84 Pa. Super. 527 | Pa. Super. Ct. | 1924
Argued October 28, 1924. This appeal is concerned with the distribution of the proceeds of a sheriff's sale of realty. The real estate of O.S. Wagner was levied upon, on August 21, 1923, and sold in execution under a judgment entered on a bond accompanying a mortgage, which was the first lien. Subsequent liens were held by (1) Rawlings Implement Co. and (2) Amos H. Wagner, in that order. The costs and liens prior to the judgment of Rawlings Implement Co. absorbed all of the fund except $185.08 and this amount, which on the face of the record was payable to Rawlings Implement Co., on account of its judgment, was awarded by the court below to Amos H. Wagner, holding the judgment next in lien, under the following state of facts.
On February 6, 1922, while both judgments were in force, Rawlings Implement Co. issued a writ of fieri facias and levied upon certain goods and chattels as the property of O.S. Wagner. The property so levied upon was claimed by Thomas Manufacturing Co. An interpleader issue was directed and bond was filed by the claimant with approved security in the sum of $1,800. On the trial of the issue, on October 9, 1922, by instructions from the court, the jury rendered a verdict in favor of the defendant, Rawlings Implement Co. for $552.39, the amount of its judgment with interest. The same day an agreement was entered into between the parties that the said verdict should be discharged upon payment of $300 and costs, if made within fifteen days. This amount was duly paid within the time limited, but the verdict was not marked satisfied. On this state of facts the learned court below held that as the settlement had been made without the consent or agreement of Amos H. Wagner, it was of no effect as to him, and that as the Rawlings Implement Co. had within its grasp a fund sufficient to pay its judgment, if it let go of any part of it voluntarily, and without the knowledge or consent of the next judgment creditor, it must be postponed to *530 that extent to the lien of such creditor. The court also said: "Rawlings Implement Co. had recourse to two funds; Amos Wagner to but one fund. And therefore, the latter must be paid from the only fund to which he has recourse. The first cannot give away a fund and thus deprive a second of payment from the only fund on which he has a lien"; and awarded the fund to Amos H. Wagner.
At first reading this seems plausible, but closer consideration reveals the fallacy. Rawlings Implement Co., the prior lien creditor, by its diligence acquired a levy on the judgment debtor's personal property, thus securing an additional source of payment. Amos H. Wagner, the junior lien creditor did not see fit to do likewise. He chose to rely on his lien against the real estate. Had the Rawlings Co. obtained payment in full of its judgment, through its execution against the debtor's personalty, its lien against the real estate would have been satisfied and Amos H. Wagner's judgment would have advanced one step forward in the order of liens on the realty; and any partial payment to the Rawlings Co. through its writ of fieri facias would have benefited Amos H. Wagner proportionately, as respects the lien of his judgment on the real estate. But a levy followed by an interpleader does not of itself amount to satisfaction: Rice v. Groff,
The error of the lower court's ruling lies in the fact that at the time of the levy on and sale of the real estate there were not two funds to which Rawlings Co. had recourse. The personal fund had been eliminated nearly a year before. The decisions relied upon by the appellee and the court below, — Patrick v. Bingaman,
The assignment of error is sustained. The decree is reversed at the costs of the appellee; and it is ordered that the fund remaining be awarded to the appellant on account of its judgment.