Warren v. Sennett , 1846 Pa. LEXIS 181 ( 1846 )

Gibson, ,C. J.

This case has been so complicated with unnecessary pleadings, and so loaded with superfluous details, that, for the sake of perspicuity, it is necessary to clear it of them. In Substance it is this. J. S. Sennett, Williams, Cochran, and Graha'm, purchased a lot-from Warren, paid part of the purchase money, and gave bond with warrant, on which judgment was entered for the rest. They made partition among themselves, and agreed to pay separately for their shares,. Warren taking back the legal title he-had conveyed to them, and reconveying separately to them their respective shares: an arrangement he sanctioned by purchasing back the title on his own.execution. At the day for the final execution of it, however, J. S. Sennett was unable to perform his part of it; and the judgment before us, in which he and P. Sennett appear as principals, with Williams and Graham as sureties, was taken as so much cash; but the deed for his part was made to Williams, with an understanding that he might redeem it by payment within a year. He never did redeem it, and Williams, who paid the judgment, and now is the absolute owner of thé property, insists on being substituted for Warren, and on having the judgment levied for his use on two other lots bound by it, but subsequently sold by J. S. Sennett to P. Sennett and Lester. . _

It is evident, at'a glance, that this cannot be done. To sell these lots for J. S. Sennett’s 'debt, after Williams had become the owner of his property and the principal debtor for it, would compel third parties to put just so much of their proper money into his pocket. What is his supposed equity? tie went into the judgment as a surety, but under an arrangement .which might, and eventually did, make him the purchaser of the property and principal debtor; for it was no part of the bargain that he was to get the property, and that any one élse was to pay for it.. What is the money which he attempts to extract from these two lots ? It is the price which he paid for property of which he now is the absolute owner, and which, were he to succeed, he would get for nothing. When he took J. S. Sennett’s. place in thé purchase, he took not only his property but his responsibilities, and he consequently ceased to be a surety ; for that a surety may, in the course of events, become a principal, is shown by the Bank of Pennsylvania v. Winger, 1 Rawle, 303. On that ground there is an end of his equity; and there is still another on which it' must fail. J. S. Sennett himself, having sold the'two lots to P. Sennett and Lester', could not have demanded to have the judgment executed on them in ease of himself and 'to the prejudice of his. vendee's. The principle of Nailer v. Stanley, 10 Serg. & Rawle, 450, shaken for a time by The Corporation v. Wallace, 3 Rawle, 109, but more firmly established than ever by the decision in Cowden’s Estate; 1 Barr, 279, is directly applicable to the case, and decisive of it; for Williams stands in the place of J. S.. Sennett, and is, consequently, affected by whatever would affect him. Did he even retain his character of surety, there would be equity against equity; and the judgment would stand discharged by actual payment at law.

Judgment affirmed. ■