Borland v. Murphy

Mr. Justice Paxson delivered the opinion of the court, November 17 th 1879. The second assignment of error raises the only question in this case not ruled by Murphy v. Borland, just decided. By the plaintiff’s sixth point, the learned judge was asked to instruct the jury: “ That all moneys paid to the widow under order of sequestration at No. 1217 December Term 1874, must be first applied to the arrearages of dower before the current quarterly instalments; and if the sequestrator has paid her since his appointment an amount [94] sufficient to cover the instalment claimed in this action, and all arrears of dower down to the expiration of Borland’s tenancy, it must be applied to this claim, and defendant is not entitled to a verdict.” The court declined so to charge. The order of sequestration referred to directs “ that said sequestrator do apply said rents, issues and profits: 1. To the payment of the taxes due or to become due on said premises; and 2. To the dower of said Margaret McClurg and any arrears thereof charged on said premises.” It is not denied that the whole amount of rents received by the sequestrator and paid over to Mrs. Mc-Clurg does not equal the dower which has accrued since his appointment. The payments made by the sequestrator were on account of the dower generally, without appropriation to any particular portion. We find nothing in the order of sequestration requiring such appropriation. The plaintiff, however, invokes the doctrine of appropriation of payments, and says that the payments made by the sequestrator must be applied to that portion of the dower first due, which includes the dower distrained for. This proposition means this, that neither party having made an appropriation, the law will apply the payments in such manner as to do the creditor the most harm; that is, to the payment of that portion of her dower for which she has security, leaving the unsecured portion unprotected. I do not understand the law to be so. On the contrary, the appropriation should be in the way most beneficial to the creditor and to the debt least secured: Pierce v. Sweet, 9 Casey 151; Shenk’s Appeal, Id. 371; Johnson’s Appeal, 1 Wright 268; Foster v. McGraw, 14. P. F. Smith 464; McQuaide v. Stewart, 12 Wright 195; Smith v. Brooke, 13 Id. 147; County of Schuylkill v. Commonwealth, 12 Casey 524; McKelvey v. Jarvis, 6 Norris 414. It was urged, however, that the case now under consideration did not come within the above well-settled rule, for the reason that the plaintiff is an innocent third party, if not a surety. We need not discuss the question how far the principle cited is applicable to the case of a surety, for the plaintiff does not occupy such a position. Nor is he entitled to any special consideration as an innocent party. He remained upon the premises after the first distress with knowledge that his goods thereon were liable for the dower. Judgment affirmed.