser, the conditions ceased to exist, which gave to the judgment all the validity it possessed.'
Down to the moment when Baur endorsed the new note, he had
In no instance has the equitable doctrine of subrogation been carried to an extent that would support this decree. Ramsey’s Appeal, 2 Watts 228; Dunn v. Olney, 2 Harris 219, and The Delaware and Hudson Canal Company’s Appeal, 2 Wright 512, which were relied on in the opinion of the president of the Common Pleas, were illustrations of Chief Justice Gibson’s familiar rule, that “he who may at law control the application of two or more funds, shall not be suffered to use his legal advantages in a way to exclude the demands of a fellow creditor whose legal recourse is restricted to but one of them.” Cottrell’s Appeal, 11 Harris 294, was just the case this would be if the judgment against Adams had been held not by Banker, but by the Wyoming National Bank. An endorser paying Adams’s note would become entitled to subrogation to the rights of the bank under the judgment as a cumulative security for a single debt. In Cottrell’s Appeal, the endorser of th'e note of a defendant for the amount of a judgment paid it to the creditor, and took an assignment of the judgment. It was very justly ruled that he was entitled to payment in preference to a subsequent judgment entered before the pote was given. “ When an application is made for substitution,” Judge Rogers said, in-Erb’s Appeal 2 Penna. R. 296, “the court will take care that the subrogation of the surety shall work no injustice to the rights of others.” While subrogation is founded on principles of equity and benevolence, and may be decreed where no’ contract exists, yet it will not be decreed in favor of a mere volunteer, -who, without any duty, moral or otherwise, pays the debt of another: Hoover v. Epler, 2 P. F. Smith 522. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor: Mosier’s Appeal, 6 P. F. Smith 76. Chief Justice Thompson-in that case said: “I regard the doctrine as applicable in all cases where a payment has been made under a legitimate and fair effort to protect the ascertained interests of the party paying, and when intervening rights are not legally jeopardized or defeated.” Taxes assessed against an owner of land were paid over during several years by the collector, without payment by the
The decree of the Court of Common Pleas is reversed at the costs of the appellee, and it is now ordered and adjudged that the residue of the fund in court, after the payment in full of the judgment of Robert Baur, No. 217, November Term 1874, be distributed, pro rata, to the judgments Nos. 240 and 359, November Term 1874, in favor of P. R. Webster and Goldsmith Brothers, the appellants.