2 Watts 205 | Pa. | 1834
The opinion of the Court was delivered by
The principle of equity is well settled, that where a party has two funds from which he can satisfy his debt, and another creditor has a lien posterior in point of time on one of the funds only, the first creditor will be compelled to resort to that fund which the junior creditor cannot touch, in order that the junior creditor may avail himself of his only security. 19 Johns. Rep. 486. And if Ziegler and J. Long, who are here the contending claimants, stood simply in this relation, the latter ought to be preferred as to the money in court. But this principle must be employed, like all other rules of equity, to the attainment of justice: it is not to be used to overthrow the equity of another person, and thus work injustice. Now if Ziegler paid the whole consideration money for the land which he bought of M. Long, (a fact concerning which I say nothing, because it has not yet been decided) it would be manifestly unjust to Ziegler that Hoffman’s debt should be paid out of that land, because this would oblige Ziegler to pay that amount a second
Other grounds have been taken as objections to the claims of Ziegler. It is alleged, that Hoffman’s proceeding to a levy and condemnation and venditioni exponas of the land purchased by Ziegler, amounted to an election of that fund, which he or his assignee cannot relinquish. I will not say that a judgment creditor who has proceeded so far, can, at his will and pleasure, desert his process, and adopt a different course against his debtor. But when by other sales money is brought into court to which the plaintiff is entitled, by having the first lien and the prior equity (as it is assumed, at present, Ziegler is), he may waive that proceeding and receive the money.
It is objected, that there was laches in Hoffman in not applying for the money at an early day; and also in Ziegler, in not moving the court to set aside the levy on his land, and direct Hoffman’s execution to be levied on other land of M. Long. To this it is answered by the plaintiffs in error, and I think satisfactorily, that by a rule to show cause, (on whose behalf does n®t appear) Hoffman’s judgment and execution were suspended until February 1826, when the rule was discharged. The money was not paid into court till June 1826, and this issue was directed in May 1827. Whilst the validity of all the proceedings in Hoffman’s suit was thus in question, no steps could be taken by Hoffman as plaintiff, to procure his money,, or by Ziegler as purchaser, to transfer the levy.
It is further said, that Ziegler, when he purchased of M. Long, undertook to pay this debt to Hoffman, or reserved a portion of the consideration money for that purpose—or if he did not, that it was his duty to do so, and having omitted this duty, another ought not to suffer by his neglect. This case will go back to another trial, and if upon that trial it can be made to appear that Ziegler thus undertook, or in any way agreed to pay Hoffman’s judgment, or reserved a portion of the consideration money with this design, he will not be entitled to the money in dispute—or, at least, he is precluded to the amount thus undertaken or reserved. Some evidence was given by the plaintiff with this view on the trial: of the weight to be given to it, it would be improper now to speak. If nothing of the kind took place, then Ziegler was not bound to reserve any portion of the consideration money. He had a right as purchaser of the land, which the assignment of the judgment to him in no manner devest-’ ed, to insist that M. Long’s-other lands should defray it, and the contest now is to enforce that right.
Judgment reversed, and venire facias de novo awarded.