West Branch Bank v. Armstrong

• Decision Date: 31 October 1861
• Citation: 40 Pa. 278
• Parties: The West Branch Bank and Mehaffy <I>versus</I> Armstrong.
• Court: Pennsylvania Supreme Court

Page 278

40 Pa. 278

The West Branch Bank and Mehaffy versus Armstrong.

Supreme Court of Pennsylvania.

October 31, 1861.

ERROR to the Common Pleas of Lycoming county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

G. W. Youngman, with whom was John C. Knox, for plaintiff in error, argued that the court below erred in their instructions to the jury: because,

1. The bank never claimed any lien upon the stock of the co-endorser, William McKinney, to pay the accommodation note of John McKinney, but, on the contrary, looked solely to the personal security of the endorsers for the payment of the note.

2. Even if the bank had the legal right to seize the stock of one of the endorsers to pay the note, she was not bound to do so, but had the unquestioned right to recover the money due, by suit against the endorsers.

3. If the lien ever attached to the stock, it was discharged by the sheriff's sale to Mehaffy, at which sale no notice was given of any claim on the part of the bank, nor, in fact, had any such claim ever been made.

4. If the lien ever existed, and was not discharged by the sheriff's sale in September 1856, it ceased when the debt was paid by one of the two joint endorsers in December 1858. For after this time no debt was due and unpaid to the bank by the former owner of the stock, and equity would not keep alive the lien in favour of his co-endorser who paid the money, as against Mehaffy, whose equities as creditor were anterior, and therefore superior to those of Judge Armstrong.

William H. Armstrong, for defendant in error, contended that the lien of the bank on this stock, commenced from the date, or at farthest from the protest of McKinney's note, and that the 35th section of the Act of March 20th 1819, was not repealed by the Act June 16th 1836, relating to executions: Lex v. Potter, 4 Harris 295; while it was affirmed by Act of June 16th 1850, sec. 34, Purd. 74; citing also, Rogers v. The Huntingdon Bank, 12 S. & R. 77; Grant v. Mechanics' Bank, 15 S. & R. 148; Sewall v. The Lancaster Bank, 17 S. & R. 285; Westmoreland Bank v. Kuhns, 2 Watts 136. That this lien results for the benefit of an endorser who has been compelled to pay the bank: Farmers' Bank v. Gibson, 6 Barr 51; Mech. Bank v. Earp, 2 Wh. 390; Willard's Eq. 110; Waln's Assignee v. Bank of North America, 8 S. & R. 73. And that after protest, William McKinney and James Armstrong were both debtors of the bank, who had a lien on the stock and dividends until paid.

That a surety or endorser paying for his principal, may have the judgment assigned in order to levy on the lands of the principal to indemnify himself: Mehaffy v. Shaw, 2 P. R. 378; or for contribution: Steckel v. Steckel, 4 Casey 233.

The bank did claim a lien on this stock, for she levied on it and refused to assign it. She had a right to resort to it and did so. The lien was fixed by law; the sale to Mehaffy was subject to the lien and did not divest it, nor did it cease when the debt was paid by one of the joint endorsers, for the reasons given in 6 Barr 74.

The opinion of the court was delivered, October 31st, 1861, by THOMPSON, J.

The plaintiff's rights in this case depended not upon the doctrine of subrogation, for it did not exist as between him and his joint endorser, William McKinney. Joint promisees have no such rights as against each other, and therefore all that was said on that subject was outside of the case.

...