Hoye v. Penn , 2 H. & G. 473 ( 1828 )

Martin, J.

delivered the opinion of the Court. We cannot sanction the rule laid down by the chancellor in this case, and on which his last decree is founded.

The original decree directed, that the trustee should, in the frst instance, sell so much of the lands-of Penn as would be sufficient to raise the one half of the debt, and so much of the lands of Waters as would be necessary to make the other half; it further ordered, if a sufficient sum should not be produced by the first sale to discharge the debt, the trustee should proceed to sell the residue of the lands of both for that purpose. This course of proceeding was directed for the benefit of the debtors, as a matter of equity between them, but not to operate ultimately to the prejudice of the creditor. It was a joint-debt due by Penn and Waters, each party was answerable for the whole; and we think it a clear position, that w'here a creditor has a right to resort to the joint and several funds of two debtors for the payment of his claim, the chancellor has no authority to limit that right, and decree, if the funds of one debtor shall not be sufficient to discharge the one half of the j|ebt, the creditor shall not look to the other debtor for the deficiency. In this case all the lands of both Penn & Waters v/cre sold under the decree, and a fund, more than sufficient to pay the debt, was produced by the sale. Whether this sum’ was made from the sale of Penn’s lands, or Water’s lands, is a matter of no import to Hoye. He is not interested in the inquiry. There is a fund in the hands of the trustee, or court of chancery, from the sale of lands answerable for his debt, and he is entitled to the whole amount of it, before the representatives of either Penn or Waters can have a claim to any part.

It has been contended that the sale made by the trustee, and the report of the auditor founded on it, and directing how the supposed surplus should be disposed of, having been confirmed by the chancellor, Hoye is concluded by it — that he is now too late — he ought to have made his objection before the confirmation, and while the subject was open for examination. This would be requiring an impossibility of Hoye. ,/2t the time the sale of the trustee and report of the auditor were confirmed, it was not known any objection against the proceedings existed. The inability of the purchaser of Waters’s’ land to pay, did not then appear, nor was it disclosed until long after the confirmation. No laches, therefore, can be imputed to him; and it would be a strange system of equity, t© deprive a man of his debt for not making a defence, at a time ijr/hen no defence existed,

DECREE REVERSE»,