Gearhart v. Jordan

• Decision Date: 01 July 1849
• Court: Pennsylvania Supreme Court
• Parties: JOHN GEARHART v. EDWARD and FRANCIS JORDAN, trading as JORDAN & BROTHERS.

11 Pa. 325

JOHN GEARHART v. EDWARD and FRANCIS JORDAN, trading as JORDAN & BROTHERS.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Columbia.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Comly and Leidy, for the plaintiff in error.

1. No juror can be challenged without consent after he has been sworn, unless it be for some cause which happened since: 5 Bacon, Abr. p. 365, ed. 1844, and cases there cited; 1 Sellon's Prac. 460; 4 Dall. 353; § 140, act 14 Ap. 1834, Purdon, 674; Kennedy v. Dale, 4 W. & S. 176.

2. The agreement of 22d Feb. 1845 was totally irrelevant.

3. The charge in favour of plaintiff is against every principle of equity.

1. Gearhart had rights that could be destroyed by the subrogation. The agreement of 22d Feb. 1845, proves there were outstanding partnership debts, for which G. was liable, or which he had paid: Sterling v. Brightbill, 5 W. 229; Evans v. Duncan, 4 W. 24; 1 Story, Eq. § 642. It was for the Jordans to prove our liability to pay half this judgment.

2. The two funds did not belong to the same person, but one to Gearhart, and one to Brown: Bank v. German, 3 Barr, 303; 1 Story, Eq. §§ 633, 643; Ebenhardt's Appeal, 8 W. & S. 332; Neff v. Miller, 8 Barr, 357.

3. Baldy, for whom the defendants in error seek to be subrogated, was not a creditor of their debtor, but merely had a lien on the land of Gearhart & Brown: Ex parte Kendall, 17 Vesey, 520; Kyner v. Kyner, 6 W. 225.

John Cooper and Frick, contrà.—1. The challenge did no injury, and is therefore no ground of reversal: 8 W. & S. 391. It would have been more regular to have discharged the panel.

2. The agreement was evidence to show out of what fund or land, and by whom, the lien of Baldy on Gearhart's half was to be paid: Benner v. Houser, 11 S. & R. 352; and to contradict the allegation of partnership.

3. 3 Atkyns, 447; Ambler, 614; 5 Bouvier's Bacon, 371; Lathrop and Dale's Appeal, 1 Barr, 512; 3 Barr, 300; 3 Campbell, 207; 1 Johns. Ch. R. 217; 4 Ib. 412; Presb. Corp. v. Wallace, 3 Rawle, 162; Story's Eq. §§ 633, 642, 643, 644; Nailer v. Nailer, 10 S. & R. 450; 8 W. & S. 334; 6 W. 221; 5 W. 229; Donley v. Hays, 17 S. & R. 400; 1 Starkie's Ev. pt. 3, 376, 4th ed.; Pipher v. Lodge, 16 S. & R. 214; 3 Coke Rep. 14; 3 P. W. 98; 1 Vernon, 219, 455; Cowden's Est. 1 Barr, 267; 8 Barr, 347.

The opinion of this court was delivered by BELL, J.

This case is identical in principle with Neff v. Miller, 8 Barr, 347. That determination, and the authorities upon which it is based, settle that subrogation is admissible wherever a joint creditor of two funds, belonging to different debtors, appropriates one of them in payment of his debts, in disappointment of another creditor of that fund; provided the untouched fund is that from which, in fairness and honesty, payment of the joint debt ought first to have been drawn. In the ordinary case of a creditor with right of recourse to two funds belonging to the same debtor, and another creditor, who can look to but one of these funds as the source of satisfaction, a chancellor will, of course, interfere for the protection of the several creditors, for here there is no risk of doing injustice to third persons. But the administration of this equity is, by no means, confined to these instances, as would seem to have been at one time thought, and perhaps intimated in Kyner v. Kyner, 6 W. 225, and Harrisburg Bank v. German, 3 Barr, 303. Yet, when the funds or subjects of lien belong to different persons, the inquiry is whether the debt, which is a lien on both of them, or any part of it, ought, in justice, to be paid by one of them in relief of the other. If so, chancery will aid the interest of a creditor of the latter fund, against an appropriation of it in lieu of the fund primarily liable. Thus, if a judgment be recovered against A. and B., the latter being merely the surety of the former, for satisfaction of which B.'s land is sold, and his separate lien-creditors thus deprived of the means of payment, they are entitled to be subrogated to the place of the joint judgment-creditor, so as to be let in on the land of the principal debtor, even against subsequent encumbrances. So, also, if the judgment-debtors be partners, and on a settlement of accounts between them, it turns out one ought to pay the full amount of the judgment in discharge of the other's estate: Dorr v. Shaw, 4 Johns. Ch. Rep. 17; Ex parte Kendell, 17 Ves. 520. For the same reason, the rule embraces purchasers, in common, of an estate bound by a joint lien. As between themselves, the purpart of each is liable to contribute only its proportion toward the discharge of the common burden, and beyond this, is to be regarded simply as the surety of the remaining purparts. In this respect they are to be treated as the several estates of joint debtors, one being surety of the other; and, if the purpart of the one is called on to pay more than its due proportion, the tenant, or his lien-creditors, upon the principle settled in Fleming v. Beaver, 2 R. 128, Croft v. Moore, 9 W. 451, and Neff v. Miller, is entitled to stand in the place of the satisfied creditor, to the extent of the excess which ought to have been paid out of the other shares. The doctrine...