McGinnis's Appeal

The opinion of the court was delivered June 30, by Chambers, J. George McGinnis, the appellant, a judgment creditor of Lawrence Herchelroth, in the county of Cumberland, asks the Court of Common Pleas of Franklin county, to substitute him in two judgments of James X. MacLanahan, Esq., against the same debtor, on the records of Franklin county, on the ground that Mr. MacLanahan had filed transcripts of his judgments in Cumberland, prior to the lien of the judgment of McGinnis there, and had been paid his two judgments out of the proceeds of the real estate sold in Cumberland. The law of substitution is the exercise of the equitable powers of the court to afford a summary remedy to a meritorious creditor, who may otherwise be subjected to loss by the operation of proceedings at law, against the estate or funds of a common debtor. The exercise of this equitable power is to be approved and en [448] forced, when it does not conflict with the legal or equitable rights of other creditors of the debtor. Mr. McGinnis is not a surety, but a judgment creditor, with the rights and advantages that the priority of his lien may give him over others. Mr. MacLanahan had, by his vigilance, liens on the real estate of Herchelroth, in the two counties. Mr. McGinnis confined his lien to the county of Cumberland, when he might have transferred it to Franklin, having notice on the record of the prior liens of Mr. MacLanahan in Cumberland. He appears to have been satisfied with the security obtained by his judgment, by which, out of Herchelroth’s property sold in Cumberland, he received $1289, leaving a balance of $317, for which he asks to be substituted in Franklin county, on the judgments of Mr. MacLanahan. This is not the case of a creditor having a lien on two funds, and another creditor having a lien on one only, within the same jurisdiction. Mr. McGinnis elected to look to the fund in Cumberland as being sufficient for him, and trust to the proceedings in execution in the courts of that county for the recovery of his judgment. Johnston and John Herchelroth, three days after McGinnis entered his judgment in Cumberland, entered their judgments in Franklin county on the security of the fund in that county. To substitute Mr. McGinnis to the judgments of Mr. MacLanahan in Franklin, would be to raise up to life and lien these judgments which were paid in Cumberland, for the purpose of satisfying the balance of McGinnis’s judgment in Cumberland, and, in doing so, disturb and postpone the judgments of Johnston and John Herchelroth in Franklin, who would be deprived of every advantage from their security in that county. The principle which governs in all cases of substitution, is one of equity merely, and is to be carried out in the exercise of a proper equitable discretion, with a due regard to the legal and equitable rights of others. The claimant who asks this equity must be governed by the common sound maxim, “ sic utere suo ut alienum non Icedas.” The courts in Franklin or Cumberland would not have restrained Mr. McLanahan from proceeding by execution according to his convenience and choice in either county. He was not bound to make room for the admission of one creditor by displacing another who had equal claims. In Miller v. Jacobs, 3 Watts 437; C. J. Gibson, in delivering the opinion of the court, says, “Between subsequent lien creditors, on distinct parts of the general fund, when equities are balanced, the legal course of execution is not to be disturbed.” In Erb’s Appeal, 2 Pa. Rep. 296, Justice Rogers, in the opinion given by him, says, “ When an application is made for substitution, the court will take care that the subrogation of the surety shall work no injustice to the rights of others.” And in Ziegler v. Long, 2 Watts 206, Judge Sergeant observes, “ 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 [449] of another person, and thus work injustice.” What superior equity had McGinnis from his unsatisfied judgment in Cumberland county, that is to deprive Johnston and other subsequent creditors in Franklin of an appropriation of the funds there in the unsatisfied judgments, according to the priority of their liens, when the sale and appropriation were made ? But it is said that McGinnis had a lien in Cumberland, three days before Johnston and J. Herchelroth acquired theirs in Franklin, and that the maxim “prior in tempore, potior in jure,” gives him a preference. But what has his lien in Cumberland county to do with an estate in Franklin county, bound to the extent of its value by liens there ? Had McGinnis entered a transcript of his judgment in Franklin on the same or next day after the entry in Cumberland, by such diligence he would have secured all the advantages, as if both estates had been in the same county. Having declined to do this, he is without equity that would prefer him to the judgment creditors in Franklin, who elected to look to the estate there for their security. To allow McGinnis to be substituted to the judgments of Mr. McLanahan, as if existing, would have given him a preference over a judgment creditor, A. Gressler, whose Hen in Franklin, though subsequent to Mr. McLanahan’s lien, was prior to the lien of Mr. McGinnis in Cumberland, and 'it would have been the small amount of Mr. McGinnis’s balance that, under such a substitution, would have left any thing for Cressler’s judgment, which was prior in time to Mr. McGinnis’s judgment. Such a disturbance and subversion of liens on the records of one county to make way for a judgment creditor of another county, in the appropriation of the proceeds of a sheriff’s sale, is unknown in the history of judicial sales in this commonwealth. When Mr. McGinnis elected to place his lien in Cumberland county, on an estate encumbered there, he manifested to the other creditors of L. Herchelroth that he was content to rely on it as sufficient for his purpose. They, perceiving that choice, speculated on their chances by placing their liens on the real estate in Franklin. To postpone and displace such creditors, under the pretence of equity by substitution, would be an abuse of this equitable discretion, as exercised by the courts, and by making the liens on real estate in one county dependent on the liens on other real estate in another county, by different creditors, so as to shift and displace them, would render uncertain the priority and security of liens on such real estate, and embarrass beyond measure the courts in the distribution of the proceeds of sheriff’s sales. It is the opinion of the court that there was no error by the court below in refusing the substitution asked by Mr. McGinnis, and decree of appropriation is affirmed.