Conser's Appeal

The opinion of the Court was delivered, October 3d, 1881, by Sterrett, J.: The question is whether the facts in this case were sufficient to justify the Court in making the order of subrogation. In May, 1875, a judgment was entered against A. B. Conser in favor of D. K. Heckman for $1000, as collateral security for the payment of a note made by the former to the order of the latter, and by him indorsed to the order of J. C. Motz & Co. That judgment became a lien on two parcels of land then owned by the defendant, A. B.' Conser. Within a month thereafter he conveyed one of them to his father, the appellant, for the consideration of $3400, payable in several instalments extending over a period of three years. Shortly after the sale an agreement was entered into between the vendor and vendee, by which the payments [131] were to be applied, first, to tbe note above mentioned, and then to the note held by the Lock Haven National Bank, etc., as therein specified. That agreement was executed on June 21st, 1875, three days after the date of the conveyance from the son to his father. In December following John A. Marshall obtained judgment against the son, A. B. Conser, for §700, and on January 8th and 25th, 1876, Smith and Seltzer, and Artman, Dillinger & Co., the appellees, respectively obtained judgments against him, the former for §211.88, and the latter for $105.02. The three last-mentioned judgments in their order became liens on the remaining piece of land, and, by virtue of an execution issued on the Marshall judgment, the same was sold by the sheriff' for $800, which was distributed as follows, to wit: $288.45,balance in full to the Heckman judgment; $464.67 to the Marshall judgment, debt, interest, and costs; and the residue to the Smith and Seltzer judgment on account, leaving the balance of the lat-t.ér and the whole of the Artman, Dillinger & Co. judgment unsatisfied. These two creditors then petitioned the Court for an order subrogating them respectively to the rights of Heckman in his judgment to the extent that the same was paid out of the proceeds of the sheriff’s sale. In support of the applicationit was urged that it would be inequitable to take'part of the fund, on which alone petitioners had a lien, and apply it to the satisfaction of the balance due on the Heckman judgment, -which Leri Conser, the appellant, had agreed to pay out of .the purchase-money of the lot conveyed to him. On the other hand the application was resisted by appellant on the ground that there was no equity to support the subrogation, and that having paid the whole of the purchase-money of the lot conveyed to him, the lien of the judgment against his lo.t should not be preserved by an order of subrogation. The allegation that the purchase-money was fully paid was disputed; but aside from that.the appellees had no right to enforce the judgment against land which appellant had acquired before they obtained their judgment against his vendor. There was no privity of contract whatever between them and appellant, though there was between him and A. B. Conser. If appellant wms indebted to the latter that indebtedness was the subject of attachment in execution at the suit of A. B. Conser’s creditors. Nor were the appellees in a position to successfully invoke the equitable principle that when a creditor has a lien on two funds in the hands of the same debtor and another creditor has a lien only on one of the funds, the former may be compelled to levy his debt out of the fund to which the latter cannot resort; or, what is tantamount thereto, if the former takes his money [132] out of the fund on which alone the latter has a lien, he may to that extent be subrogated to the rights of the former as against the other fund. This equitable rule does not apply except in cases where both funds are in the hands of the common debtors of both creditors, which is not the case here: Ex parte Kendall, 17 Vez., 520 ; Ebenhardt’s Appeal, 8 W. & S., 327 ; Lloyd v. Galbraith, 8 Casey, 108. In one of these cases the principle applicable to a state of facts similar to the present case is fully discussed. A judgment had been obtained against a debtor who then owned three several tracts of land. He afterwards sold one of them and took a note for part of the purchase-money, coupled with an agreement to pay the same on the judgment. Subsequently other judgments were obtained and became liens on the two remaining tracts, which were then sold on an execution issued on the first judgment, and the proceeds applied to payment of it in full. The junior judgment creditors then obtained an order subrogating them to the rights of the first judgment creditors so far as tp allow them to collect a sum equal to the purchase-money of the tract sold by their debtor, but this Court held, on the principle above stated., that they were not entitled to the order, and it was accordingly reversed : Ebenhardt’s Appeal, supra. We are of opinion that the appellees did not bring themselves within the equitable rule recognized in the cases above cited. The order of June 29th, 1880, is reversed and set aside, and the rule to show cause, etc., is discharged.