Hoff's Appeal

Chief Justice Agnew delivered the opinion of the court, The liens against Phillips, the owner of the estate in question, stood in this order, viz.: Two mortgages to Nichols, a judgment of Henrietta Addams, and a judgment of Rufus Addams, these all in [42] 1870. Then two judgments in 1872, and lastly, Hoff’s mortgage in 1873. In December 1874 Phillips acquired title to the property in question. In March 1875 Henrietta Addams revived her judgment against Phillips, and it then became a lien against this after-acquired property. In July 1875 Phillips conveyed this property to Reiff bona fide and for a full consideration. In April 1876 the property bound by the Nichols mortgages, the judgment of Henrietta Addams and'the-Hoff mortgage was sold at sheriff’s sale and the proceeds applied to the Nichols mortgages, the judgment of Henrietta Addams and part of the judgment of Rufus Addams. Hoff then got an order subrogating his mortgage to the judgment of Henrietta Addams. This was done without notice to Reiff, the purchaser of the after-acquired property. Hoff was proceeding to sell this ^property on the H. Addams judgment, when Reiff asserted his process, and the court revoked the .former decree of subrogation. The simple question is, whose equity is superior, Reiff’s or Hoff’s. It is contended that Hoff’s is, because H. Addams’s revived judgment was a prior lien when Reiff purchased. If Phillips, the defendant, were the party contesting Hoff’s equity, there is no doubt that he must give way. But this is not a mere question of lien, but of equity in the administration of a matter of pure benevolence; and benevolence to Hoff, which is not of right, cannot be administered by ruining others. ' Gibson, C. J., said in Miller v. Jacobs, 3 Watts 477, “ The rule which gives a separate creditor the exclusive enjoyment of his own peculiar fund is founded in benevolence, and regulated in its application by the nicest principles of justice, for which reason it will not be enforced to east the debt on one who is but surety, or is not otherwise bound to bear it.” This principle has been frequently recognised: McGinries’s Appeal, 4 Harris 448. Now when Phillips sold to Reiff he had a perfect right to sell and Reiff to buy so far as Hoff was concerned. Hoff had no right at law to interfere. He had no lien on the after-acquired property sold to Reiff and his mortgage was not taken in view of this property, as bound to others. The only risk Reiff took upon himself was of the judgment of Henrietta Addams. When she was satisfied his property was cleared of her lien. Her judgment was extinguished by the sale of Phillips’s other property. Phillips then stood in the relation of principal to Reiff, for by the covenant in his deed contained in the words “ grant, bargain and sell,” he was bound to Reiff to remove the encumbrance from his property. We have, therefore, the case of one who, in fact, stands ..superior to a surety, who was a bona fide purchaser of the property for a full consideration, who had no knowledge in fact of the lien of Henrietta Addams’s judgment, who owed no duty to Hoff, upon whose land Hoff had no legal claim, and from which the burthen of Henrietta Addams’s judgment was removed by a legal extinguishment of her debt. It is clear, therefore, that Hoff has no equity which he [43] can work out, except by displacing a bona fide purchaser, who is prior in time, superior in claim on Phillips, the common debtor, and who must losé all his money in case he is displaced. When he purchased Hoff had no lien on his land, and no equity to look to property not owned by Phillips when Hoff took his mortgage, and which then was n.ot bound to others as a security for their liens. It would not be pure benevolence to substitute him to the injury of Reiff. The court below was, therefore, right in revoking the improvident order of subrogation made without notice to Reiff, and leaving. the parties as they were when the proceeds of the sheriff’s sale extinguished the Henrietta Addams judgment. Decree affirmed at the cost of the appellant and the appeal dismissed.