Lloyd et al. v. Galbraith et al.
| Decision Date | 01 January 1858 |
| Citation | 32 Pa. 103 |
| Parties | Lloyd et al. versus Galbraith et al. |
| Court | Pennsylvania Supreme Court |
This case was rightly decided by the learned judge of the Court of Common Pleas. If at the time when Elliott proceeded to enforce payment of his judgment, by the sale of the lot and of the Anderson Farm, he could have been compelled in equity to levy upon the Swan Farm, which Prosser had purchased, then the appellants, whose security upon that lot and the Anderson Farm was taken away by his execution, would be entitled to substitution to his place and to the use of his judgment. The acknowledged principle is, that when a creditor has a lien on two funds in the hands of the same debtor, and another creditor has a lien upon only one of the funds, the first may be compelled in equity to levy his debt out of the fund to which the other cannot resort. This rule, however, has never prevailed except in cases where both funds were in the hands of the common debtor of both creditors. In Ex parte Kendall, 17 Ves. 514, Lord ELDON stated it thus: Subrogation may indeed be admitted in some cases where the two funds belong to different persons, if the fund not taken be the one which in equity is primarily liable. Thus, where one creditor has a judgment against principal and surety, and another has a judgment against the surety alone. If, in such a case, the creditor of the two collect his debt from the surety, the other creditor is entitled to the use of his judgment against the principal: Gearhart v. Jordan, 1 Jones 325. There are other instances than the one I have given. In them all, however, the equity of the second creditor is precisely that of the debtor, and is worked out through the equity of the debtor: Ex parte Kendall, ut supra. Now it is clear, that when Elliott issued his execution he was under no obligation to levy it first upon the Swan Farm. On the contrary, a chancellor would have compelled him, at the suit of Prosser, to obtain satisfaction in the first instance out of the lands which his debtor had not sold. Prosser had bought the Swan Farm, and therefore the remaining property of the debtor was primarily liable for the debt due to Elliott. The rule firmly established in this state is, that if one of several tracts of land, encumbered by a common lien, be aliened by the debtor, the tracts still remaining in him are in equity first liable to discharge the encumbrance: Nailer v. Stanley, 10 S. & R. 450; Cowden's Estate, 1 Barr 267. This was an equity existing in Prosser before the recovery of the judgment of the appellants. The case, therefore, shows that when Elliott's execution was issued, and when Bell, Johnston, Jack & Co. obtained their judgment, there were not two funds belonging to the same debtor upon which the execution could be levied. Not only did the funds not belong to the same debtor, but one of them was exempt from seizure, until that to which alone the appellants could look, had been exhausted. The rule then, upon which they rely in urging their claim to subrogation, is inapplicable to this case. Nor was Galbraith, the debtor, a surety, having, as such, a right to insist that Prosser, as his principal, should pay the debt due to Elliott. The land which he had sold was not in...
To continue reading
Request your trial
-
In re McCahan's Estate
... ... but he satisfies it from funds of the other, the latter may ... be subrogated to his rights in the fund untouched: Lloyd ... v. Galbraith, 32 Pa. 103; Gearhart v. Jordan, ... 11 Pa. 325 ... Subrogation ... is an equitable doctrine and is applicable ... ...
-
Grand Council of Pennsylvania Royal Arcanum v. Cornelius
...59 Pa. 401; Gring's App., 89 Pa. 336; Wagner v. Elliott, 95 Pa. 487; Zeigler v. Long, 2 Watts, 206; McGinnis's App., 16 Pa. 445; Lloyd v. Galbraith, 32 Pa. 103; Erb's App., 2 & W. 296; McCormick v. Irwin, 35 Pa. 111; Bender v. George, 92 Pa. 36; Miller's App., 119 Pa. 620; Fessler v. Hicker......
-
Rice v. Winters
...Insurance, sec. 558; Erb's Appeal, 2 P. & W. [Pa.], 296; Goswiler's Estate, 3 P. & W. [Pa.], 200; McGinnis' Appeal, 16 Pa. 445; Lloyd v. Galbraith, 32 Pa. 103; Richmond Marston, 15 Ind. 134; Marvin v. Vedder, 5 Cow. [N. Y.], 671; Clark v. Moore, 76 Va. 262; Hooper v. Robinson, 98 U.S. 539.)......
-
In re Fritch's Estate
...application), unless this equitable right is interfered with by the existence of some higher equity: Robeson's App., 117 Pa. 628; Lloyd v. Galbraith, 32 Pa. 103; App., 7 W. & S. 269. As to the equity of Sarah A. Fritch, we submit that, being subsequent in her judgment as to date, she has no......