Estate of Kelchner

Per Curiam, The question raised on this appeal may be stated as follows: An execution creditor agrees with a subsequent execution creditor that upon distribution of the fund arising from the sheriff’s .sale about to be made, the latter shall have priority. At this time these were the only creditors who had executions in the .sheriff’s hands. Is it a valid reason for postponing the lien of the latter’s execution in favor of the lien of a third execution creditor, that the judgment upon winch the first execution issued was fraudulent as to creditors, and the second execution •creditor knew it at the time the above agreement was made ? We do not see how it can be. “He who has the advantage, whether he gets it by the preference of the debtor, or by his •own superior vigilance, is entitled to what he wins, provided he takes no more than his honest due : ” Chief Justice Black in Covanhovan v. Hart, 21 Pa. 495. By his superior vigilance, or if you choose, by the preference of the debtor, the second •creditor had priority over the third; and when he subsequently compelled or induced the first to get out of his way, he obtained no advantage in the distribution which the law would not have given him if he had contested the validity of the prior execution .and had established its fraudulent character. But he was not bound to contest it for the benefit of creditors coming after him. If he had contested it the third creditor would have been in no better position than he is in now. The second creditor did not step into the shoes of the first creditor nor make himself a party to her fraud nor do anything to make it successful as against other creditors. He simply induced her to step out of his way and not to assert her prima facie priority as against him. This h.e had a right to do, without consulting other creditors subsequently issuing executions and informing them of the arrangement. “ One creditor of a failing debtor is not bound to take [598] care of another: ” Covanhovan v. Hart; supra. That the second creditor secured a position without litigation which the law would have given him after a contest cannot, therefore, be a fraud upon the third creditor. It follows that no error was committed in awarding the fund to the second execution creditors, even though the first execution was fraudulent. All the assignments of error are overruled. The decree is affirmed, and the appeal dismissed at the costs of the appellants.