Devor's Appeal ( 1850 )

The opinion of the court was delivered by

Coulter, J.

I dismiss from the case all considerations arising from the principle of subrogation or substitution, because that principle, although it may in some cases accomplish high purposes of equity, yet like a sharp edged tool, unless it be discreetly used, is apt to wound somewhere. The facts do not warrant or require its application, and I would rather avoid than invite unnecessary complication. The money in court to be distributed, is the product of the sheriff’s sale of the land subject to the liens of the contesting parties. The money is in place of the land and represents it. According to the relative position of those liens on the land, so is their relative positions in regard to the money in court. At the time McGowan and McKeehan gave the mortgage to Cathcart, they were the owners of the whole interest and estate in the land, subject to certain liens: the Postley mortgage, the Frederick Watts’ judgment, and the balance of the Fulwiler mortgage. The judgment of Frederick Watts, however, was a lien upon other property not covered by the mortgages, and according to a well settled rule, it is shifted on to the fund, on which the liens next in propinquity have no hold. This does perfect equity to all parties, because subsequent judgment creditors are subordinate in equity as well as law, not only to the Watts judgment, but to that mortgage, Cathcart’s, which will be relieved pro tanto by this operation. The matter principally mooted at the bar, was whether Cathcart’s mortgage was entitled to come in on the whole fund, although it only covered one-third, and one-third of one sixth of the land, in preference to, and exclusion of junior judgment creditors. I do not well see how there can be a reasonable doubt. The mistake or confusion of ideas arises from the hypothesis that Cathcart’s mortgage covered only a specific part, one-third and one-third of one-sixth of the land, and that of course it would be entitled only to that proportion of the fund after paying the prior liens. But not so. The Cathcart mortgage was a lien on the whole and every part of the land, and if all the land but one-third and one-third of one sixth was taken away by Postley’s claim and Topley’s, then that would remain to Cathcart’s mortgage, which covered that amount of the whole land. In other words Cathcart was entitled to one-third and one-third of one-sixth of the whole heap. But if Postley’s and Topley’s claim took away three-fourths of the heap, Cathcart would be entitled to all the balance. And so of the money; Postley’s lien and Topley’s, which I consider together, were entitled to take their full measure out of the money, and if less than one-third and one-third of one-sixth remained, Catheart’s mortgage was entitled to it, because it was entitled to one-third and one-third of one sixth of the whole money. This distribution does injustice to no one. The subsequent judgment creditors had no grip on the land or the fund, until Cathcart was satisfied; their mistake lies in the assumption that they were entitled to run up their lien specifically upon that portion of the land, or rather that proportion not designated in Cathcart’s mortgage, as if their liens were of equal date, without considering that Cathcart’s lien covered every part of the land to the extent of one-third and one-third of one sixth of its value, yielding only to the prior liens.

The decree of the court below is affirmed.