Kelchner v. Forney

The opinion of the court was delivered by Lowrie, J. Though there are several of what may possibly be called exceptions of fact to the auditor’s report, yet we do not discover that any of them are well founded. There was an error in law, and that has been properly disposed of by the court below. When the guardians settled with their wards and paid them the shares to which they were entitled, that could in no proper sense be called a payment of the recognisances by which those shares were secured on the partition of the real estate, for it was not the recognisor that paid it. It was merely an advance of the amount by. the guardians to their wards, and neither the recognisor nor his creditors can claim the merit or the benefit of it: The recognisances, not being discharged, still stand for the benefit of those equitably entitled to them. When the guardians advanced the money to their wards they became entitled to the assignment of the securities, and equity treats them as assigned. The court carried out this principle by their decree, but they followed the auditor in a mistake, by which the guardians would be the losers of $631 of interest.- The decree must be affirmed with this correction. The decree of the Common Pleas is affirmed, with this exception, that the sum finally allotted to George Fox and Jacob Forney, guardians, &c., is $3682, instead of the sum allotted in the said decree, and the balance, subject to the costs of these appeals, is allotted to Joseph E. Peters on his judgment.