Borland's Appeal

The opinion of the court was delivered, January 3d 1871, by Shakswood, J. — It is certainly true that an auditor appointed to distribute the proceeds of a sheriff’s sale cannot go behind the judgment of a court of competent jurisdiction either to inquire into its regularity or its merits; but it is equally true that he is not precluded from receiving testimony to show that since its ren [473] dition, it has been paid or otherwise satisfied: Estate of J. B. & C. W. Dyott, 2 W. & S. 557. It must be conceded that the judgment entered in favor of Huckenstein and Eisenbeis, upon Alpert & Kohler’s bond conditioned “ that in default of any quarterly payment of rent the said Huckenstein and Eisenbeis may immediately issue execution for the whole amount of the said obligation,” upon the forfeiture of the bond became a security to indemnify them, and that they were entitled to all the indemnity such an instrument could legally afford them. They had no right, however, to take execution for more than was necessary to their indemnity: McCann v. Farley, 2 Casey 175. At the time they sued out execution they may have had a right to collect the full amount of the penalty of the bond and hold it as security to indemnify them from the claim of the landlord for the accruing rents up to the time of the expiration of the lease. No question has been made a-s to that here. But if at the time of the report of the auditor and award of distribution it appears that all liability, as sureties, for the rent is ended — for example,'that the lessor has accepted a surrender of the lease — surely they have no claim upon the fund; they cannot prevent it from going to other creditors of the tenant. Now such is the case here, as it appears from the facts found by the auditor. The arrears of rent up to the day of sale were paid out of the fund. At the sale Huckenstein and Eisenbeis purchased the leasehold, they became assignees of the term, and liable as such assignees for the subsequently accruing rent. They had possession and enjoyment, or what is the same thing, the right to possess and enjoy the demised premises: 4 Kent Com. 96, 97; Woodfall’s Landl. and Ten. 166, 167. It' is true that this liability will continue only so long as they continue assignees. They may get rid of it at any time hereafter by an assignment to another, even to a beggar. It is founded not upon privity of contract but upon privity of estate, and lasts only so long as that lasts: Ibid. This seems to be the point upon which this controversy hinges. Huckenstein and Eisenbeis maintain that the rental value of the premises may hereafter fall, and they may thus be subjected to a loss ultimately for which they are entitled to indemnity. It must be agreed, however, that there is no legal liability now either in presentí or futuro. As long as things continue as they now are Huckenstein and Eisenbeis can never, call upon Alpert & Kohler to indemnify them for any payment of rent they may be compelled to make. In consideration of the assignment of the lease, they have taken that upon themselves as principals. Waiving the consideration of the question whether upon an assignment of the lease by them hereafter, the only mode in which they can shake off this liability, their claim to indemnity would, revive — which would seem contrary to the maxim that a right to a thing personal once suspended is gone for ever — yet [474] surely it is not equity to put an indefinite amount of money belonging to the debtors, and rightfully to he paid to their other creditors, into the hands of Huckenstein and Eisenbeis to hold as indemnity against so remote a contingency. We are of the opinion that the distribution reported by the auditor was right, and the exceptions ought to have been dismissed and a decree made conformably thereto. It is a case, however, in which we think the costs of this appeal should be paid from the fund. Decree reversed, and record remitted to the court below that a decree may be there made in conformity with this opinion.