Yeatman's Appeal

Mr. Justice Gordon delivered the opinion of the court, February 26th 1883. The appellant held the bond of Carlton J. Passmore, the testator, for the sum of five thousand dollars, which was secured by a mortgage on certain of the real estate of the obligor. Some time after the death of Carlton J. Passmore, his executor and legatee, Wills Passmore, acting under the authority of an order of the Orphans’ Court, sold'the real estate for the payment of debts and legacies. This sale was confirmed December 12th 1881, and on the 8th of May 1882, the executor paid over to Yeatman the full amount of the principal of his bond, but refused to pay the interest accruing between those dates. Before the Auditor, who was appointed to make distribution of the money raised from the sale above mentioned, the appellant presented a claim for this interest ($128.90), and had it allowed. To this allowance an exception was taken, which was sustained in the court below, on the ground that the interest on the bond ceased at the time of the confirmation of the executor’s sale. Had the estate of Passmore been insolvent, the' doctrine assumed by the court below would have been unexceptionable, for in that event it would have had the support of all the authorities from Ramsey’s Appeal, 4 Watts 71, down to the case of the Brownsville Bank, 15 Nor. 347. But Passmore’s estate was entirely solvent, and the sale was not made on the motion of tho mortgagee, but upon the motion of the executor and for the purpose of the settlement of the estate. Under these circumstances, we cannot understand why the appellant was not entitled to his whole claim, debt and interest. There is a very good reason why a defendant, as in Strohecker v. The Bank, 6 Watts 96, should not be charged [301] with interest after the return day of an execution levied upon his property, for the creditor has thereby paid himself by a sale of his debtor’s goods or lands, and the money thus made is then in the hands of the sheriff, who occupies the position of a trustee or bailiff for the plaintiff. If, however, as is admitted in the case cited, the defendant, by his interference, delays the payment of the money to the plaintiff, he is chargeable with the accruing interest. So, as in Ramsey’s Appeal, 4 Watts 71, where the lands of an insolvent estate are sold for the payment of debts; there is also a good reason why the interest upon those debts should stop upon the confirmation of the sale, for the fund then belongs to the creditors, and they are entitled to distribution as of that time, hence, there is no fund left for the payment of subsequently accruing interest. Rut even this rule, as we find by the Brownsville Bank case, above cited, has its exception, foi it was there ruled that when the fund continues to draw interest after the date of the confirmation of the sale, the creditor is entitled to his proportionate share thereof. Nor is the case of the Carlisle Bank v. Barnett, 3 W. & S. 248, without force, as authority in the question before us. There Barnett was compelled to pay the accruing interest on the obligation, in which he was surety, though by a previous decree of the court there had been awarded to the bank the full amount of its claim from a fund raised upon a collateral judgment. But, as was said by Mr. Justice Sergeant, in that case, this appropriation would have been payment had it been immediately available, but as it was locked up in court, and was not immediately available, there was no payment until the money came into the possession of the bank, hence the liability of the parties to the original obligation continued. The same language may well be applied to the case in hand. By the executor’s sale there was more than enough money raised to have satisfied Yeatman’s lien, and had it been immediately applied to the payment of that lien there would have been, an end to all controversy, but it was not so applied ; the appellant had to await the motion of the executor, and so it happened that the claim remained unpaid until some six months after the confirmation of the sale. On what principle, then, is Yeatman to be made to forfeit a substantial part of his bond? Or how can his debt be said to have been paid before he got the money for it? It is true this was an official sale, and by it the lien of the mortgage was extinguished. But what of that ? It did not extinguish the debt secured by the mortgage ; that remained until it was paid, so that, in effect, the sale had no more significance than if it had been made under a power in the will. It was made for the settlement of a solvent estate ; the money went to the executor, and it was only through him [302] that Yeatman could receive it. The delay was caused by no act of the appellant, nor by any judicial necessity, but by the executor, and for the convenience of the estate which he represented, hence,'there is no reason why the appellant should not have had full paymeut of his claim, debt and interest. The decree of the court below, so far as it sustains the exception to the auditor’s report awarding to the appellant the sum of $128.90, the amount of interest due on his bond after December 12th 1881, is now reversed and set aside at the costs of the appellee, and the auditor’s report, as to that amount, is now restored and confirmed.