"Subrogation
was claimed for Joseph A. Stuart underthe
"Subrogation
was claimed for Joseph A. Stuart under the following
circumstances: Lewis F. Lyne was plaintiff in judgment No
168 Jan. T., 1887, for $7,000 against George P. Searight and
F. W. Searight. Stuart was plaintiff in a later judgment
against George P. Searight to No. 602 April T., 1887, for
$75,558. In January, 1891, the real estate of George P
Searight was sold at sheriff's sale, and the whole amount
of the Lyne judgment was paid out of the proceeds, leaving
but $10,006.64 to be applied to the Stuart judgment. In the
Lyne judgment the defendants were joint debtors, each owed
the one half, and each was surety for the other; but in the
distribution George P. Searight's real estate was made to
pay the debt of both. Stuart being thus deprived of his
security on which his lien rested, asks to be subrogated to
the right of the plaintiff in the Lyne judgment, to compel
payment of F. W. Searight's share of the original
liability for his indemnity. The auditor disallowed the
claim, and his ruling is excepted to.
"I
think it may be conceded that when George P. Searight's
property had been taken to pay the entire debt, Stuart was in
position -- other things being equal -- to require that F. W
Searight's estate should be subjected to the payment of
his judgment, to the extent that he had been disappointed by
the appropriation of the fund which had been pledged to him
to another's advantage. The cases of Neff v.
Miller, 8 Pa. 347; Gearheart v. Jordan, 11 Pa.
325; and Huston's Appeal, 69 Pa. 488, sustain this view.
But other things then were far from being equal, as between
these several debtors; when $3,500 of George P.
Searight's money was taken to pay F. W. Searight's
portion of the Lyne judgment, the estate of the latter was
fixed for a debt of George P. Searight amounting to $11,038,
which he owed on a judgment No. 283 April T., 1885 -- revived
to a later term -- held by the Fidelity Insurance and Trust
Co. [guardian of the Bosler minors], and on which F. W.
Searight was surety. The sheriff's sale which swept away
from Stuart the same estate which was the security of his
judgment, demonstrated beyond all doubt, if such
demonstration were needed, that the whole burden of the Trust
Company's judgment for the debt of George P. Searight
rested upon the estate of F. W. Searight. It would be a
strange principle that, in such a state of facts, would allow
George P. Searight to enforce the Lyne judgment, for the
recovery of any excess he may have paid them, without regard
to the larger indebtedness which he himself owed. It would be
just as inequitable to allow Stuart to do it, for, admitting
his equity, it is entirely overcome by the superior equity in
F. W. Searight's estate. His rights rise no higher than
the rights of his judgment creditors. It is through the
latter that he acquired whatever right he has, for, since the
latter is first to feel the injury, it is to him the right
first attaches. Though this be true, it does not always
follow that the debtor may enforce the right. Who may enforce
it depends upon the equities of the case, sometimes the
debtor, sometimes the creditor, as the case may be; but in no
case may the latter do what the former could not do with the
right conceded to be in him. Allowing Stuart to succeed to
all of George P. Searight's rights in the Lyne judgments,
he would be entitled to get nothing therefrom, so long as the
former remained indebted to F. W. Searight's estate a
larger amount.
"The
exceptions to the ruling of the auditor cannot be sustained
and are accordingly dismissed.
"The
right of the Trust Company to participate in the distribution
of the proceeds arising from the sale of the real estate is
resisted on the ground that its judgment No. 283, April T.,
1885, entered 11th March, 1885, was not revived, and
consequently lost its position in favor of later judgments,
which are now entitled to priority over it, and which are
more than sufficient to exhaust the fund, and that this
results, notwithstanding the death of the judgment debtor in
1888, and the sale of the real estate within five years
thereafter. The contention is that the continuance of the
lien of a judgment for five years from the death of the
defendant therein, preserving whatever priority it may have,
is dependent upon the act of Feb. 24, 1834, section 25; that
as the law stood prior to the passage of that act, no
judgment continued a lien with priority over subsequent
judgments for a longer period than five years, unless within
that period it was revived (act of 26th March, 1827); that
the act of June 1, 1887, being a supplement to the earlier
act of March 26, 1827, re-enacted it, and that the general
affirmative words used therein, to wit, 'and no judgment
shall continue a lien on such real estate for a longer period
than five years from the day on which such judgment may be
entered or revived, etc.,' operate to repeal the act of
Feb. 24, 1834, so far as it gave continuance of lien, and
that since the passage of the act of June 1, 1887, nothing,
not even death itself, can continue the lien of a judgment
beyond five years without a revival.
"This
argument would have much force were the act of June 1, 1887,
an original act and not supplemental. Were such the case its
effect would doubtless be to restore the law as it stood
prior to 1834, since a subsequent statute, if it have
negative words, is generally allowed to repeal the former.
But the fact that it is supplemental is of great, if not
controlling significance. We dare not overlook the fact that
as an amendment, to give it any validity at all, it was
necessary to recite in terms the original statute and
re-enact it. The negative words relied upon in the argument
to effect the repeal are found in the original act. The
purpose of their insertion in the act could not have been
what is now sought to be gathered from the supplement, for,
prior to that legislation, death did not operate to continue
the rank of the judgment, with its lien, for five years, and
therefore such a thing as repeal could not have been in
contemplation, in re-enacting the law with these words left
in it. Did the legislature intend that they should have a
larger significance than they had in the original act? If
not, no artificial rule for the interpretation or
construction of statutes can give it to them. This supplement
of 1887 became operative at once upon its passage. It is not
too much to say that thousands of judgments were then rested
upon no other security than that afforded by the act of 1834.
Are we to assume that the legislature intended to sweep away
the security from beneath them, supposing it had the power to
do so, and leave them valueless? When such large results
would follow, if the legislation were efficient to the end,
the purpose to accomplish them, if not expressed in words,
should be indicated by something more than a rule of
construction. The supplemental act has a purpose clearly
expressed in its last seven lines, which are the addition
made to the original act and the only change made in it. They
do not remotely relate to the question under consideration,
but do go to show that they themselves constitute the
amendment exclusively.
"The
weakness of the counsel's argument is in giving to an
artificial rule of construction greater force than to the act
of assembly itself. It would use the rule, not as an aid to
discover the purpose of the legislature, but to arbitrarily
assign a purpose, which not only is not expressed, but is
negatived by all the surrounding circumstances. It applies
the rule, to make it accomplish certain results, and then
insists that such results were intended. This would give to
rules of construction the force of constitutional law.
Certainly the language employed in the supplement would
support the contention of counsel, were it not evident that
the intention to repeal did not exist. 'A thing within
the intention, is within the statute though not within the
letter; and a thing within the letter is not within the
statute unless within the intention:' People v.
Insurance Company, 15 Johns. 380.
"The
conclusion of the auditor with respect to the right of this
judgment in the order of its priority is correct, and the
exceptions thereto are overruled."
