Shrewsbury Savings Institution's Appeal

Mr. Justice Paxson delivered the opinion of the court, It is conceded the judgment held by the appellant against Henry Seitz, No. 553, April Term 1875, was given as collateral security. In the condition of the bond it is expressed to be “ as collateral security for sundry notes given or drawn by the said Henry Seitz, or endorsed by him, or by said Samuel. Seitz & Co., and held by aforesaid Shrewsbury Savings Institution.” The note for $700, which is the subject of the present contention, was not in existence at the time the judgment was given, but the auditor finds that it is a renewal of other notes held by the Savings Institution, appellant, at that time. The fund for distribution is the proceeds of real estate of said Henry Seitz; the auditor and the court below held that the condition 'of the bond did not cover the renewals, and excluded the $700 note from participation in the distribution. [312] There was no agreement that the bond should stand for the renewals. We must look therefore at the legal effect of the condition. . It was contended by the appellees, who are subsequent judgment-creditors, that it was collateral to the notes merely, and not to the debt represented thereby; that the lifting of the old notes by the renewals was a novation, and satisfied the condition of the bond. The distinction between the notes and the debt is exceedingly refined. If the judgment is collateral to the notes it is also collateral to the debt, for the reason that the notes are but the evidence of the debt, with a promise to pay it. Has the debt been paid ? As between the parties to a note, it has never been held that a renewal was payment, unless so accepted and intended: Hart v. Butler, 15 S. & R. 162; Weakly v. Bell, 9 Watts 273; Hacker v. Perkins, 5 Whart. 95; Oliphant v. Church, 7 Harris 318; Reed v. Defebaugh, 12 Id. 495; Brown v. Scott, 1 P. F. Smith 357. It follows, that the indebtedness for which the judgment was given as collateral being still unpaid, Seitz, the debtor, has no standing to allege that the note is not protected by the lien of said judgment. It is said, however, that as to the subsequent judgment-creditors the condition of the bond cannot be extended to cover the renewals. The latter, however, are bound by the act of their debtor. They have no higher equity than he has, and it is too plain for argument that he has no equity to be relieved of the lien of appellant’s judgment without payment of the debt for which it was given as collateral. Ayres v. Watson, 7 P. F. Smith 360, and Moorehead v. Duncan, 1 Norris 488, have no application. In the one case, there was the equity of a surety; in the other, of a bona fide purchaser. The appellees are not purchasers: Rhodes v. Wilson, 4 Yeates 38; Huston v. Fortner, 2 Binn. 40; Cover v. Black, 1 Barr 493. They have no interest in the property bound by their judgments; they have a lien only. A purchaser, however, stands upon a different footing. He buys and pays for the land. He has an equity to have it exonerated. But a judgment-creditor, as was said by Chief Justice UlBSON, in Cover v. Black, supra, “stands on. the foot of his debtor,” and as the renewal of the notes, under the protection of the judgment, did not impair the lien of it between the original parties, it did not impair it between the appellant and the appellees. It is prop'er to remark that in Moorhead v. Duncan the bond of indemnity stipulated for a single renewal of the notes. This would seem to exclude any subsequent renewals upon the maxim expressio unius est exclusio alterius. I do not mean to say that a case might not arise in which a subsequent judgment-creditor would have an equity superior to that of his debtor; as, for instance, where the cancelled notes had been exhibited to him, and he had loaned money on the faith of it. But we have no such question before us. These appellees have not [313] shown any such equity, nor any equity whatever. We are of opinion that the appellant is entitled to have the said note of $700 paid out of the fund. The decree is reversed at the costs of the appellees, and distribution awarded in accordance with the foregoing opinion.